CHAPTER I - GENERAL
Article 1. Definitions
Image recordings: The image recordings made or to be made by the Client - with or without the assistance of a third party - which are streamed via the Platform by the Client, whether live or not, and to which Viewers can access via the Viewer Environment.
Source code: The originally written code, in a programming language, which contains program instructions as developed by the programmer and which must be converted into a machine-readable form before being executed; the object code. Furthermore, in these Terms and Conditions, the source code shall include: all materials and/or documentation in or alongside the source code that are necessary for properly using, improving, and modifying the source code, for installation and implementation, for understanding the structure and structure of all modifications made to the Platform, whether or not in source code form.
ByTomorrow: Live-Sport B.V., trading as ByTomorrow (Chamber of Commerce number: 80164560), at the time of conclusion of the Agreement located at Newtonstraat 19A (3902 HP) Veenendaal, validly represented herein by its statutory directors Mr. M. Van Rijn and Mr. P. Van Mil.
Client Data: All data and information - including, but not limited to, data from or about Viewers - that:
- is created by the Client, its employees, other third parties who perform work on the Platform under the authority of the Client, and/or;
- is created or entered by the Viewers, and/or;
- is provided to the Client from databases that ByTomorrow maintains on the Platform for other clients, at the request and with the consent of the Viewer;
and which data and information is stored/shown on the Platform to the Client or is generated by the Platform. Personal data are also included in Client Data.
Service: The service agreed between the Parties consisting of making the Platform available for the Client to (live) stream Image recordings via the Platform, giving access to Viewers via the Viewer Environment to these Image recordings, optionally placing a mention of the Image recordings in the TV Guide, and all other optionally agreed services.
Documentation: The description of functionalities and possible uses of the Platform in any way, whether or not in electronic form, provided by ByTomorrow to the Client.
User: An employee (or other subordinate or third party working for the Client) of the Client who uses the Platform via the Client and at the expense and risk of the Client.
Usage right: The right, as further described in Article 3 of these Terms and Conditions, to access and use the Platform provided by ByTomorrow to the Client for using the Platform.
Intellectual Property Rights (also called 'IP rights'): All intellectual property rights, including but not limited to copyright, trademark, trade name, database, and domain name rights and/or related rights, registered or unregistered, in the Netherlands and abroad. Intellectual Property Rights also include, but are not limited to, applications for and/or claims to such rights and/or licenses, whether or not implicitly granted.
Viewer: A natural person who, on behalf and at the risk of the Client, gains access to the Viewer Environment and via this Viewer Environment has access to the Image Recordings made available by the Client.
Viewer Environment: A defined environment of the Platform provided by ByTomorrow to the Client, through which the Client can give access to the Viewers authorized by the Client to the Image Recordings streamed via the Platform.
Client: The customer who enters into an Agreement with ByTomorrow for the provision of the Service by ByTomorrow under these Conditions.
New Version: A subsequent version of the Platform with predominantly new or modified functionalities, whether or not released under a different name.
Maintenance: All activities to be performed by ByTomorrow on the basis of the SLA that are necessary to ensure the functionality and uninterrupted operation of the Platform and/or the Service, including preventive, adaptive, corrective, and modification maintenance;
Agreement: Any agreement between ByTomorrow and the Client, whether or not in writing, concerning the Service to be provided by ByTomorrow. These Conditions apply to the Agreement. The Agreement includes, but is not limited to, the written or unwritten agreements between ByTomorrow and the Client in these Conditions, the SLA, the Processor Agreement, and/or other attachments, websites, and documentation referred to.
Party/Parties: ByTomorrow and/or the Client.
Platform: ByTomorrow's online platform on which the Client can upload Image Recordings and through which the Client can stream these Image Recordings, whether live or not, and to which the Viewers determined and authorized by the Client have access via the Viewer Environment. The Viewer Environment is part of the Platform. Via the Platform, if agreed, other services are also provided to the Client, such as - but not limited to - chat services during livestreams, email services, and payment transactions by Viewers to the Client.
SLA: The Service Level Agreement, as included in Chapter II of these Conditions, which is part of the Agreement.
TV Gids: A website operated by ByTomorrow - separate from the Platform - on which customers of ByTomorrow - including the Client - can post a listing regarding their video recordings/recordings. The TV Guide serves as a search engine and overview of available video recordings/recordings for the Viewers in this context.
Voorwaarden: These usage terms and conditions for the use of the Platform by the Client.
Terms used in the context of personal data processing are explained in these Conditions in accordance with the provisions of Article 4 of the General Data Protection Regulation (hereinafter: "GDPR"). In addition to the terms defined in the GDPR, the following definitions are used in these Conditions.
GDPR: The General Data Protection Regulation ((EU) 2016/679)).
Data subjects: Individuals to whom personal data relates.
Data processing agreement: The agreement referred to in Article 28 of the GDPR, which is part of the Agreement.
Article 2. Structure of the Terms and Conditions
2.1. The following documents are an integral part of the Agreement and together form the Agreement. To the extent that these documents contradict each other, the following hierarchy applies. The previously mentioned document prevails over the subsequently mentioned document, unless the subsequently mentioned document states that there is a deviation from what is stated in the previously mentioned document. If higher requirements are set in a subsequently ranked document, those higher requirements always apply.
- these Terms and Conditions;
- the Service Level Agreement (SLA), as included in Chapter II of these terms and conditions;
- the Data Processing Agreement.
If the aforementioned documents refer to other documents, passages, articles, chapters, and/or paragraphs of other documents, these references and the text referred to explicitly form part of the Agreement, unless expressly stated otherwise.
2.2. Any (general) terms and conditions of purchase of the Customer are explicitly not applicable to the Agreement.
Article 3.1 License
3.1. ByTomorrow hereby grants to the Customer the revocable, non-exclusive, non-transferable, and non-sublicensable right (License) to access and use the Platform for the duration of the Agreement, subject to the terms and limitations of these Terms and Conditions.
3.2. The License also includes the right for the Customer to use any New Versions of the Platform. The License also includes the documentation provided by ByTomorrow to the Customer, including modifications thereto, if New Versions of the Platform give rise to them. ByTomorrow will inform the Customer as soon as possible by email or via its website about any such adjustments or changes.
3.3. The License also includes the right for the Customer to grant Viewers access to their own Viewer Environment, but only to the extent necessary to enable Viewers to access and view the (specifically determined by the Customer part of the) Recordings and to enable them to view these streamed Recordings. The Customer will - without prejudice to the Viewer's own responsibility - do everything necessary to ensure that the use of the Platform and/or the Viewer Environment by the Viewer does not result in a violation of the terms and conditions - in particular the terms and conditions set out in Articles 5, 6, 7, and 8 - of these Terms and Conditions. If there is reason to suspect that the use of the Platform and/or the Viewer Environment by the Viewer is such that it constitutes (or could constitute) a violation of these Terms and Conditions, the Customer will immediately inform ByTomorrow thereof.
3.4. In order to enable the Customer to use the Platform, the Customer obtains online access to the Platform through a general access domain with login name and password provided by ByTomorrow, all in accordance with these Terms and Conditions. Within that domain, the Customer can create Users and determine which (groups of) Viewers can be granted access to the Recordings within their own Viewer Environment. The Customer has the right to determine which Users and Viewers may gain access to the Platform and/or the Viewer Environment via the domain made available by ByTomorrow. The frontend and CMS are hosted by ByTomorrow. The videos are hosted by the OTT provider.
