These general terms and conditions apply to every offer or quotation from Service Provider with regard to Services and form an integral part of every Agreement between Service Provider and Customer. Provisions or conditions set by the Customer that deviate from or do not appear in these General Terms and Conditions are only binding on the Service Provider if and insofar as they have been expressly accepted by the Service Provider in Writing.
Capitalized terms have the meaning stated in the first article.
Article 1. Definitions of terms used
The following definitions apply in these terms and conditions:
Service provider: the Cloudwebservices company, established in Hoorn and registered at the Chamber of Commerce under file number 72040025.
Service Provider Website: the website of the Service Provider, accessible via the domain https://cloudwebservices.nl.
Subscription: the Agreement whereby one or more of the parties undertake to perform continuously or continuously again for a certain period of time (eg a 12-month hosting contract).
Account: the right of access to a user interface with which the Client can manage and configure (certain aspects of) the Services, as well as the configuration (s) and the files stored for the Client itself.
Terms and Conditions: the provisions of this document.
Customer: the natural person or legal person with whom the Service Provider has concluded an Agreement. Also meant is the person who enters into or is negotiating with the Service Provider, as well as his representative (s), authorized representative (s), successor (s) and heirs.
Services: the products and / or services that the Service Provider will provide to the Customer pursuant to an Agreement.
Materials: all works, such as websites and (web) applications, software, house styles, logos, leaflets, brochures, leaflets, lettering, advertisements, marketing and / or communication plans, concepts, images, texts, sketches, documentation, advice, reports and other products of the spirit, as well as preparatory material thereof and (whether encoded or not) files or data carriers on which the Materials are located.
Agreement: any agreement between the Service Provider and the Client on the basis of which the Service Provider provides Services to the Client.
Written: in addition to paper documents, also e-mail and communication by fax, provided that the identity of the sender and the integrity of the message are sufficiently established.
Applications With Increased Risk: applications where an error in the Services can lead to death or serious injury, serious environmental damage or loss of (personal) data with very high consequential damage. Examples of applications with increased risk are: transport systems where an error can cause trains to derail or aircraft crashes; medical systems in which an error can result in a patient being unable to receive treatment or receiving treatment incorrectly; systems on which a substantial part of the population depends on the allocation of crucial government services, such as DigiD; systems in which (much) medical data or other special data within the meaning of the Personal Data Protection Act or other highly sensitive data are stored.
Article 2. Contract conclusion
2.1. Customer can request the Services directly from the Service Provider Website. The Agreement arises at the time of sending the (whether or not automatically generated) e-mail from the Service Provider containing the confirmation and acceptance of the request.
2.2. If the Customer is a consumer, the Customer has a period of fourteen days from the time the order was made to terminate the Agreement in Writing and free of charge.
Article 3. Execution of the Agreement
3.1. After the conclusion of the Agreement, the Service Provider will comply with it to the best of its ability and with due care and expertise.
3.2. The Service Provider will endeavor to achieve high-quality and uninterrupted availability of Services and associated systems and networks, and to achieve access to data stored by the Client. However, the service provider offers no guarantees regarding quality or availability, unless otherwise agreed in the quotation by means of a Service Level Agreement (SLA) designated as such.
3.3. Terms of delivery specified by the Service Provider always have an indicative purpose, except where the applicable SLA sets deadlines that cannot be construed as an obligation of result.
3.4. The Service Provider is not entitled to have certain work done by third parties without separate permission from the Customer.
3.5. If agreed, the Service Provider will provide the Client with access to an Account. The Account will be accessible by entering a password and username. Any action that takes place through the Client's Account or an Account created by the Client is deemed to have taken place under the responsibility and risk of the Client. If the Customer suspects or should reasonably suspect or know that an account is being misused, the Customer must report this to the Service Provider as soon as possible so that it can take measures.
3.6. The Service Provider will remain available for a reasonable level of remote customer support by telephone and e-mail, during regular business hours, to the extent that the applicable SLA does not provide otherwise.
3.7. All changes to the Agreement, either at the request of the Customer or as a result of the fact that, due to circumstances, a different execution is necessary, if additional costs are involved, this will be regarded as additional work and to the extent that this will mean fewer costs as less work. These are invoiced to the Client accordingly.
Article 4. Obligations of the Customer
4.1. Customer is obliged to do everything that is reasonably necessary and desirable to enable a timely and correct execution of the Agreement. In particular, the Client ensures that all data that the Service Provider indicates is necessary or that the Client should reasonably understand to be necessary for the performance of the Services is provided to the Service Provider on time. The period within which the Service Provider must execute the Agreement does not commence until all requested and required information has been received by the Service Provider.
