Terms and conditions
Floatium General Terms and Conditions
The private company Floatium B.V. (hereinafter: Floatium) is registered with the Dutch Chamber of Commerce under number 82638438 and has its registered office at Azaleastraat 25C (3051TC) in Rotterdam.
Article 1 - Definitions
In these general terms and conditions, the terms below are used in the following sense, unless explicitly stated otherwise.
Proposition: any proposal or quotation to the Customer for the provision of Services by Floatium.
Company: the natural or legal entity acting in the exercise of a profession or business.
Consumer: the natural person who is not acting in the exercise of a profession or business.
Loan: the Products that Floatium gives to the Customer on Loan.
Services: Floatium provides hotspots and supplies to Consumers and Companies. The Customer must place these so-called hotspots in order to create a network of radio waves. Partners can subsequently use this network for their data traffic. The proceeds will be divided among the Customers and Floatium.
Customer: the Consumer or Company that takes Products on Loan from Floatium.
Space: the place where the Customer places the Products.
Partner: a network is established for the benefit of the Partner.
Products: hotspots and the corresponding supplies required.
Agreement: any Agreement and all other obligations between the Customer and Floatium, as well as proposals by Floatium for Services that are provided by Floatium to the Customer and that are accepted by the Customer and executed by Floatium, with which these general terms and conditions form an indissoluble whole.
Article 2 - Applicability
These general terms and conditions are applicable to each Proposition from Floatium, to each Agreement between Floatium and the Customer and to each Service that is provided by Floatium.
Before an Agreement is concluded, the Customer will be provided with these general terms and conditions. If this is not reasonably possible, Floatium will indicate to the Customer in what way the Customer can view the general terms and conditions.
Deviation from these general terms and conditions is possible in exceptional situations, provided this has been explicitly agreed with Floatium in writing.
These general terms and conditions also apply to the Customer's additional, amended and follow-up orders.
The Customer's general terms and conditions are excluded.
If one or more provisions of these general terms and conditions are null or annulled in part or in whole, the other provisions of these general terms and conditions remain in force and the null/annulled provision(s) will be replaced by a provision having the same purport as the original provision.
Uncertainties about the content, explanation or situations not provided for in these general terms and conditions should be assessed and explained in accordance with the spirit of these general terms and conditions.
The applicability of Sections 7:404 and 7:407(2) of the Dutch Civil Code is explicitly excluded.
If reference is made to she/her in these general terms and conditions, this should also be understood to refer to he/his/they/their, if and insofar as applicable.
In the event that Floatium has not continued to require compliance with these general terms and conditions, it retains the right to demand compliance with these general terms and conditions in whole or in part.
Article 3 - The Proposition
All Propositions made by Floatium are without obligation, unless explicitly indicated otherwise in writing. If the Proposition is valid subject to restrictions or specific conditions, this will be explicitly stated in the Proposition.
Floatium is only bound to a Proposition if it is confirmed in writing by the Customer within 30 days. Nevertheless, Floatium has the right to refuse an Agreement with a Customer or potential Customer for a reason that is legitimate for Floatium.
The Proposition contains a description of the Services provided. The description is sufficiently detailed to enable the Customer to make a proper assessment of the Proposition. Any information in the Proposition is only an indication and cannot be grounds for any compensation or the termination of the Agreement.
Special offers or quotations do not automatically apply to subsequent orders.
Delivery times stated in the Proposition made by Floatium are in principle indicative and if exceeded do not give the Customer the right to termination of the Agreement or to claim damages, unless expressly agreed otherwise.
Article 4 - Conclusion of the Agreement
The Agreement is concluded at the moment that the Customer has accepted a Proposition from or Agreement with Floatium by explicitly and unambiguously agreeing with the Proposition by ticking the 'Agree' box in the Floatium application.
Floatium has the right to revoke the confirmed Agreement within 5 working days after receipt of the acceptance.
Floatium is not bound to a Proposition if the Customer could reasonably have expected or should have understood that the Proposition contains an obvious mistake or an error in writing. The Customer cannot derive any rights from this mistake or error in writing.