3.5. With the exception of the right of the Customer to grant Viewers access to the Viewer Environment (as referred to in Article 3.3 and 3.4), the Platform may only be used by the Customer and its Article 4. Further provisions on use
4.1. ByTomorrow is entitled to improve the usability of the Platform from time to time, in such a way that additional usability options are added through released New Versions, and/or to modify and correct errors in the Platform. ByTomorrow is not obliged to maintain, modify or add certain features or functionalities of the Platform, the TV Guide and/or its Service specifically for the Customer.
4.2. ByTomorrow is entitled at all times to make procedural and technical adjustments and/or improvements to the Platform and temporarily disable or restrict the use of the Service if it deems this necessary, for example, for preventive, corrective or adaptive Maintenance. ByTomorrow will inform the Customer as soon as possible of the temporary unavailability of the Platform and/or the temporary restricted use of the Service.
4.3. The Customer accepts the Platform in the state in which it is at the time of entering into the Agreement ('as-is'), with all visible and invisible errors and defects, without prejudice to the obligations of ByTomorrow under these Conditions.
4.4. Based on the Service Level Agreement (SLA), as included in chapter II of these Terms and Conditions, ByTomorrow will make efforts to achieve the level of Maintenance, support and availability of the Platform and/or the Service set out therein.Article 5. Customer's obligations in respect of use
5.1. The Customer uses the Platform at all times at his own risk and responsibility. The Customer is also responsible for the use of the Platform by and/or the instruction to individual User(s) as well as Viewers. The Customer is at all times responsible for damage resulting from abuse and/or incorrect use of the Platform.
5.2. The Customer bears the risk of selection, use and application - whether or not in its organization - of the Platform and/or the Service(s) to be provided by ByTomorrow.
5.3. The Customer is responsible for the activation of the Service, the proper choice and proper and adequate availability of the Internet and/or other network facilities and/or infrastructure. The Customer is also responsible for the purchase and/or proper operation of its infrastructure or that of the Viewers. ByTomorrow is expressly not responsible for the purchase and/or proper operation of the Internet and/or other network facilities and/or infrastructure of the Customer or that of the Viewers or other third parties. The Platform is provided to the Customer by ByTomorrow remotely via the Internet, without any physical carrier of the Platform being provided to the Customer.
5.4. The Customer and/or its User(s) and/or - if applicable - Viewers are not permitted to copy, reproduce and/or make the Platform (and/or the Service) available in any other way or for any other purpose than for which the Platform is remotely made available to the Customer.Article 6: Access and identification codes
6.1. ByTomorrow will provide the Client with access and/or identification codes for use of the Service. These access and/or identification codes are strictly personal and may not be transferred or made available to any third party. Klant will ensure that only authorized employees and/or other authorized persons will have access to the codes.
6.2. Client will use the access and/or identification codes provided to her lawfully and only for the purpose for which they were provided. Klant will also ensure that Users and Viewers use the access and/or identification codes provided to them in accordance with the provisions of the preceding sentence of this article.
6.3. ByTomorrow is at all times entitled to change the access and/or identification codes assigned to Klant.
6.4. ByTomorrow is not liable for any misuse or loss of access and/or identification codes and may assume that Users and/or Viewers who log in have permission from Klant to do so. If Klant knows or suspects that access and/or identification codes are known to unauthorized persons, Klant must inform ByTomorrow of this as soon as possible. Klant indemnifies ByTomorrow against all damage and costs resulting from such use by third parties of the Service.
6.5. Klant has the option to send the relevant Viewers an email with a deep link for the relevant access for providing access to (the part of) the Recorded Images within her Viewer environment that has been specifically determined by Klant from the Platform. Klant is responsible for sending the aforementioned deep link to the correct Viewers. Klant expressly acknowledges that this email with deep link is not secured with access and/or identification codes, so ByTomorrow cannot guarantee that unauthorized persons will not gain access to the Recorded Images referred to in this article via this deep link. Klant also warrants that the dispatch of such email to the Viewer is lawful and does not qualify as spam, etc. Klant indemnifies ByTomorrow against any damage and/or claims of Klant as well as Viewers and other third parties, including if and to the extent that Viewers and/or other third parties have gained unauthorized access to these Recorded Images and/or the Platform or if the dispatch of such emails is unlawful.
Use of the Service and availability
7.1. ByTomorrow will make every effort to provide the Service with care in accordance with the provisions of these Terms and Conditions and the SLA. All services provided by ByTomorrow are performed on a best efforts basis.
7.2. The clielient will take all necessary steps to prevent the Service from being infected with viruses, malware, trojan horses, DDoS attacks and/or other similar threats. If, in the opinion of ByTomorrow, a danger arises for the functioning of the systems of ByTomorrow and/or the Service, in particular through poorly secured systems or activities of viruses, Trojan horses or similar software, ByTomorrow is entitled to take all measures that it deems reasonably necessary to avert or prevent this danger.
7.3. The Client is at all times responsible for controlling the settings, use and application of the Service, as well as the way in which the results generated with the use of the Service are generated and used, including but not limited to the (live) streaming of Image Recordings. The Client is also responsible for the security procedures and adequate system management within its organization. Finally, the Client is responsible for the instruction and/or use by Users and/or Viewers, regardless of whether they are in an employment relationship with the Client, unless expressly agreed otherwise in writing.
7.4. ByTomorrow does not guarantee that the result of the Service, including but not limited to the (live) streaming of Image Recordings and the provision of access to these Image Recordings to authorized Viewers of the Client, are correct, complete and suitable for the purpose for which the Client intends to use it. ByTomorrow is never liable for damage or claims by the Client, Users, Viewers and/or third parties as a result of the streamed Image Recordings via the Platform. The Client indemnifies ByTomorrow against damage and/or claims from the Client as well as third parties in this regard.
7.5. The Client, its User(s) and Viewers shall only use the Service in a lawful manner. ByTomorrow is not liable for any damage related to unlawful use of the Service, and the Client indemnifies ByTomorrow against claims by third parties in this respect.
7.6. The Client shall not transfer or otherwise make available (the content of) the Service, the Platform and the TV Guide to any third party, other than as agreed in these Terms and Conditions.
7.7. The Client must at all times:
- prevent any unauthorized access to the Platform;
- prevent any unauthorized use or copying of the Service and otherwise prevent unauthorized use of the Service;
- immediately inform ByTomorrow in writing of all relevant facts and circumstances as soon as the Client becomes aware of any unauthorized use of the Service.
7.8. The Client, Users and/or Viewers are not allowed to: 1) post or offer Client's Image Recordings and/or Data on the Platform and/or TV Guide, or make statements that may be considered in violation of the law, public morals, or decency, that infringe on (Intellectual Property) rights of ByTomorrow, its licensors and/or third parties, or 2) otherwise act in a defamatory or unlawful manner towards ByTomorrow and/or third parties using or via the Platform and/or TV Guide, or 3) in any other way harm the rights of ByTomorrow and/or third parties. The Client indemnifies ByTomorrow for all damages and claims from third parties insofar as it is unable to comply with the provisions of this article.