4.2. If the Customer knows or can suspect that the Service Provider will have to take certain (extra) measures to be able to meet his obligations, the Client will immediately inform the Service Provider thereof. This obligation applies, for example, if the Customer knows or ought to foresee that there will be an extraordinary peak in load on the systems of the Service Provider, which could in some probability cause unavailability of the Services. This applies all the more if the Client knows that Services are also being delivered to others via the same systems that the Service Provider uses to deliver the Services to the Client. After warning, the Service Provider will do everything possible to prevent the Services being unavailable. Unless explicitly agreed otherwise In Writing, all reasonable additional costs incurred thereby may be charged to the Client.
4.3. Customer may under no circumstances use the Services for Increased Risk Applications.
4.4. If, for the specific use that he gives or intends to give to the Services, the Client requires any license or other permission from government agencies or third parties, the Client must take care of obtaining them. The Client guarantees to the Service Provider that he possesses all permits and / or permissions that are necessary for the Client's use of the Services.
Article 5. Rules of conduct and notice / takedown
5.1. The Client is prohibited from using the Services to violate Dutch or other laws or regulations applicable to the Client or Service Provider or to infringe the rights of others.
5.2. It is (whether this is legal or not) prohibited by the Service Provider using the Services to offer or distribute Materials that:
• unmistakably intended to be helpful to others in violating the rights of third parties, such as websites with (exclusively or mainly) hacking tools or explanation about computer crime that is apparently intended to enable the reader to (do) the described criminal behavior commit and not to be able to defend against it;
• be unmistakably libelous, defamatory, insulting, racist, discriminatory or hate speech;
• contain child pornography or bestiality pornography or are apparently aimed at helping others to find such materials;
• constitute a violation of the privacy of third parties, including in any case but not exclusively the distribution of personal data of third parties without permission or necessity or the repeated harassment of third parties with undesirable communication;
• contain hyperlinks, torrents or references with (locations of) material that unmistakably infringes copyright, neighboring rights or portrait rights;
• contains unsolicited commercial, charitable or idealistic communication;
• contains malicious content such as viruses or spyware.
5.3. The distribution of pornographic Materials through the Services is not permitted.
5.4. Customer refrains from hindering other customers or internet users or causing damage to systems or networks of Service Provider or other customers. The Client is forbidden to start processes or programs, whether or not via the Service Provider's systems, of which the Client knows or can reasonably suspect that such service provider, its customers or internet users are hindered or harmed.
5.5. If, in the opinion of the Service Provider, nuisance, damage or other danger arises for the functioning of the computer systems or the network of Service Provider or third parties and / or services via the Internet, in particular due to excessive sending of e-mail or other data, denial of service attacks, poorly protected systems or activities of viruses, Trojans and similar software, the Service Provider is entitled to take all measures that it deems reasonably necessary to avert or prevent this danger. The service provider may recover the costs that are reasonably necessary associated with these measures from the Customer.
5.6. If the Service Provider receives a complaint about violation of this article by the Customer, or finds that this appears to be the case, the Service Provider will inform the Customer of the complaint or violation as soon as possible. Customer will give a response as soon as possible, after which Service Provider will decide how to act.
5.7. If the Service Provider believes that there has been a violation, it will block access to the Material in question, but without permanently removing this Material (unless this proves technically impossible, in which case the Service Provider will make a backup). The service provider will make every effort not to touch any other Materials. The Service Provider will inform the Client as soon as possible of the measures taken.
5.8. The service provider is at all times entitled to report criminal offenses that have been established. The Service Provider is furthermore entitled to hand over the Client's name, address and other identifying information to a third party who complains that the Client infringes his rights or these General Terms and Conditions, provided that the accuracy of that complaint is reasonably reasonable and the third party has a clear has an interest in delivering the data.
5.9. Although the Service Provider strives to act as reasonably, carefully and adequately as possible after complaints about the Client, the Service Provider is never obliged to compensate for damage as a result of measures as referred to in this article.
5.10. The Client is permitted to deliver the Services (to “resell”), but only in combination with or as part of the Client's own products or services and without making the name of the Service Provider known as a supplier or subcontractor. Customer must indemnify Service Provider from all claims by its customers. The service provider may also act fully in the event of violations of these general terms and conditions by these customers.
Article 6. Request for domain names
6.1. The application, allocation and possible use of a domain name depend on and are subject to the applicable rules and procedures of the relevant registration authorities, such as the Foundation for Internet Domain Registration in the Netherlands for .nl domain names. The relevant authority decides on the allocation of a domain name. The service provider only plays a mediating role in the application and does not guarantee that an application will also be honored.