If the Customer cancels an order that has already been confirmed, the actual costs already incurred (including time spent) may be charged to the Customer.
Any Agreement concluded with Floatium or a project awarded to Floatium by the Customer rests with the company, and not with an individual person associated with Floatium.
If the Agreement is entered into by several Customers, each individual Customer will be jointly and severally liable for the fulfilment of all obligations arising from the Agreement.
Article 5 - Duration of the Agreement
The Agreement for the provision of Services is entered into for an indefinite period.
The parties may terminate the Agreement prematurely, subject to a notice period.
Floatium has the right to terminate the Agreement if Floatium has reasonable grounds to do so, for example if the benefits no longer weigh up against the costs.
Both the Customer and Floatium can terminate the Agreement on the basis of an attributable shortcoming in fulfilling the Agreement if the other party has been given written notice of default and a reasonable period has been set for it to fulfil its obligations, and it has still failed to fulfil its obligations correctly.
If Floatium installs the antenna for the Customer outdoors and the investment of Floatium is therefore higher, the minimum duration of the Agreement is two years. In the event of termination within this period, costs of € 1,500 will be charged.
Both the Customer and Floatium can terminate the Agreement in whole or in part without further notice in writing and with immediate effect if one of the parties has been granted suspension of payments, has filed for bankruptcy or if the company in question is being wound up. In the event that a situation as described above occurs, Floatium is never obliged to refund monies already received and/or provide compensation for damages.
Article 6 - Execution of the service provision
Floatium will endeavour to execute the agreed Services with the utmost care, as may be expected of a good service provider. Floatium is committed to providing professional and independent service. All Services are carried out on the basis of an obligation to perform to the best of one's ability, unless a result has been explicitly agreed upon in writing and described in detail.
The Agreement on the basis of which Floatium executes the Services determines the scope and extent of the Services. The Agreement will only be executed for the benefit of the Customer. Third parties cannot derive any rights from the content of the Services executed in connection with the Agreement.
If the nature and duration of the order so require, Floatium will keep the Customer informed of progress in the manner agreed.
The execution of the Services is based on factors that are external to Floatium. If the information needs to be changed, this may have an impact on the possible results to be achieved. Floatium is never liable for adjusting or not achieving the results or prognosis. If the start, progress or delivery of the Services is delayed because of, for instance, insufficient cooperation by the Customer or other circumstances, the consequences will be at the expense and risk of the Customer.
Article 7 - Obligations of the Customer
The Customer is obliged to make use of the Products made available with due care. The Customer may only use the Products for the purposes for which they have been made available to the Customer.
The Products given on Loan will not be provided for use to third parties by the Customer.
The Customer is obliged to cooperate with respect to the Services provided by Floatium in order to keep the applications on the Products, including but not limited to the operating system, up-to-date, remotely or otherwise. Damage as a result of not keeping the applications up-to-date will be considered intentional or deliberate recklessness by the Customer.
If the Customer does not deliver on time and/or delivers an incomplete Product, Floatium has the right to charge the Customer for the costs or extra costs caused by this.
Shipment of the Product to the Customer will take place at Floatium's expense and risk, unless this cannot reasonably be expected of Floatium, in which case the Parties must come to alternative agreements.
Article 8 - Damage to/by the Product
The Customer is obliged to report theft and/or loss of the Products to Floatium immediately after discovery of the loss or theft.
In the event of damage/theft of the Product, the Customer will, if possible, have the police draw up a report and arrange for statements (for instance by witnesses) to be made.
The consequences of damage caused by improper use of the Product or as a result of negligence or inexpert use will be borne by the Customer.
The Customer is also obliged to notify Floatium without delay if a virus, trojan or other malware is discovered on a Product that Floatium has made available to the Customer or that was loaned to the Customer as part of carrying out their function.
Article 9 - Placing Product in Space
The Customer will place the Product supplied by Floatium in the agreed manner in the Space.
The Customer will exercise due care when placing the Product. In the event of any errors/defects and/or unsuitability of the Product, the Customer will inform Floatium immediately by e-mail or by telephone.