7.9. The Client bears full responsibility for the legality of the Image Recordings, Client's Data and/or any other content posted on the Platform by the Client or on behalf of the Client, or offered via the Platform. The Client indemnifies ByTomorrow for all damages and/or claims from third parties, including Viewers, if the Client fails to comply with the provisions of the previous sentence.
7.10. Under no circumstances are the Client, its Users and Viewers allowed to remove or bypass technical provisions of ByTomorrow and/or its licensors to protect the Service.
7.11. The Client may only register its own employees and persons working for the Client as Users.
7.12. ByTomorrow is at all times entitled to deny the Client's access (and via the Client, that of Users and, if applicable, Viewers) to the Service - whether immediately or with or without prior warning - either completely or partially, temporarily or permanently, to remove login accounts temporarily or permanently, to issue a warning, to terminate the Service and to refuse to grant access to the Platform and/or block and/or remove the Image Recordings streamed via the Platform, in particular - but not limited to - if:
- if the Client, a User and/or a Viewer acts in violation of these Terms and Conditions or if the Agreement ends for any reason;
- if the Client, a User and/or a Viewer acts in violation of third-party rights or applicable laws and regulations;
- if there is excessive load on systems of ByTomorrow or of third parties;
- if ByTomorrow believes that actions of the Client, a User and/or a Viewer may cause damage or liability to the Client, ByTomorrow or third parties.
Furthermore, ByTomorrow shall comply with court orders to remove Image Recordings, Client Data, and other materials, deny access to the Service to the Client, Users and/or Viewers, or other court orders immediately. Motivated requests from third parties to remove allegedly unlawful or infringing Image Recordings, Client Data, and/or statements will generally be honored by ByTomorrow, but only if ByTomorrow has been able to determine the unlawful or infringing nature of the relevant Image Recordings, Client Data, and/or statements or if it has reasonable grounds to believe that the Image Recordings, Client Data, and/or statements are unlawful or infringing. Moreover, ByTomorrow is authorized to temporarily remove the Image Recordings, Client Data, and/or statements from the Platform and/or the TV Guide to investigate a claim as referred to in the previous sentence. ByTomorrow will inform the Client in the event of removal of its Image Recordings, Client Data, and/or other statements. ByTomorrow shall in no event be obliged to reimburse paid fees or compensate any damages if a situation as referred to in this article occurs.
7.13. Unless otherwise agreed in writing, ByTomorrow is not obligated to provide (User) training and consulting support (other than the support arising from the SLA).
7.14. Unless otherwise agreed in writing, ByTomorrow is not obligated to perform conversion of Image Recordings and/or Client Data.
7.15. ByTomorrow is not required to have a backup center or other backup facilities with respect to the Platform and the TV Guide, unless otherwise agreed in writing by the Parties.
7.16. ByTomorrow may make changes to the functionality of the Platform and/or the TV Guide, as well as changes to the content and/or scope of the Service. If such changes result in a change to the Client's applicable procedures or the changes will result in a higher license fee or a higher commission percentage, ByTomorrow will, to the extent reasonably possible, notify the Client in writing (including by email) as soon as possible. If the changes result in a higher license fee or commission percentage, the Client will owe the higher license fee or the fee based on the higher commission percentage. If, as a result of a change as referred to in this article, the increase in the license fee is more than 5% or the commission percentage is increased by more than 5 percentage points, the Client may terminate the Agreement within one week of receiving the aforementioned written notification from ByTomorrow, effective as of the date the relevant increase takes effect. The Client may not terminate on this ground if the change is related to changes in relevant laws and regulations or other regulations issued by competent authorities, the change is so limited that termination is not justified, or if ByTomorrow bears the costs of this change. In the event of termination as referred to in this article, ByTomorrow shall in no event be obliged to reimburse paid fees under the Agreement or compensate for any damages.
7.17. If requested, the Client shall promptly cooperate in any investigation conducted by or on behalf of ByTomorrow regarding compliance by the Client with the provisions of these Terms and Conditions. ByTomorrow shall treat as confidential all (business) information obtained by or from the Client in connection with such an investigation, to the extent that such information does not relate to the use of the Service itself. The direct costs - the costs that the Client must incur in connection with the investigation (including the costs of the Client's personnel who assist with the investigation) are not included - associated with such an investigation shall be borne
Article 8. Video recordings
8.1. ByTomorrow is not responsible for the accuracy, validity and/or lawfulness of the video recordings. ByTomorrow is in no way obliged to (i) check such video recordings and (ii) verify the lawfulness of access to these video recordings by User(s) and/or Viewers, or to check whether they have obtained permission from the Customer to do so. Customer warrants that no third party rights oppose the streaming of these video recordings via the Platform and the provision of the streamed video recordings to Viewers. Customer indemnifies ByTomorrow against any claim of a third party based on the allegation that such provision and/or streaming of the video recordings via the Platform constitutes an infringement of any right of that third party.
8.2. Customer is solely responsible for correctly and adequately making the video recordings available and uploading them to the Platform or a video platform designated by ByTomorrow's supplier (Over-The-Top provider, OTT-provider) for the purpose of (live) streaming them via the Platform. ByTomorrow depends on the video recordings made available and uploaded by or on behalf of Customer to be able to (live) stream them correctly and adequately via the Platform. Customer indemnifies ByTomorrow against all damage and claims from Customer and third parties as a result of incorrect, defective and/or inadequate making available and uploading of video recordings as referred to in this article.
8.3. In addition, Customer is responsible for making available and uploading the video recordings, as referred to in the previous article, in a common and readable/streamable file format by ByTomorrow and its suppliers (OTT providers). ByTomorrow does not guarantee that all file formats of the video recordings made available and uploaded by Customer are suitable for streaming via the Platform. Customer indemnifies ByTomorrow against all damage and claims from Customer and third parties if ByTomorrow cannot read and stream the file format of the video recordings made available and uploaded by Customer.
Article 9. Management and deletion of Recordings and Customer Data
9.1. Through its general access domain, the Customer can manage the Recordings streamed via the Platform. In this context, the Customer can, among other things, (i) set which group(s) of Viewers have access to their Viewer environment, (ii) determine which Recordings these Viewers have access to, (iii) set whether or not the Viewers owe a fee to the Customer for access to the Recordings, etc. In addition, the Customer can send emails from the Platform to Viewers, including but not limited to emails containing access and identification codes for the Viewers to log in to the Viewer environment, or emails with a deep link leading to a specific Recording. Furthermore, the Customer can view and manage the Customer Data processed and stored on the Platform through this access domain.
9.2. Through the general access domain, the Customer can upload Recordings to be streamed via the Platform and delete Recordings already streamed via the Platform. The Customer therefore determines which Recordings are offered to the Viewers via the Platform.
9.3. Notwithstanding the provisions of the previous article, the Recordings streamed as part of the Service and the Customer Data will only be available via the Platform for the duration of the Agreement. After termination of the Agreement - in any way whatsoever - the Recordings and the Customer Data will remain available on the Platform for a period of one (1) month. After the aforementioned period of one (1) month has expired, the Recordings will no longer be streamed via the Platform and the Customer Data processed and stored on the Platform will be deleted. The Customer is responsible for timely downloading and/or saving the Recordings and/or Customer Data before the expiry of the period referred to in the previous sentence. ByTomorrow explicitly does not guarantee that the Recordings and/or Customer Data can always be downloaded in a desired or readable file format.