6.2. The Customer can only ascertain from the confirmation from the Service Provider, which states that the requested domain name has been registered, the fact of registration. An invoice for registration costs is not confirmation of registration.
6.3. The Client indemnifies and holds the Service Provider harmless for all damage relating to (the use of) a domain name on behalf of or by the Client. The Service Provider is not liable for any loss by the Client of its right (s) to a domain name or for the fact that the domain name is requested and / or acquired by a third party in the interim, except in the case of intent or deliberate recklessness on the part of the Service Provider.
6.4. Customer must conform to the rules that registration authorities set for requesting, assigning or using a domain name. The service provider will refer to these rules during the registration procedure.
6.5. The Service Provider has the right to make the domain name inaccessible or unusable, or to place it in its own name if the Client demonstrably fails to comply with the Agreement, but only for the duration that the Client is in default and only after the expiration of a reasonable period for compliance stated in a written notice of default.
6.6. In the event of termination of the Agreement due to breach of contract by the Client, the Service Provider is entitled to cancel a domain name of the Client with due observance of a notice period of two months.
Article 7. Storage and data limits
7.1. The Service Provider may set a maximum amount of storage space or data traffic per month that the Client may or may actually use in the context of the Services.
7.2. If the Customer exceeds the applicable limits, the Service Provider may, after sending at least one warning message to the Customer regarding the exceedance, charge an additional amount per data unit (eg MB or GB) equal to the exceedance, in accordance with the relevant amounts applicable in the price list.
7.3. No liability exists for the consequences of not being able to send, receive, save or change data if an agreed limit for storage space or data traffic has been exceeded.
7.4. If an excessive amount of data traffic is caused by an external cause (such as in the case of a denial of service attack), the Service Provider is entitled to pass on the costs reasonably to the Customer.
Article 8. Intellectual property rights
8.1. All intellectual property rights on all Materials developed or made available by the Service Provider in the context of the Agreement rest exclusively with the Service Provider or his licensors.
8.2. The Client only obtains the rights of use and powers that are explicitly granted in Writing in these General Terms and Conditions, the Agreement or otherwise, and for the rest the Client will not reproduce or disclose these Materials. The aforementioned suffers an exception if it has unmistakably been mistakenly mistaken to grant the Client such an express right. However, the issue of source code for Materials is only mandatory at all times if explicitly agreed.
8.3. Unless if and in so far as it has been agreed otherwise In Writing, the Client is not permitted to remove or change any indication regarding copyright, brands, trade names or other intellectual property rights from these Materials, including indications regarding the confidential nature and secrecy of the Materials. .
8.4. The Service Provider is permitted to take technical measures to protect its Materials. If the Service Provider has secured these Materials by means of technical protection, the Client is not permitted to remove or circumvent this protection, unless and insofar as the law compels the contrary.
Article 9. Prices
9.1. Unless explicitly stated otherwise for an amount, and unless it concerns a consumer customer, all prices stated by the Service Provider include sales tax and other levies imposed by the government.
9.2. If a price is based on data provided by the Customer and this data turns out to be incorrect, the Service Provider has the right to adjust the prices accordingly, even after the Agreement has already been concluded.
9.3. If the Agreement concerns a Subscription, the Service Provider is entitled to change the rates applied once a year.
9.4. Price changes are subject to the same conditions and procedures as for changing the Services and these General Terms and Conditions.
Article 10. Payment conditions
10.1. The Service Provider will invoice the amounts owed by the Customer to the Customer. The service provider may thereby issue electronic invoices. The Service Provider has the right to charge periodic amounts due prior to the delivery of the Services.
10.2. The payment term of an invoice is 14 days after the invoice date, unless otherwise agreed in Writing.
10.3. If the Customer has not paid in full after 14 days after the payment term, he will automatically be in default without any notice of default being required.
10.4. If the Client is in default, this will have the following consequences:
• The statutory interest is due on the outstanding amount;
• The customer owes 15% of the principal sum in collection costs, with the minimum amount of 40 euros if the amount is lower than the principal sum;
• In addition to the amount owed and the interest thereon, the client is obliged to fully compensate both extrajudicial and judicial collection costs, including the costs for lawyers, lawyers, bailiffs and collection agencies;
• the websites and other Materials hosted for the Client may be made inaccessible without further warning until the outstanding amounts, interest and the like have been paid.