Floatium is not responsible for the success or otherwise of the placement of the Product by the Customer in the Space, nor for the actual range of the Product. Floatium recommends placing the Product on the windowsill, at any rate as high as possible in the house/building in question.
The Customer is aware that the reach of the Product depends on the location of the Space. If no other Customers are located near the location in question, this does not improve the reach of the Product.
Floatium can never guarantee how much revenue the acquisition and placement of the Product will generate for the Customer.
If the Customer has been given actual possession of the Product, but the Customer does not use the Product in accordance with the purpose for which the Product was given to the Customer on Loan, the Customer must return the Product to Floatium immediately.
The costs of returning the Product will be borne by Floatium, unless the Parties have agreed otherwise.
Floatium will take care of the disassembly of the Product.
All Products remain the property of Floatium at all times. Consequently, the Customer can never make a claim on the Product.
Article 10 - Prices and payment
All prices are in principle exclusive of value-added tax (VAT), unless agreed otherwise.
The Customer is aware that Floatium will not be responsible for the payment of private taxes. The Customer is emphatically responsible for this themself and cannot hold Floatium responsible or liable in any way.
Floatium will carry out its service provision in accordance with the agreed rates. In principle, the earnings from the placement of the Product will be divided 50/50 between the Customer and Floatium, unless agreed otherwise. This 50/50 split is calculated over the monies that have been deposited into Floatium's account with regard to the placement of the Product with the Customer.
The parent company (see Article 1.6) will distribute monies consisting of the revenues arising from the creation and use of the network. The proceeds will be divided equally between the Customer and Floatium, unless such a division cannot reasonably be expected of Floatium. The payments to the Customer will be made periodically.
The Customer is required to fully reimburse the costs of third parties deployed by Floatium after approval is given by the Customer, unless expressly agreed otherwise.
The parties may agree that the Customer is to pay an advance. If an advance payment has been agreed, the Customer must pay the advance before a start is made with executing the Services.
The Customer cannot derive any rights or expectations from an estimate issued in advance, unless the parties have expressly agreed otherwise.
Floatium has the right to increase the applicable prices and fees annually in accordance with the current inflation rates. Other price changes effected during the Agreement are only possible if and insofar as they have been explicitly set out in the Agreement.
If the Customer has to pay costs, the Customer must pay these costs at once, without any offsetting or deferral, and within the specified payment term of 30 days as stated on the invoice, to Floatium's bank account.
In the event of liquidation, insolvency, bankruptcy, involuntary liquidation or application for payment against the Customer, the payment and all other obligations of the Customer under the Agreement will become immediately due and payable.
If the Customer does not use the Product (as intended), Floatium can reclaim the Product. If the Customer does not respond to the first request for reclaim, Floatium will set the Customer a second deadline of no more than 14 days within which the Customer must comply with Floatium's requests. If the Customer does not cooperate after a second request, Floatium will recover the costs it incurred as a result from the Customer.
Article 11 - Privacy, data processing and security
Floatium will treat the Customer's personal data with care and will only use it in accordance with the applicable standards. If requested, Floatium will inform the person involved about this.
The Customer is themself responsible for the processing of data that is processed when using a Floatium service. The Customer also guarantees that the content of the data is not unlawful and does not infringe any rights of third parties. In this respect, the Customer indemnifies Floatium against any claim (legal or otherwise) related to the data or the execution of the Agreement.
If Floatium is required under the Agreement to provide protection for information, this security will meet the agreed specifications and a security level that, given the state of the technology, the sensitivity of the data, and the costs involved, is not unreasonable.
Article 12 - Suspension and termination
Floatium has the right to withhold the data, data files and more that it has received or realised if the Customer has not yet fulfilled their payment obligations in full. This right remains unaffected if a reason that is well-founded for Floatium arises that justifies suspension in that case.
Floatium has the right to suspend the fulfilment of its obligations as soon as the Customer is in default with regard to the fulfilment of any obligation resulting from the Agreement, including late payment of its invoices. The suspension will be confirmed immediately to the Customer in writing.
In that case, Floatium is not liable for any damage, for whatever reason, as a result of the suspension of its activities.