9.4. ByTomorrow is explicitly not responsible for the storage of the Recordings. ByTomorrow facilitates the uploading of the Recordings to the servers of its supplier(s) (the OTT provider) via the Platform, after which the Recordings are retrieved and (live) streamed via the Platform by ByTomorrow through a link and/or video signal. Therefore, the Recordings remain on the servers of ByTomorrow's supplier(s) (the OTT provider). ByTomorrow only provides the streaming infrastructure through its Platform to give Viewers access to the Recordings. ByTomorrow is therefore never liable for any damage suffered by the Customer and/or third parties as a result of the deletion, unavailability, or inability to stream the Recordings via the Platform. The Customer indemnifies ByTomorrow against any damage and/or claims by the Customer and/or third parties resulting from the deletion, unavailability, or inability to stream the Recordings via the Platform.
Artikel 10. Additionele diensten / adviesdiensten
10.1. Parties may agree that ByTomorrow provides additional services to Client, such as - but not limited to - services in the field of marketing and business models. In that case, Parties will make further agreements that will be recorded in writing in a separate agreement.
Artikel 11. (Processing of) personal data
11.1. Parties establish that ByTomorrow's Service and the use of the Platform by Client entail the processing of personal data.
11.2. In this context, Parties have separately agreed on a Data Processing Agreement. In this Data Processing Agreement, Parties have made further agreements on the processing of personal data in the context of the Service and the use of the Platform. This Data Processing Agreement is an integral part of the Agreement.
Artikel 12. Intellectual Property Rights
12.1. All intellectual property rights related to the Service, including but not limited to programming, database structure, design, functionality, source code of the Platform and TV Guide, Documentation, and all other information provided by ByTomorrow through the Service, the Platform, the TV Guide, its website, or otherwise made available to the Client, are exclusively owned by ByTomorrow and/or its licensors. The Client only acquires the right to use as described in Article 3 of these Terms and Conditions. The Agreement expressly does not include the transfer of intellectual property rights in whole or in part.
12.2. The Client acknowledges all intellectual property rights related to the Service, the Platform, and the TV Guide of ByTomorrow and will refrain from any form of infringement of these intellectual property rights. The Client will indemnify ByTomorrow for any damages and claims by third parties arising from infringement of intellectual property rights by or on behalf of the Client, Users, and/or Viewers.
12.3. The Client, its User(s), and the Viewers are not entitled to modify, reproduce, decompile, or apply reverse engineering to the Service, the Platform, and/or the TV Guide. The Client is also not allowed to take actions, either itself or through third parties, to retrieve the source code of the Service, the Platform, and/or the TV Guide. The Client also warrants that indications of intellectual property rights and/or the confidentiality and secrecy of works will not be removed or modified.
12.4. ByTomorrow is allowed to take technical measures to protect its intellectual property rights. If ByTomorrow has secured the works by technical protection, the Client is not allowed to remove such security.
12.5. All intellectual property rights of the Client, including intellectual property rights related to the Recorded Content and/or Client Data, remain the property of the Client. By using the Service, the Client grants ByTomorrow a royalty-free, non-exclusive, sublicensable license to use the Recorded Content and/or Client Data to the extent necessary for the provision of the Service and for marketing and promotional purposes of ByTomorrow. The Client warrants that it is authorized to grant this license to ByTomorrow.
12.6. If the Client identifies any infringement, of any kind, of the copyrights or other intellectual property rights related to the Service, the Platform, and/or the TV Guide of ByTomorrow, and/or if a third party claims better or older rights in this regard, the Client will immediately notify ByTomorrow. The Client will, upon first request by ByTomorrow, cooperate to help protect the intellectual property rights of ByTomorrow, in the broadest sense of the word.
12.7. Without the express prior written consent of ByTomorrow - which ByTomorrow is never obliged to give and to which ByTomorrow can attach further conditions - the Client is not allowed to take independent action - in any way - against possible infringers of the (Intellectual Property) rights related to the Service, the Platform, and/or the TV Guide, nor to defend itself - in any way - against any claims by third parties with regard to the Service, the Platform, and/or the TV Guide.
12.8. In the event that the Service, Platform and/or TV Guide and/or the Right of Use inadvertently infringes the rights of third parties or if, in the opinion of ByTomorrow, there is a reasonable chance that such infringement could occur, ByTomorrow is entitled to replace or modify the Service, Platform and/or TV Guide in such a way that the infringement is remedied and the functional properties of the Service, Platform and/or TV Guide are affected as little as reasonably possible. In such a case, ByTomorrow shall not be liable for any damages suffered by Client as a result of such modification.
12.9. If ByTomorrow is of the opinion that replacement or modification, as referred to in the previous article, is not commercially feasible, it is entitled to terminate the Agreement immediately and credit the fees still owed by Client for the relevant service, without being liable towards Client for any damages or costs incurred as a result of this termination. Fees already paid by Client shall not be subject to reversal upon termination of the Agreement. Client shall have no other rights than those described in this Article 12.
12.10. Client agrees that ByTomorrow may publicly disclose, in advertising and brochures, among other means, that Client is using the Service and may use the name and logo of Client for this purpose.
Artikel 13. Confidentiality
13.1. ByTomorrow shall not disclose, provide access to, transfer or otherwise make available the Image Recordings and Data of the Client to any third party. This shall not apply if the Client has given prior consent, a Viewer has given permission for the provision of the Data specifically relating to him/her to another client, this follows from the Agreement, the Data of the Client and/or the Image Recordings are used for marketing and promotional purposes of ByTomorrow, when a legal provision requires ByTomorrow to provide the Image Recordings and/or the Data of the Client or if ByTomorrow is obliged to disclose the Image Recordings and/or Data of the Client on the basis of an order/demand from an authorized authority.
13.2. The Service, the Platform and the TV Guide remain the property or Intellectual Property of ByTomorrow and/or its suppliers. The Client shall not transfer, sell, rent out, dispose of, hand over or grant/assign (limited) rights to the access or identification codes for the Service and Platform or the Usage Right to any third party.
13.3. The Client warrants that all data and Documentation received from ByTomorrow, which the Client knows or should know are of a confidential nature, shall remain confidential, unless a legal obligation requires disclosure thereof. The Client shall use such data and Documentation only for the purpose for which they have been provided or become known to the Client in the course of the performance of the Agreement. Data and Documentation shall in any event be considered confidential if they have been designated as such by ByTomorrow. The Client shall ensure that this obligation of confidentiality is also imposed on anyone - including Users - who acts under its authority or on its behalf, and shall ensure compliance with it. In addition, the Client shall not share such confidential data and Documentation with Viewers.
13.4. In case of violation of the confidentiality obligation as set out in this article, the Client shall immediately inform ByTomorrow thereof in writing. The Client shall provide all cooperation to take measures to enforce and defend the rights of ByTomorrow.
13.5. The obligations under this Article 13 shall apply during the term of the Agreement and after its termination.
13.6. ByTomorrow reserves the right to claim full compensation for any damages suffered by it in case of non-compliance with the provisions of this Article 13.
Artikel 14. Garanties
14.1. ByTomorrow expressly has not informed itself of the purpose for which Customer intends to use the Service and has also not investigated the organization of Customer, insofar as relevant for the Agreement. Therefore, ByTomorrow does not guarantee that the Service will function without errors or interruptions and is suitable for the purpose for which Customer intends to use it.