10.5. Unless the Client is a consumer, reliance by the Client on suspension, settlement or deduction is not permitted.
10.6. In the event that the Client fails to comply with any obligation under the Agreement, the Service Provider is entitled to take back goods delivered in addition to the suspension of Services, without prejudice to the Service Provider's right to compensation for loss, loss of profit and interest.
Article 11. Liability
11.1. The Service Provider is not liable in the context of the formation or implementation of the Agreement, except in the cases mentioned below, and at most up to the specified limits. However, in cases where the compensation arrangement in the SLA, which constitutes a penalty clause, applies, the payment below replaces compensation for the actual damage that might arise from breach of the SLA standards.
11.2. The total liability of the Service Provider for damage suffered by the Customer as a result of an attributable shortcoming in the Service Provider's compliance with his obligations under the Agreement, explicitly including any shortcoming in the fulfillment of a guarantee obligation agreed with the Customer, or due to an unlawful act. of the Service Provider, its employees or third parties engaged by it, is limited per event or a series of related events to an amount equal to the total of the reimbursements (excluding VAT) that the Customer has paid under the Agreement up to the moment at which the damage was or, if the Agreement has a duration of more than three (3) months, an amount equal to the reimbursements paid by the Client in the last three (3) months. However, under no circumstances will the total compensation for direct damage amount to more than a thousand (1,000) euros (excluding VAT).
11.3. The service provider is explicitly not liable for:
a) any damage suffered as a result of measures taken by the Service Provider in good faith, but which have nevertheless been found to have been imposed in error;
b) damage from unavailability of the Services, lost data and breach of technical or organizational security measures, and
c) Indirect damage, consequential damage, lost profit, missed savings and damage due to business interruption.
11.4. The liability of the Service Provider for attributable failure to comply with the Agreement arises only if the Client gives the Service Provider immediate and proper Written notice of default, thereby stipulating a reasonable period of time to clear the shortcoming, and the Service Provider also accountable for the fulfillment of his obligations beyond that period. fall short. The notice of default must contain as detailed a description as possible of the shortcoming, so that the Service Provider is able to respond adequately. The notice of default must be received by the Service Provider within 14 days after the discovery of the damage.
11.5. The exclusions and limitations referred to in this article will lapse if and insofar as the damage is the result of intent or deliberate recklessness on the part of the Service Provider's management.
11.6. The Client is liable towards the Service Provider for damage caused by an error or shortcoming attributable to it. The Client indemnifies the Service Provider against claims regarding non-compliance with the rules of conduct in these General Terms and Conditions when using the Services by or with the consent of the Client. This indemnification also applies to persons who, although not employees of the Customer, have nevertheless used the Services under the responsibility or with the consent of the Customer.
Article 12. Force majeure
12.1. None of the parties can be held to fulfill any obligation if a circumstance that is beyond the control of the parties and that could not or should not have been foreseen at the conclusion of the Agreement, invalidates any reasonable possibility of compliance.
12.2. Force majeure includes (but is not limited to): disruptions of public infrastructure that is normally available to the Service Provider and on which the provision of the Services is dependent, but over which the Service Provider cannot exercise any actual power or contractual compliance obligation, such as the operation of the Service Provider. registers of IANA, RIPE or SIDN, and all networks in the internet with which the Service Provider has not concluded a contract; disruptions in infrastructure and / or Services of Service Provider that are caused by computer crime, for example (D) DOS attacks or successful attempts to bypass network security or system security; shortcomings of suppliers of Service Provider that Service Provider could not foresee and for which Service Provider cannot hold its supplier liable, for example because the supplier in question (also) had force majeure; defectiveness of goods, equipment, software or other source material for which the Customer has prescribed the use; unavailability of staff (due to illness or otherwise); government measures; general transport problems; strikes; wars; terrorist attacks and internal riots.
12.3. If a force majeure situation lasts longer than three months, each of the parties has the right to terminate the Agreement in Writing. In that case, what has already been performed under the Agreement will be settled proportionally, without the parties owing each other anything else.
Article 13. Confidentiality
13.1. Parties will treat information that they provide to each other before, during or after the execution of the Agreement confidentially when this information is marked as confidential or when the receiving party knows or should reasonably suspect that the information was intended to be confidential. The parties also impose this obligation on their employees and on third parties engaged by them for the implementation of the Agreement.
13.2. The Service Provider will not take cognizance of data that the Client stores and / or distributes via the Service Provider's systems, unless this is necessary for the proper execution of the Agreement or the Service Provider is obliged to do so by virtue of a legal provision or court order. In that case, the Service Provider will endeavor to limit the knowledge of the data as much as possible, insofar as this is within its control.