The suspension (and/or termination) does not affect the Customer's payment obligations for work already performed. Furthermore, the Customer is obliged to compensate Floatium for any financial loss that Floatium suffers as a result of the Customer's default.
Article 13 - Force majeure
Floatium is not liable if it cannot fulfil its obligations under the Agreement due to force majeure.
Force majeure on the part of Floatium includes, but is not limited to: (i) force majeure of suppliers of Floatium, (ii) failure to properly fulfil obligations by suppliers that have been prescribed or recommended to Floatium by the Customer or their third party or parties, (iii) deficiencies in software or any third parties involved in the execution of the service, (iv) government measures, (v) failure of electricity, internet, data network and/or telecommunications facilities, (vi) illness of employees of Floatium or of third parties deployed by Floatium, (vii) pandemics and epidemics and (ix) other situations which, in the opinion of Floatium, fall outside its sphere of influence and which temporarily or permanently prevent Floatium from fulfilling its obligations.
In the event of force majeure, both Parties will be entitled to terminate the Agreement in whole or in part. All costs incurred before the termination of the Agreement will in that event be paid by the Customer. Floatium is not obliged to compensate the Customer for any losses caused by such a retraction.
Article 14 - Limitation of liability
If any result stipulated in the Agreement is not achieved, a shortcoming on the part of Floatium is only considered to exist if Floatium has explicitly promised this result at the acceptance of the Agreement.
In the event of attributable shortcoming on the part of Floatium, Floatium is only obliged to re-advertise free of charge and/or without payment of any compensation if the Customer has given Floatium notice of shortcoming within 14 days after the discovery of the shortcoming and Floatium has subsequently corrected this shortcoming within a reasonable period. The notice of default must be in writing and contain a sufficiently detailed description/substantiation of the shortcoming to enable Floatium to respond adequately.
If the performance of Services by Floatium leads to the liability of Floatium, that liability is limited to the total amount that is invoiced under the Agreement, but over a maximum period of 12 months prior to the event that caused the damage and only with regard to the direct damage suffered by the Customer, unless the damage is the result of intent or recklessness bordering on intent on the part of Floatium. Direct damage is understood to mean: reasonable costs incurred to limit or prevent direct damage, determining the cause of the damage, the direct damage, the liability and the manner of recovery.
Floatium emphatically excludes all liability for consequential loss. Floatium is not liable for consequential loss, indirect loss, trading loss, loss of profits and/or losses suffered, missed savings, loss due to business stagnation, loss of assets, delay loss, interest loss and immaterial damage.
The Customer indemnifies Floatium against all claims from third parties due to a defect as a result of a Material that was delivered by the Customer to a third party and that partly consisted of Services provided by Floatium, unless the Customer can prove that the damage was solely caused by the service provided by Floatium.
Floatium is not liable for any damage resulting from the use or shipment of the Materials provided by the Customer, except in the case of gross negligence or default on Floatium's part.
Floatium will treat the Materials entrusted to it by the Customer with care. Floatium expressly excludes all liability for loss, damage, destruction, disappearance or other destruction of Materials that are entrusted to it by the Customer.
Floatium cannot be held responsible for the correct and complete transfer of the content of e-mails sent by or on behalf of Floatium, nor for the timely receipt of such e-mails.
All claims by the Customer due to failure on the part of Floatium become invalid if they have not been reported to Floatium in writing within one year after the Customer was aware or could reasonably have been aware of the facts on which the Customer bases their claims. Floatium's liability expires one year after the termination of the Agreement between the parties.
Article 15 - Confidentiality
Floatium and the Customer undertake to maintain secrecy with regard to all confidential information obtained in the context of an order. Confidentiality arises from the order and must also be assumed if there is a reasonable expectation that the information is confidential. Confidentiality does not apply if the information concerned is already publicly/generally known, the information is not confidential and/or the information was not disclosed to Floatium by the Customer during the Agreement and/or was obtained by Floatium in another way.
Confidentiality applies in particular to the documents drawn up by Floatium, such as recommendations, designs, proposals and more with respect to the Agreement. The Customer is expressly forbidden to share the contents of these documents with employees who are not authorised to have knowledge of them and with unauthorised third parties. Furthermore, Floatium will always exercise the necessary care in handling all commercially sensitive information provided by the Customer.