14.2. ByTomorrow is dependent on, among other things, the following for the quality of the Image Recordings streamed via the Platform:
- The correct, accurate and adequate uploading of Image Recordings by Customer or a third party engaged by Customer, whether live or not;
- The internet and/or network connections and/or infrastructure of Customer, the third party engaged by Customer and/or the Viewers;
- The proper and adequate operation of the services of its supplier(s), such as - but not limited to - the video platform of the OTT provider and/or the hosting services of its hosting supplier.
ByTomorrow therefore does not guarantee that the Image Recordings streamed via the Platform will at all times meet the quality and/or usability standards reasonably expected by Customer and/or Viewers. Customer indemnifies ByTomorrow for all damages and claims of Customer and/or third parties - including Viewers - in this regard.
14.3. ByTomorrow does not guarantee that the Service, the Recorded Images, and/or the Customer's Data will not be subject to misuse by third parties, which may include but is not limited to the installation of viruses and/or behavior that may be considered contrary to good morals and decency, or that third parties will not infringe on (intellectual property) rights or act in a defamatory or unlawful manner through the use of or via the Service. ByTomorrow is never liable for any damage or claims by the Customer and/or third parties arising therefrom.
14.4. ByTomorrow will make efforts to (have) defects in the Service (be) repaired within the agreed upon period (and otherwise within a reasonable period) as far as the Customer has detailed the defects in writing to ByTomorrow. ByTomorrow is never obliged to repair data, Recorded Images, and/or Customer Data - whether or not originating from the Customer and/or Users - that have been mutilated or lost in or through the use of the Service.
14.5. To remedy defects in the Service, ByTomorrow is entitled to implement temporary solutions, program detours, or problem-avoiding limitations in the Service.
14.6. If, in ByTomorrow's opinion, the repair of attributable defects and/or inaccuracies/incompleteness in or to the Service, the Recorded Images, the Customer's Data, and information provided through the Service is technically or reasonably impossible, ByTomorrow will credit the amount still owed by the Customer for the respective service provision, without any further or other liability towards the Customer. The Customer has no other rights with regard to defects in the Service and/or inaccuracies/incompleteness in the Recorded Images and/or Customer Data, other than those described in this warranty arrangement.
Article 15. Fees and Payment
15.1. Klant (Customer) shall pay the fee as agreed upon by the Parties for the Service provided by ByTomorrow.
15.2. If the Parties have agreed that Klant shall pay a fixed periodic license fee, ByTomorrow shall invoice Klant for such fee monthly in arrears. Klant shall pay the invoices of ByTomorrow in accordance with the payment terms specified on the invoice. Unless otherwise indicated, Klant shall ensure payment within thirty (30) days after the date of the invoice.
15.3. If the Parties have agreed that Klant shall pay a fee based on usage (on-demand minutes watched, live stream minutes, and live minutes watched), ByTomorrow shall invoice Klant for such fee monthly in arrears and automatically deduct the payment. Klant may request the invoices directly from the relevant Payment Service Provider in this case.
15.4. Unless otherwise indicated, all rates quoted by ByTomorrow are in euros and exclusive of value-added tax (VAT) and other government levies.
15.5. ByTomorrow is entitled to annually adjust the rates and/or commission percentages applied, effective as of January 1st. ByTomorrow shall notify Klant of any such adjustments at least two (2) months in advance. To the extent that Klant does not agree with such adjustment, Klant may terminate the Agreement (intermediately) within one month after receipt of the written notice from ByTomorrow, against the date on which the increased fee or commission percentage becomes effective. In such event, ByTomorrow shall not be obliged to make any restitution of amounts received or to compensate any damages, whether or not suffered.
15.6. Notwithstanding the provisions of the preceding clause, ByTomorrow is entitled to pass on any increases in rates of its suppliers and/or partners (including OTT providers), effective as of the date on which such a rate increase takes effect, in the fee payable by Klant to ByTomorrow.
15.7. In the event of non-payment on the due date, Klant shall be in default without the need for further notice of default. In such case, Klant shall owe statutory commercial interest as per article 6:119a Dutch Civil Code, as well as collection costs, including legal fees in and/or out of court, from the date of default until the date of full payment, without prejudice to the (other) rights of ByTomorrow. ByTomorrow is entitled to suspend its obligations under the Agreement as long as Klant is in default. Suspension by ByTomorrow of its obligations under the Agreement does not release Klant from its payment obligations under the Agreement.
15.8. In the event of disputes regarding payments, the relevant data from the administration of ByTomorrow shall constitute full evidence, without prejudice to Klant's right to present counter-evidence.
15.9. Klant shall not be entitled to set-off or suspend payment and/or the performance of obligations arising from the Agreement.
15.10. Complaints regarding invoices and/or the Service(s) of ByTomorrow shall not suspend the payment obligations of Klant.
Article 16. Duration and termination
16.1. The Agreement is concluded at the moment of (online) acceptance of these Terms and Conditions by the Customer.
16.2. When entering into the Agreement, the Parties shall agree whether the Agreement is entered into for:
- a fixed term of one (1) year, or;
- an indefinite term.
16.3. If the Parties have agreed on an Agreement for a fixed term, the Agreement will be automatically renewed after the term referred to in the previous article has expired, for a further period of one (1) year each time, unless otherwise agreed in writing by the Parties.
16.4. The Agreement can only be terminated in the cases as referred to in the following paragraphs of this article, without prejudice to the other provisions of these Terms and Conditions.
16.5. The Parties are entitled to terminate the Agreement by observing a notice period of one (1) month. Unless expressly stated otherwise in these Terms and Conditions, the Customer cannot terminate the Agreement entered into for a fixed term prematurely. ByTomorrow may terminate the Agreement prematurely.
16.6. Notwithstanding the provisions of the preceding paragraph, ByTomorrow is entitled to terminate the Agreement with immediate effect if: 1) the Customer owes ByTomorrow a fee based on usage (watched on demand minutes, livestream minutes, and watched live minutes), and 2) the Customer has not generated any income from the Platform for 60 consecutive days and ByTomorrow thus does not generate any income (anti-freezer clause). ByTomorrow shall never be liable for any compensation or damages in the event of termination as referred to in this article.
16.7. The Customer must notify ByTomorrow of any termination (for whatever reason) by registered mail.
16.8. The Customer is only entitled to dissolve the Agreement due to a substantial breach in the performance of the Agreement if ByTomorrow, in all cases after a detailed written notice of default with a reasonable period for rectification of the breach, continues to substantially fail in the performance of its essential obligations under the Agreement.
16.9. ByTomorrow is at all times entitled to terminate the Agreement without any further notice of default or judicial intervention if the Customer fails to fulfill its payment obligations under the Agreement. ByTomorrow is also entitled to dissolve the Agreement due to any other breach in the performance of the Agreement if the Customer, in all cases after a detailed written notice of default with a reasonable period for rectification of the breach, continues to fail to perform its other obligations under the Agreement.