13.3. The obligation of confidentiality also remains after termination of the Agreement for whatever reason, and for as long as the party providing the information can reasonably claim the confidential nature of the information.
Article 14. Duration and cancellation
14.1. The duration of the Agreement is that period of time required to deliver the Services. If the Agreement is a Subscription, it is entered into for One (1) month.
14.2. If a fixed term for the Subscription has been agreed, the parties may prematurely terminate the Agreement with a cancellation period of 30 days. Each of the parties may cancel an Agreement that has been entered into for an indefinite period of time, subject to a notice period of 14 days.
14.3. In the absence of timely cancellation, a Subscription will be converted to an indefinite period after the first contract period has expired. You can cancel at any time with a notice period of one month.
14.4. The Service Provider may immediately suspend or terminate the Agreement In Writing if at least one of the following special grounds applies:
a) Customer is in default with regard to an essential obligation;
b) The Client's bankruptcy has been requested;
c) Customer has applied for a moratorium on payments;
d) The activities of the Customer are terminated or liquidated.
14.5. If the Service Provider suspends the fulfillment of the obligations, it retains its claims under the law and the Agreement, including the entitlement to payment for the Services that have been suspended.
14.6. If the Agreement is terminated or dissolved, the claims of the Service Provider against the Customer are immediately due and payable. In the event of termination of the Agreement, amounts invoiced for work performed will remain due without any obligation to cancel. In the event of dissolution by the Client, the Client may only dissolve that part of the Agreement that has not yet been performed by the Service Provider. If the termination is attributable to the Customer, the Service Provider is entitled to compensation for the damage that directly and indirectly arises as a result.
14.7. The right to suspend in the aforementioned cases applies simultaneously to all Agreements concluded with the Customer, even if the Customer is only in default with regard to one Agreement, and without prejudice to the Service Provider's right to compensation for loss, lost profit and interest.
Article 15. Procedure after termination
15.1. After termination of the Agreement, as a result of termination or dissolution, the Service Provider may immediately cancel the Client's Account and the Service Provider will delete the data stored for the Client as quickly as possible. In that case, the Service Provider is not obliged to provide the Client with a copy of this data.
15.2. The deletion of data stored for the Customer is always done with the help of a software 'data shredder', to make the deletion irreversible. (The word "irreversible" refers to the process of erasing and does not mean that the data would no longer be present anywhere in the world.)
Article 16. Ranking and change of conditions
16.1. The Service Provider reserves the right to change or supplement the Services and these General Terms and Conditions. Changes also apply to Agreements already concluded with due observance of a period of 30 days after the change is announced.
16.2. Changes are announced on the Service Provider Website, or by e-mail to the Client, or another channel where the Service Provider can prove that the announcement has arrived at the Client. Non-substantive changes of minor importance can be implemented at any time and do not require notification.
16.3. If the Client does not want to accept a change, the Client must inform the Service Provider of this In Writing within two weeks after being notified. The service provider can then reconsider the change. If the Service Provider does not withdraw the change thereafter, the Customer may terminate the Agreement by this date until the new conditions take effect.
16.4. Provisions that relate to specific Services take precedence over general provisions that apply to all services if they apply. Further agreements between the Service Provider and the Customer will only take precedence over these General Terms and Conditions if they are in Writing and if this is expressly stipulated, or if the intention of both parties was unmistakably.
Article 17. Other provisions
17.1. Dutch law applies to the Agreement.
17.2. To the extent that the rules of mandatory law do not prescribe otherwise, all disputes that may arise under the Agreement will be submitted to the competent Dutch court for the district in which the Service Provider is established.
17.3. If any provision from the Agreement appears to be void, this does not affect the validity of the entire Agreement. In that case, the parties will adopt (a) new provision (s) as a replacement, which will give shape to the intention of the original Agreement and General Terms and Conditions as much as legally possible.
17.4. Information and announcements, including price indications, on the Service Provider Website are subject to programming and typing errors. In the event of any inconsistency between the Website and the Agreement, the Agreement prevails.
17.5. The log files and other electronic or non-electronic administration of the Service Provider constitute complete proof of statements made by the Service Provider and the version of any (electronic) communication received or stored by the Service Provider is considered authentic, subject to proof to the contrary to be provided by the Client.
17.6. The parties will always inform each other immediately In Writing of any changes in name, postal address, e-mail address, telephone number and, if requested, bank or giro account number.
17.7. Each party is only entitled to transfer its rights and obligations under the Agreement to a third party with the prior written consent of the other party. However, this permission is not necessary in the event of a company takeover or acquisition of the majority of the shares of the party concerned.
Last updated: 1-7-2018 by Bryan Barbolina
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