1. Introduction
1.
The present general terms and conditions of sale (hereinafter referred to as the “General Terms and Conditions”) apply to the relationship between Tunify SA with registered office at 3583 Paal (Beringen), De Weven 14 bus 2 and company number 0501662719 (hereinafter referred to as “Tunify”), on the one hand, and Yourself, on the other hand, as a customer of Tunify (hereinafter referred to as the “Customer”). Tunify and the Customer are hereinafter jointly referred to as the “Parties“.
2.
The General Terms and Conditions apply to the contractual relationship (hereinafter the “Agreement”) between the Parties in the form of a purchase by the Customer following an order made by the Customer via the website and the application developed, operated and maintained by Tunify, available at www.tunify.be, www.tunify.com, or on any other website or application through which the Service is offered (hereinafter referred to as the “Website“) a subscription to the use of a Tunify service provided by means of the “Tunify” platform (hereinafter referred to as the “Platform“), whereby Tunify offers this service (hereinafter referred to as the “Service”) by, among other things, giving the Customer access to a digital database of music (files). The Platform is an online streaming music system that ensures that the Customer can at any time play in his establishment the music that has the characteristics desired by the Customer. The Platform and the Service are hereinafter jointly referred to as the “Product”.
3.
The General Terms and Conditions also apply by extension to any use that the Customer may make of the Website, whether or not the Customer proceeds to purchase the Products.
4.
By placing an order, but also by simply visiting the Website, the Customer declares to have read with certainty the General Terms and Conditions and to accept them without reservation and in all their provisions, except for any other general terms and conditions of sale or purchase that might apply to the (contractual) relationship between the Parties.
2. Use of the Product
1.
The Customer can purchase the Service and use the Product exclusively for his own professional use, only with a view to allowing the public to listen as background music in places open to the public operated by the Customer, such as a hotel and catering establishment, shop, department store, cinema, business premises, etc. (excluding dance halls) and only at the location indicated by the Customer at the time the Agreement was concluded. Under penalty of damages and Tunify’s right to immediately terminate or suspend the Agreement, any use of the Service or the Product for private purposes, outside the aforementioned location or other purposes, is expressly excluded from the Agreement. Tunify has the right to use all technical means to verify that the Customer complies with these restrictions.
The Customer may not communicate the Product (including the digital music (files) to which access is granted) to the public without obtaining the additional and prior consent of third parties owning the right to such disclosure, of the authors, producers and performing artists, if necessary in a group of interest groups or management organizations (hereinafter referred to as the “Interested Third Parties”).
2.
The Customer shall indemnify and hold Tunify harmless from any use of (part of) the Product that violates the provisions of this article.
3. Rights
1.
The Customer accepts that all elements and functions of the Website may evolve and that Tunify has the right, at its own discretion, to remove, modify or add any elements and functions or any other content to the Website, at any time and without any participation or notification to the Customer.
Tunify reserves the right to modify, suspend or terminate the Product (or part or content thereof) at any time, without the Customer being entitled to any compensation for this reason. Tunify undertakes to inform the Customer in advance of any modification, suspension or discontinuation of the Product, if appropriate.
2.
The Customer undertakes to respect the rights of Tunify or third parties with regard to all parts, data and information relating to the Website or the Product.
Except with Tunify’s express prior and written consent, the Customer is not entitled to modify, copy, rent (out) sell, distribute, (re)produce the elements or functions of the Website in any other way or using any techniques, and in general to use them in a manner other than in the spirit of the Agreement.
The Customer undertakes to use the Product or any part thereof only in accordance with the Agreement. The Customer undertakes not to analyse, reverse engineer, modify, rent, copy, reproduce, lease, lend, sell, transfer, distribute or make available to third parties the Product or any part of it, including the music (files), in any way whatsoever, to create derivative works from the Product, to exploit the Product in any way without permission, including but not limited to, exploitation by illegal access or overloading of the network capacity.
3.