16.10. If at the time of termination, the Client has already received performance in execution of the Agreement, these performances and the related payment obligation will not be subject to cancellation, unless the Client proves that ByTomorrow has defaulted on the essential part of those performances. Amounts invoiced by ByTomorrow for what it has already properly performed or delivered under the Agreement prior to termination remain owed, with due observance of the provisions in the preceding sentence, and become immediately due and payable at the time of termination. Payments already made by the Client at the time of termination will in any case not be subject to cancellation. The provisions in the preceding sentence do not apply to prepaid amounts for services yet to be provided in the future.
16.11. Each of the Parties may terminate the Agreement, in whole or in part, without notice of default, immediately by written notice, if the other Party has been granted – provisional or otherwise – a suspension of payments, is declared bankrupt, liquidates or terminates its business other than for purposes of a merger or consolidation of businesses, or if the decisive control over Client's business changes. ByTomorrow shall never be held liable for any restitution of funds already received or compensation for any damages, whether direct or indirect, as a result of such termination.
16.12. In all cases of termination of the Agreement, for whatever reason, the Service will no longer be made available to Client, Users and Viewers as of the termination date, and Client shall refrain from any use of the Service – in any way whatsoever. Client shall also ensure that Users refrain from any use of the Service. (All) Usage rights shall immediately lapse without any further action required upon the termination of the Agreement.
16.13. If the Agreement is terminated for any reason, the provisions that by their nature are intended to continue to apply after termination of the Agreement shall continue to apply. This shall in any case – but not exclusively – apply to the provisions in these Terms and Conditions relating to confidentiality, liability, guarantees, Intellectual Property, applicable law and competent court.
Article 17. Liability
17.1. The liability of ByTomorrow for an attributable failure in the performance of the Agreement, an unlawful act, or any other act or omission by ByTomorrow, its employees, or third parties engaged by it, is limited to compensation for direct damages. The total liability of ByTomorrow for direct damages is limited to the amount that the Client has paid to ByTomorrow under the Agreement in the contractual year preceding the contractual year in which the damaging event occurred (excluding VAT). If and to the extent that the damaging event occurs in the first contractual year of the Agreement concluded between the Parties, the total liability of ByTomorrow for direct damages is limited to the amount that the Client has paid to ByTomorrow under the Agreement in the relevant contractual year (excluding VAT). In no event shall the total liability of ByTomorrow for direct damages, regardless of the cause, exceed the amount actually paid out by the insurer in that respect.
17.2. Direct damages shall exclusively mean:
- material damage;
- reasonable expenses that the Client would have to incur to ensure that ByTomorrow's performance is in compliance with the Agreement, unless the Agreement has been terminated by the Client;
- reasonable expenses incurred by the Client to determine the cause and extent of the damage, to the extent that this determination is related to direct damages within the meaning of the Agreement;
- reasonable expenses incurred to prevent or limit damage, to the extent that the Client can demonstrate that these expenses have led to a limitation of direct damages within the meaning of the Agreement.
17.3. Any liability of ByTomorrow other than for direct damages, including - but expressly not limited to - indirect damages, consequential damages, loss and/or damage of data (including (backup of) Client's Recordings and/or Data), loss of profits, loss of turnover, loss of savings, diminished goodwill, damage caused by business interruption, damage resulting from claims by third parties, damage related to the use by ByTomorrow of goods, materials, or software of third parties prescribed to the Client, damage related to the involvement of suppliers prescribed by ByTomorrow to the Client, is excluded. Also excluded is liability of ByTomorrow for mutilation, destruction or loss of data or documents.
17.4. ByTomorrow is not liable for any damages or costs resulting from (improper) use or abuse made of access or identification codes, unless the abuse has been possible as a direct result of an act or omission by ByTomorrow.
17.5. ByTomorrow is not liable for any damages to third parties, for any reason whatsoever, arising from the actions and/or conduct of the Client, Users and/or Viewers with regard to the Service, Recordings and Client's Data, as a result of which the relevant third parties have suffered any damage. The Client indemnifies ByTomorrow against any claims by third parties in this regard.
17.6. Any liability of ByTomorrow for damages caused by and/or resulting from the use of third-party software and/or materials is excluded.
17.7. The exclusions and limitations of liability referred to in the preceding paragraphs of this article do not apply if and insofar as the damage is caused by intent, willful recklessness, or gross negligence on the part of ByTomorrow and/or its directors.
17.8. Unless performance by ByTomorrow is permanently impossible, the liability of ByTomorrow for an attributable failure in the performance of the Agreement only arises if the Client immediately notifies ByTomorrow in writing of the default, stating a reasonable period for remedying the default, and ByTomorrow remains in default after that period. The notice of default must contain a description of the default as complete and detailed as possible, so that ByTomorrow has the opportunity to respond adequately.
17.9. A condition for the creation of any right to compensation is that the Client reports the damage to ByTomorrow in writing within 30 days of its occurrence. The Client's right to claim compensation under the Agreement, on the basis of unlawful act or otherwise, shall in any event expire one (1) year after the event on which the claim or proceeding is based.
17.10. The provisions of this article as well as all other limitations and exclusions of liability mentioned in these Terms and Conditions also apply for the benefit of all (legal) persons whom ByTomorrow employs in the performance of the Agreement.
Article 18. Force Majeure
18.1. Neither party shall be deemed to have defaulted on the performance of any obligations under the Agreement if such failure is caused by force majeure.
18.2. Neither party shall be required to fulfill any obligation (excluding the obligation to compensate for additional costs as referred to in Article 18.3), including any agreed-upon warranty obligations, if it is prevented from doing so due to force majeure. Force majeure shall also include: (1) non-performance by suppliers of ByTomorrow and/or partners with whom ByTomorrow cooperates in the context of the Service, such as but not limited to OTT providers (over-the-top providers) and/or the hosting provider, (2) defects in goods, equipment, software or materials of third parties whose use by Customer is prescribed to ByTomorrow, (3) the provision of and access to Recordings by Customer, uploaded via the Platform, in a non-standard and unreadable format for ByTomorrow, (4) government measures, (5) power failure, (6) fire, (7) floods, (8) disruption of internet, computer networks or telecommunication facilities, including hacking, malware, worms, computer viruses, trojan horses, logic bombs, denial of service tools (including DDoS attacks) and/or other viruses, (9) war, mobilization and/or domestic unrest, (10) import and export restrictions, (11) work stoppages, (12) strikes, (13) business disruptions, (14) consequences of pandemics and epidemics. If the force majeure lasts longer than three months, both Parties shall have the right to terminate the Agreement in writing. In such case, what has already been performed under the Agreement shall be settled pro rata without either party being liable for anything further.
18.3. In the event of a disruption of the facilities and/or Recordings of Customer, such as disruptions of internet, computer networks or telecommunication facilities, including hacking, malware, worms, computer viruses, trojans, logic bombs, denial of service tools (including DDoS attacks), and/or other viruses, and such a disruption causes an extra burden on the Service, ByTomorrow will charge any additional costs resulting from such disruption to Customer. ByTomorrow will inform Customer of any additional burden and the costs arising therefrom in such a case.
Article 19. Transfer of rights and obligations to third parties
19.1. ByTomorrow shall at all times be entitled to transfer its rights and/or obligations or claims on Customer under the Agreement to third parties. If and insofar as necessary, Customer hereby grants its consent and cooperation to such transfer.
19.2. Customer is not allowed to sell, rent out, or otherwise fully or partially transfer its rights and/or obligations under the Agreements to third parties without prior written consent from ByTomorrow. ByTomorrow shall not unreasonably withhold such consent. However, it is entitled to impose additional conditions on such consent.