If Floatium is required by law or a court order to share confidential information with a third party and Floatium cannot claim the right to refuse to give information, Floatium is not liable to provide any compensation and does not give the Customer the right to terminate the Agreement.
The transfer or distribution of information to third parties and/or publication of statements, recommendations or productions provided by Floatium to third parties requires the written permission of Floatium unless such permission has been explicitly agreed upon in advance. The Customer will indemnify Floatium against all claims by such third parties resulting from reliance on such information distributed without the written permission of Floatium.
The obligation to maintain confidentiality is also imposed by Floatium and the Customer on the third parties that they engage.
Article 16 - Intellectual Property Rights
All the Intellectual Property (IP) rights and copyrights of Floatium, including but not limited to all designs, models, reports and recommendations belong exclusively to Floatium and will not be transferred to the Customer unless expressly agreed otherwise. All the IP rights and copyrights of the Customer remain with the Customer and will not be transferred to Floatium. For the execution of the Agreement, Floatium receives an irrevocable right to use everything that the Customer delivers.
If it is agreed that one or more of the aforementioned items or works of Floatium will be transferred to the Customer, Floatium is entitled to conclude a separate Agreement for this and to demand a suitable financial compensation from the Customer. Such compensation must be paid by the Customer before it acquires the goods or works in question with the IP rights vested in them.
The Customer is prohibited from disclosing and/or reproducing, modifying or making available to third parties (including use for commercial purposes) all documents that are subject to the IP rights and copyrights of Floatium without prior written permission from Floatium. If the Customer wishes to make changes to anything delivered by Floatium, Floatium must explicitly approve the proposed changes.
The Customer is prohibited from using the goods and documents that are subject to the IP rights of Floatium in any way other than that agreed in the Agreement.
The parties will inform each other and take joint action in the event of an infringement of the IP rights.
Each infringement by the Customer of the IP rights (and copyrights) of Floatium will be penalised with a one-off fine in the amount of € 10,000 (in words: ten thousand euros) and a fine of € 500 (in words: five hundred euros) for each day that the infringement continues.
Article 17 - Safeguarding and accuracy of information
The Customer is responsible for the accuracy, reliability and completeness of all data, information, documents and/or records in whatever form that it provides to Floatium under the Agreement, as well as for the data that it has obtained from third parties and that have been provided to Floatium for the execution of the Service.
The Customer indemnifies Floatium against any liability resulting from non-compliance or late compliance with the obligations with regard to the timely provision of all correct, reliable and complete data, information, documents and/or records.
The Customer indemnifies Floatium against all claims from the Customer and third parties hired by them or working under them as well as clients of the Customer, based on the failure to obtain, or to obtain on time, any permissions required for the execution of the Agreement.
The Customer indemnifies Floatium against all claims by third parties that result from the work carried out for the Customer, including but not limited to intellectual property rights on the data and information provided by the Customer that can be used for the execution of the Agreement and/or the actions or omissions of the Customer towards third parties.
If the Customer provides electronic files, software or information carriers to Floatium, the Customer guarantees that these are free of viruses and defects.
Article 18 - Complaints
If the Customer is not satisfied with the service provided by Floatium or has other complaints about the execution of their order, the Customer is obliged to report these complaints as soon as possible, but at the latest within 7 calendar days after the event that led to the complaint. Complaints can be reported in writing via firstname.lastname@example.org with the subject 'Complaint'.
The Customer must provide sufficient justification and/or explanation of the complaint for Floatium to be able to process the complaint.
Floatium will respond to the complaint as soon as possible, but no later than within 7 calendar days after receipt of the complaint.
The parties will try to reach a solution together.
Article 19 - Applicable law
The legal relationship between Floatium and the Customer is governed by Dutch law.
Floatium has the right to change these general terms and conditions and will inform the Customer of the changes.
All disputes that arise from or as a result of the Agreement between Floatium and the Customer will be settled by the competent court of Rotterdam unless mandatory provisions of law indicate another competent court.
Rotterdam, 30 July 2021.