All components of the Website and the Product, including the visual elements, the sound elements, the technology and source codes used, the information, logos, icons, digital downloads, calculations, plans, software, images, brands, models, slogans, graphic charters, advertisements, images, user interfaces, audio and video files, editorial content, scripts and software, contained on the Website or in the Product, are the exclusive property of Tunify or entitled third parties. They are protected by copyrights, trademarks or patents or, more generally, by intellectual and/or industrial property rights. In this respect, Tunify expressly refers to, among other things, the applicable legal and regulatory provisions concerning the protection of data and computer programs, including the Law of 31 August 1998 on the protection of databases and the Law of 30 June 1994 on the legal protection of computer programs.
The same applies to Tunify trademarks, service marks, images and logos used on the Website or in the Product, which are trademarks or registered trademarks of Tunify or of third parties in Belgium and/or other countries.
Except for a non-exclusive, non-transferable and limited right of use of the Platform and presentation of the music files exclusively within the framework, for the duration of and under the terms of the Agreement, nothing in the General Terms and Conditions or the Agreement has the purpose or effect of granting the Customer, implicitly or explicitly, any right of ownership, or a right or licence to an intellectual or industrial property right belonging to Tunify or to third parties or to the creation of a patent, a copy right, a trademark or a protected secret relating to the intellectual or industrial property rights owned by Tunify or third parties and, in general, to any part of the Website or the Product.
4.
The Customer is liable to Tunify and will indemnify Tunify against any damage that Tunify or third parties may suffer as a result of any wrongful act on the part of Tunify, with regard to the protected data, elements, etc. referred to in the present article.
4. The offer – product information
1.
The Customer is free to consult the Website and make use of it to take note of the Products offered, without any obligation to purchase.
2.
In order to allow the Customer to place an order in a considered manner, Tunify’s offers always contain, to the best of its ability, within the limits of technological possibilities and in accordance with the best current market standards, the most complete and accurate information relating to the essential characteristics of the Products.
3.
Tunify is not liable to a Customer, nor liable for any compensation on account of obvious errors in the provided product information .
5. Price of the subscription
Tunify’s prices as indicated on the Website are expressed in euros, excluding VAT and including the mechanical reproduction rights paid by Tunify to the Interested Third Parties. The payment of the performance rights is at the expense of the Customer.
Except for orders already placed, Tunify reserves the right to adjust the prices as it sees fit. The Customer agrees to this.
Tunify will be able to adjust the prices unilaterally in accordance with any changes in the level of reproduction rights, which may occur at the decision of the Interested Third Parties.
If, during the period for which the Product was purchased, Customer decides to discontinue use of the Product, Customer shall not be entitled to any refund of the price or compensation.
6. Order – order confirmation – invoicing
1.
Before being able to complete the ordering process, the Customer must reconfirm to fully agree to these General Terms and Conditions.
2.
The Agreement is only concluded after payment by the Customer of the price due to Tunify and receipt of this price by Tunify. Tunify reserves the right to suspend its services in order to verify the actual execution of the payment.
Tunify accepts the following (online) payment methods: credit card (e.g. Visa or Master Card), iDEAL, BCMC, bank transfer (including direct debit). For each payment, the Customer will receive an invoice by e-mail from Tunify.
When paying by credit card, the Customer grants Tunify the right to check whether the credit card has been sufficiently supplied. If this is not the case, Tunify reserves the right to refuse delivery, provided that it informs the Customer of this refusal and the reason for it.
In order to ensure the security of the transaction, online payments are always made using the “Ogone” payment system. For all payments made in a secure environment, the Customer will be able to find the Ogone payment symbol. It is possible that the Ogone sign or the term “Ogone” will also appear on the Customer’s bank account statements.
3.
Confirmation by Tunify of receipt of the order by the Customer is made subject to Tunify’s right to refuse the execution of the order at its own discretion or to make the creation of the Agreement subject to additional conditions, in particular in the case where Tunify finds that previous orders by the same Customer have remained unpaid on the due date of the invoices relating thereto. The Customer will be informed of this by email. The Customer expressly accepts this reservation.
7. Account
In order to use the Service, the Customer must register and create an account (hereinafter an “Account”). The Customer undertakes not to disclose his Account-information to anyone else and only to use it within the framework of the Agreement. The Customer is solely responsible for maintaining the confidentiality and security of his Account and for all activities that take place on or through his Account. The Customer agrees to inform Tunify immediately of any breach of the confidentiality or security of his Account. Tunify is not responsible for any damage resulting from unauthorized use of the Account by the Customer.