Artikel 20. Overige bepalingen
20.1. If any provision of these Terms and Conditions is invalid, the other provisions shall remain in full force and effect. In that case, the Parties shall replace the invalid provision with a valid provision in accordance with the purpose and meaning of the Agreement, and in such a way that the new provision differs as little as possible from the invalid provision.
20.2. The Agreement can only be supplemented or amended if the Parties jointly decide to do so and agree on this in writing, without prejudice to the other provisions of these Terms and Conditions. If no arrangement or provision has been made in these Terms and Conditions for a particular situation, the Parties will consult with each other regarding an addition to the Agreement that is in line with the other agreements in these Terms and Conditions.
20.3. Communications, including promises or (further) agreements, from one Party to the other Party, shall only bind the Parties if they are made or confirmed in writing by an authorized person.
20.4. Failure by one of the Parties to demand compliance with (any provision of) the Agreement within an agreed term shall not affect the right to demand compliance subsequently, unless the relevant Party has expressly and in writing agreed to the non-compliance.
Artikel 21. Toepasselijk recht en geschillenbeslechting
21.1. The Agreement and the resulting rights and obligations shall be governed exclusively by Dutch law.
21.2. All disputes that may arise between Parties as a result of or in connection with the Agreement shall be settled by the competent court of the Gelderland district court, the Netherlands.
Artikel 22. Doel en toepasselijkheid SLA
22.1. The provisions of this Chapter II (SLA) provide a further elaboration of the services provided by ByTomorrow and the service levels and conditions it applies thereto. This SLA applies to the Platform (including updates and new versions thereof) purchased by the Customer.
22.2. The provisions of this Chapter II (SLA) apply in addition to the provisions of Chapter I of these Terms and Conditions. The ranking as set out in Article 2.1 applies.
Artikel 23. Definities
23.1. In addition to the provisions of Article 1, this Chapter II (SLA) uses the following definitions:
|Availability||The ability for the Customer and Users to access, log in to and use the Platform as well as the ability for Viewers to access, log in to and use the Viewer Environment, excluding Downtime.|
|Availability percentage||The availability of the Platform expressed as a percentage and calculated in the manner described in Article 24.|
|Elapsed time||The estimate of time between ByTomorrow's Response to the Customer and the expected time of resolution of the Fault or the handling of a Support Request.|
|Downtime||Downtime includes the Platform not being Available due to a Fault.|
|Report||Report of Faults or submission of a Support Request by the Customer's contact person to ByTomorrow via the reporting channels as described in Article 26.1.|
|Maintenance||Maintenance in this SLA means the necessary maintenance to make the Platform adequate, correct, secure and fast to function, as well as maintenance to improve the Platform and existing functionality and in that context release new versions of the Platform. Maintenance includes Planned Maintenance and Emergency Maintenance.|
|Support||Support provided by ByTomorrow for Faults, for functional and/or technical questions, questions about the technical Availability and essential functions of the Platform, and sales requests related to the Platform. Other requests and questions, such as questions related to the use of the Platform, requests for changes and/or new functionalities, are not covered by this SLA and will be charged to the Customer on a time and materials basis.|
|Planned Maintenance||Maintenance to the Platform that is communicated by ByTomorrow to the Customer prior to its execution.|
|Critical Fault||Has the meaning given in Article 26.7.|
|Report||Report of a Fault or a Support Request by the Customer to ByTomorrow.|
|Response||Confirmation from ByTomorrow to the Customer that the Report has been received.|
|Response Time||The time between the moment ByTomorrow receives the Report from the Customer and the moment ByTomorrow sends a Response back.|
|Service Window||The Business Hours from Monday to Friday, excluding nationally recognized holidays in the Netherlands.|
|Emergency Maintenance||Maintenance to the Platform that, in the sole discretion of ByTomorrow, is necessary in the short term and cannot be communicated to the Customer as Planned Maintenance.|
|Storing||The Platform or a part thereof is not Available or does not function in a manner as agreed between the Parties in writing. A Storing as referred to in this SLA only exists if the cause of the disruption can be attributed to ByTomorrow. In this SLA a distinction is made between a Critical Storing and a Non-Critical Storing.|
|Werkuren||From 9:00 am to 5:00 pm (Dutch time).|
Article 24. Availability
24.1. ByTomorrow strives to achieve an availability percentage of 97% per calendar month. The Availability is calculated by ByTomorrow on a monthly basis (per calendar month) after the fact. If the Agreement lasts less than one month, the Availability will be calculated afterwards over the duration of the Agreement. The Availability is calculated based on 24 hours a day, including all days in the relevant calendar month. For the calculation of the Availability, Maintenance as well as Downtime as a result of one of the situations as described in Article 27.2 will be excluded.
The formula is expressed as follows:
|Availability %=||Total hours in calendar month - Maintenance - Total hours of Downtime ex Article 27.2||* 100|
|Total hours in calendar month|
24.2. Upon request by Customer, ByTomorrow will send a report showing the Availability for the past measuring period.
24.3. ByTomorrow will use its best efforts to achieve the Availability percentage as referred to in clause 1, but cannot guarantee this. In the event that the Availability percentage is not achieved, Customer expressly has no right to credit for fees due under the Agreement, damages, and/or termination of the Agreement.
Article 25. Maintenance
25.1. ByTomorrow may perform Maintenance on the Platform at any time without prior consent of Customer. Maintenance may include corrective maintenance (bug fixes and improving quality/performance), preventive maintenance (testing and updating based on new operating systems or browsers), adaptive maintenance, perfective maintenance (improving performance or other quality characteristics), maintenance on functionalities, as well as releasing new versions of the Platform.
25.2. The development of new features and/or modification of the Platform at the request of Customer is not covered by the Maintenance covered by this SLA and involves services that will be provided on a time and materials basis at ByTomorrow's regular rates. ByTomorrow is not obliged to honor such a request by Customer. If ByTomorrow does honor such a request, the results of the development will not be used solely for Customer, unless expressly agreed otherwise in writing by the Parties.
25.3. ByTomorrow will plan Maintenance whenever possible. ByTomorrow will notify Customer prior to performing planned Maintenance. It will make every effort to notify Customer of Planned Maintenance at least two weeks prior to its commencement. The notification will, where possible, include the start time of the Maintenance and the expected duration of the Platform's unavailability, if any.
25.4. In case of acute problems with the Platform, Emergency Maintenance may be necessary. If possible, Emergency Maintenance will be communicated to Customer as soon as possible. If this is not reasonably possible, Emergency Maintenance will be carried out without notifying Customer.
Article 26. Malfunctions and Support Requests
26.1. Reporting Incidents and Support Requests
If the Customer believes there is an Incident or wishes to make a Support Request, they shall report it to ByTomorrow during the Service Window. Only the registered contact person of the Customer with ByTomorrow may report an Incident. This report may be made by email or WhatsApp Business using the contact information provided by ByTomorrow to the Customer (only during the Service Window).
26.2. When making a report, the Customer shall provide the following information to ByTomorrow:
- name of the Customer's company;
- name of the contact person responsible for the report on behalf of the Customer;
- contact details (telephone number, mobile phone number and email address) of that contact person;
- detailed and accurate description of the problem (in case of an Incident) - including, but not limited to, information about the operating system, the device, the steps leading to the problem, screenshots, etc. - or question (in case of a Support Request);
- description of the steps already taken by the Customer.
26.3. The Customer shall provide its report with all relevant information possible to enable ByTomorrow to estimate the classification of the report in accordance with Article 26.7 and to process the report as efficiently as possible. Incomplete or incorrect information may result in failure to meet the Response and Resolution Times as referred to in this SLA, or inability to find a satisfactory solution to the report. In such case, ByTomorrow cannot be held liable.
26.4. If the report meets the conditions of this SLA, ByTomorrow will process the report.
26.5. The Customer shall at its own expense provide all necessary cooperation to ByTomorrow in resolving the Incident and/or processing the Support Request. If necessary, the Customer shall take action and make available the necessary and capable (contact) persons who may be consulted by ByTomorrow if necessary to address Incidents and Support Requests adequately - and in accordance with the agreed service levels in this SLA.
26.6. The Customer shall respond immediately to requests from ByTomorrow for instructions, information, approvals, or decisions that ByTomorrow needs to handle the report within the Response and Resolution Times and resolve the Incident.
26.7. Priority Level of Incidents
The report of a malfunction will be classified by ByTomorrow based on the criteria included in the following table. Only ByTomorrow decides which classification will be assigned to the malfunction.
|Critical Incident||An incident that reveals certain functionalities of the Platform are not functioning to the extent that the Customer, Users, and/or Viewers cannot use them and/or cannot continue their work, and it is plausible that the cause of this is not due to errors in the user configuration.|
|Non-critical Incident||An incident (disruption or otherwise) of the Platform that is annoying but not blocking for the Customer, Users, and/or Viewers. The Customer, Users, and/or Viewers can use the Platform in principle.|
26.8. Response and Resolution Times for Incidents and Support Requests
ByTomorrow endeavors to take in the Customer's Report within the Response Time agreed upon between the Parties - as mentioned in the table below - and to confirm receipt to the Customer by sending a Response. As part of the Response, ByTomorrow will - if applicable and if possible at that time - classify the Incident as Critical or Non-critical. In addition, if possible at that time, it will provide the expected Resolution Time to the Customer.
|Priority Level / Support||Response Time (after Notification)||Resolution Time (after Response)|
|Critical Incident||16 Business Hours (calculated within Service Window)||8 Business Hours (calculated within Service Window)|
|Critical Incident related to the Service for live streams of Recordings by Customer via the Platform||During Service Window: 2 Business Hours (calculated within Service Window), or; Outside Service Window: 3 hours (calculated between 09:00 and 18:00 Dutch time)||8 Business Hours (calculated within Service Window)|
|Non-critical Incident||16 Business Hours (calculated within Service Window)||80 Business Hours (calculated within Service Window)|
|Support||16 Business Hours (calculated within Service Window)||Within reasonable time, depending on the nature of the Support request. Effort-based.|
26.9. Response and Completion times are measured in hours within the designated Service Window. Hours that fall outside the Service Window do not count towards calculating the Response and Completion time. For notifications made outside the Service Window, the Response time and/or expected Completion time will be calculated from the beginning of the next Service Window. However, ByTomorrow may decide to process notifications outside the Service Window immediately, i.e. before the next Service Window begins.
26.10. The Response and Completion times are indicative and no rights can be derived by Customer.
26.11. For the resolution of Failures and/or the handling of Support requests, ByTomorrow may be dependent on its suppliers. Therefore, the failure of ByTomorrow to meet the Completion times due to these dependencies cannot be attributed to ByTomorrow.
26.12. The Response and Completion time is measured and recorded solely by ByTomorrow. ByTomorrow's (hour) administration is leading for determining whether the Response and/or Completion times have been met by ByTomorrow or not.
26.13. If there is force majeure - as referred to in Article 18 of these Terms and Conditions - on the part of ByTomorrow, the Response time and/or expected Completion time will be suspended for the duration of the force majeure.
26.14. Response to the Notification will be provided by ByTomorrow by e-mail and/or via WhatsApp Business and addressed to the (registered with ByTomorrow) contact person of Customer who made the Notification. If there is reason for ByTomorrow to do so, its Response may also be provided by telephone to the aforementioned contact person.
26.15. If ByTomorrow is dependent on input from Customer to meet the Response time and/or expected Completion time, the Response time and/or expected Completion time will be extended accordingly until the moment when the input has been fully provided by Customer. This also includes - but is not limited to - the situation where the Notification from Customer does not comply with the provisions of Article 26.1 through 26.6. In situations as described in this Article, Customer cannot attribute the failure to meet the Response time and/or expected Completion time to ByTomorrow.
26.16. (Repeated) exceeding of the Response time and/or expected Completion time by ByTomorrow will be discussed by the Parties once a year in a meeting. The Parties have not agreed on any consequences for this exceeding and, without any conflicting written agreements, Customer is not entitled to any credit for due fees under the Agreement and/or compensation. The Parties also agree that - without any conflicting written agreements - exceeding of the Response time and/or expected Completion time by ByTomorrow will not constitute a ground for termination of the Agreement.
26.17. Oplossingsrichtingen Storingen
Na ontvangst van de Melding terzake een Storing en nadat ByTomorrow heeft beoordeeld dat er daadwerkelijk sprake is van een Storing, zal ByTomorrow zich er voor inspannen om Klant zo snel mogelijk - indien beschikbaar - de meest voor de hand liggende oplossingsrichting mede te delen. Uitsluitend ByTomorrow bepaalt welke oplossingsrichting gekozen wordt.
26.18. The solution of an incident (as well as the turnaround time involved) will always be based on a best efforts obligation. Any expected deadlines for the solution of an incident, whether or not deviating from the turnaround times, are always an estimate and no rights can be derived from them by the Customer. In no event will the resolution of incidents be subject to a fatal deadline.
26.19. If ByTomorrow detects incidents on its own initiative, it will also make every effort to resolve them quickly.
Article 27. Final provisions
27.1. Unless ByTomorrow has expressly promised a certain result or given a guarantee, it provides all its services under this SLA on the basis of a best efforts obligation. Unless otherwise indicated in writing, the deadlines and (response and turnaround) times provided by ByTomorrow always represent a best effort. They cannot be regarded as a fatal deadline.
27.2. The service levels and obligations agreed upon in this SLA do not apply if incidents occur or the agreed-upon service levels are not met due to:
- acts or omissions by the Customer in violation of its obligations;
- configuration errors of the Customer;
- acts or omissions by a third party that should be borne by the Customer;
- force majeure;
- incidents arising from deficiencies of components or links with or originating from third parties;
- incidents related to the availability of internet connections, hosting and/or content delivery networks (CDNs);
- causes arising from the services of third parties.
27.3. Unless otherwise agreed in writing, ByTomorrow is not obliged to provide (user) training regarding the content and operation of the Platform.
27.4. All intellectual property rights arising from or related to the modifications or additions to the Platform, whether or not resulting from a Report, shall remain with ByTomorrow at all times.
27.5. In case ByTomorrow fails to meet the service levels described in this SLA or otherwise fails to comply with the obligations in this SLA, the Client shall have no other rights (including the right to credit fees due under the Agreement, the right to compensation, and the right to terminate the Agreement), other than those described in this SLA.