When registering or using the Service, the Customer must provide Tunify with correct and complete information and undertakes to update his registration details in order to keep them correct and complete. The Customer agrees that Tunify has the right to store and use the registration data provided by the Customer to maintain the Service and invoicing.
8. Delivery
The Product is only offered online.
After confirmation of payment and once payment of the price has been received (and verified) by Tunify, the Customer will receive a login and password to access the Product.
9. Security of the Product and of the Website
Within the framework of the Agreement, the Customer shall only be granted a right of use on the Product
The Customer is aware that the Product and the Website are protected by technical applications introduced by Tunify and/or third parties in order to protect the Product and the Website in all their aspects and to limit the Customer’s use of the Product to the use that complies with the Agreement.
In the event of a breach or attempted breach by the Customer of any security of the Product or of the Website, the Customer shall be liable to Tunify for all damages, costs and losses resulting from the (attempted) breach of security, including claims by third parties. The Customer owes Tunify a compensation of EUR 5,000.00 for each (attempted) breach of security, which is payable on demand and cannot be mitigated, without prejudice to Tunify’s right to terminate the Agreement with immediate effect and/or to deny the Customer’s right of access to the Website and/or to claim the damage actually suffered, and without prejudice to Tunify’s right to inform the competent authorities or third parties of the facts.
10. Warranty with respect to the Products
Tunify guarantees that the delivered Products comply with the Agreement, the specifications mentioned in the offer, the reasonable requirements of reliability and/or usability and the legal and regulatory provisions in force on the date on which the Agreement was concluded.
Subject to the provisions of the General Terms and Conditions, the Customer benefits from the legal warranty for the defects in conformity with the delivery of the Products as well as for hidden defects.
11. Limitation of liability
1.
Tunify only has a best efforts obligation with regard to access to the Website, the ordering process, the delivery or the Products. Tunify does not guarantee the proper, uninterrupted or error-free operation of the Website or the Product, nor does it guarantee that this operation will be free of damage, corruption, attacks, viruses or manipulations. The Customer is aware of the need to have an appropriate IT infrastructure and to create backups in order to guarantee the operation of his IT infrastructure.
2.
The information on the Website is of a general nature. The information is not adapted to personal or specific circumstances, and can therefore not be considered as personal, professional or legal advice to the user.
Tunify makes every effort to ensure that the information made available is complete, correct, accurate and up-to-date. Despite these efforts, inaccuracies may occur in the information provided. If the information provided contains inaccuracies or if certain information on or via the Website is (un)available, Tunify will make every effort to rectify this as soon as possible. If you discover any inaccuracies in the information made available through the Website, you can contact the site administrator.
3.
The Website (or possibly the Product) may contain hyperlinks to websites or pages of third parties, or refer to them indirectly. The placing of links to these websites or pages in no way implies an implicit approval of their content. Tunify expressly declares that it has no control over the content or other characteristics of these websites and can in no way be held responsible for their content or characteristics.
4.
Tunify is not responsible for the quality of the Customer’s infrastructure, nor for the bandwidth and/or download and upload capacity. The minimum technical specifications required for each Product offered are set out by the Customer in the information sheet accompanying the Product and form an integral part of these terms and conditions.
5.
Tunify, in consultation with the Interested Third Parties, will determine at all times which musical works will be made available via the Product. Tunify is never obliged to comply with the Customer’s wishes with regard to the music (files) offered and has the exclusive right to exclude any claim by the Customer to modify the scope of the Service.
Any liability on the part of Tunify with regard to the composition or modification of the music repertoire offered is expressly excluded.
If the Customer wishes to add music himself, the actual addition will depend on Tunify’s permission. In this case, however, the Customer will always have to prove that the music was lawfully obtained and that he has the necessary permissions from third parties to use the music via the Platform and the Product, if any. The Customer will always indemnify Tunify against any claims from third parties in this respect.
6.
Subject to mandatory legal provisions concerning product liability, the applicability of which cannot be contractually excluded, Tunify is in no way liable towards the Customer for direct or indirect or specific damage such as purely financial damage, loss of profit, loss of opportunity, etc. which arises as a result of malfunctioning, temporary unavailability or unavailability of the Product or the Website or for any damage, including, without limitation, all losses, work interruptions, damage to programs or other data on the computer system, of equipment, software or other belonging to the user which would result from the access to or the use of the Product or the use of the (information included in the) Website, in particular as a result of links or hyperlinks.
7.
If Tunify’s liability is withheld as a result of a shortcoming attributable to it, this liability shall in any case be limited to covering direct damage up to a maximum amount equal to the total amount (excluding VAT) paid by the Customer to Tunify in connection with the Agreement. In addition, the limitations of liability that apply in the relationship between Tunify and its suppliers are binding on the Customer and therefore apply in the relationship between Tunify and the Customer.
8.
The Customer is obliged to compensate Tunify for all damage of whatever nature and to indemnify Tunify against all claims from third parties, when these claims are the result of an unlawful or improper use by the Customer of the Product or of the Website, or of any violation of the Agreement by the Customer.
12. Force majeure
Tunify may not be held liable for a total or partial breach of its contractual obligations if and to the extent that the breach is due to force majeure or an event assimilated to force majeure.
Events equivalent to force majeure include computer viruses, system breakdowns and technical breakdowns and defects in the computer infrastructure that would occur at Tunify, the intrusion of unauthorized persons, a total or partial interruption of the means of communication, natural disasters, fire, and any other event that should be qualified as force majeure in accordance with law.
In the event that Tunify becomes aware of force majeure or of an event assimilated to force majeure which would render the execution of the Agreement impossible, Tunify undertakes to inform the Customer accordingly.
In the event that the situation of force majeure continues for more than 30 days, Tunify will be entitled to unilaterally terminate the Agreement in writing, subject, where appropriate, to the obligation to repay to the Customer the part of the purchase price already paid by the Customer for the undelivered Service, without the Customer being entitled to any additional compensation whatsoever.
13. Unilateral termination of the Agreement by Tunify
If the Customer does not comply with the provisions of the Agreement, including the General Terms and Conditions, or if Tunify has good reason to believe that the Customer does not comply with them, Tunify has the right, at its sole discretion and without prior notice, to terminate or suspend this Agreement (and to block the Customer’s login and password), without prejudice to the right to compensation for the damage caused by the Customer.
14. Adjustments and additions
Tunify reserves the right to amend the Agreement and the General Terms and Conditions at any time and to lay down new or additional conditions relating to the Customer’s use of the Product. Such modifications and additional terms and conditions shall be communicated to the Customer and, if they are not protested by the Customer in short term, shall immediately take effect as part of the Agreement. If the Customer does not accept such modifications or additions, Tunify will have the right to terminate the Agreement unilaterally, subject to the obligation to reimburse the Customer for that part of the purchase price already paid by the Customer for the undelivered Service, if the modification or addition constitutes a major change to its contractual rights or obligations that is detrimental to the Customer. The Customer shall under no circumstances be able to assert any right to any additional compensation whatsoever.
15. Validity
If one or more provisions of the General Terms and Conditions should be void or invalid on the basis of any legal or administrative provision or should be declared void or invalid as a result of a ruling by a competent court, the remaining provisions shall remain in full force.
16. Complete Agreement
The General Terms and Conditions, the Customer’s order and any additional written agreements between the parties constitute the Agreement governing all contractual relations between Tunify and the Customer. In case of inconsistency between the order summary and/or the General Terms and Conditions and/or the additional written agreements, the possible additional written agreements take precedence. The General Terms and Conditions always take precedence over the order summary.
17. Language of the Agreement
The Agreement may be concluded in any of the languages in which the products are offered on the Website. The language used by the Customer when placing the order, in particular the language of the accepted General Terms and Conditions, is presumed to be the language of the Agreement.
18. Applicable law and competent court
The Agreement, including inter alia the General Terms and Conditions, is governed by Belgian law with regard to its validity, interpretation and execution.
Only the courts of the judicial district of Hasselt (Belgium) are competent for all disputes concerning the validity, the interpretation or the execution of the Agreement.