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General terms and conditions
Article 1 DEFINITIONS
1.1 Account: the username by which the Client gains access to the system of Digitalus Services.
1.2 E-mail address: an address code in the name of the Client for the purpose of sending and receiving electronic messages through the Internet
1.3 Client: the party with whom Digitalus Services has entered into an Agreement.
1.4 Manual: software and Client documentation provided to the Client by Digitalus Services for the duration of the Agreement for the purpose of access to the System and the Internet.
1.5 Homepage: an Internet web page in the name of the Client, or a title and introduction web page of a website on the Internet
1.6 Log-in procedure: the procedure as prescribed by Digitalus Services in order to enable the Client to access the System and the Internet
1.7 Netiquette: the generally accepted rules of conduct on the Internet as described in RFC 1855 (ftp://ftp.ripe.net/rfc/rfc1855.txt) as amended from time to time.
1.8 Agreement: the agreement by and between Digitalus Services and a Client pursuant to which Digitalus Services performs services for the benefit of the Client.
1.9 System: computer and related appliances through which Digitalus Services provides the Client access to the Internet
1.10 Website: one or more integrated Internet web pages, preceded by a homepage.
1.11 Digitalus Services: all services and assignments performed by Digitalus Services for the benefit of Clients.
Article 2 GENERAL
2.1 These general terms and conditions apply to all offers and Agreements by and between Digitalus Services and a Client insofar as not explicitly has been deviated therefrom in writing.
2.2 All offers and quotations made by Digitalus Services are free of obligation. An Agreement is concluded as of the moment Digitalus Services receives a returned fully filled out and signed application/authorization form which was sent to a future Client or has otherwise at the order of the future Client placed the Digitalus Services at its disposal. After the acceptance of an offer by a Client Digitalus Services may at any time rescind of the Agreement. In the event of rescission, no Agreement is concluded and Digitalus Services will be obligated to undo any payments already made by a Client. Digitalus Services has the sole discretion not enter into an Agreement with any future Client.
2.3 Digitalus Services reserves the right to amend these Terms and Conditions at any time. Amendments will become effective one (1) month after the announcement as described in article 11.2. If the event the Client does not agree to the amendments, the Client has the right to, in deviance of the contents of article 9.1, until the moment of commencement of the amendments, terminate the Agreement as of the date the amendments will become effective.
Article 3 RESPONSIBILITIES ANS OBLIGATIONS OF Digitalus Services
3.1 As a good service provider Digitalus Services makes an effort in offering:
providing the Client with access to the System for the Digitalus Services as described in the Agreement;
to bring about and preserve the connections through the System with the Internet;
the protection of any saved information;
3.2 Digitalus Services is unable to guarantee unobstructed access to the System and the Internet nor that the Digitalus Services can be used at all times.
3.3 Digitalus Services refrains from checking personal e-mail and/or documents from Clients and does not place these at the disposal of third parties, unless in the event Digitalus Services has the obligation to do so under any rule of law or under any court order, or in the event the Client acts or is suspected to act in defiance of article 4.2 up to and including 4.4 of these general terms and conditions.
Article 4 RESPONSIBILITIES AND OBLIGATIONS OF THE CLIENT
4.1 The Client agrees to take up a position and behave in accordance with what can be expected of a responsible and meticulous Internet user. The Client shall give Digitalus Services notice in writing of any changes of relevant information as soon as possible.
4.2 The Client refrains from impeding other Clients or Internet users or harming the System. The Client is not allowed to start any programs processes - whether of not through the System - of which the Client reasonably can suspect that these may obstruct or harm Digitalus Services, other Clients or Internet users. The Client may only start programs or processes when the Client has a direct connection to the system which is permitted by Digitalus Services.
4.3 The Client is not allowed to use the System and the disk space for actions and/or conduct which are in defiance of any applicable rule of law, Netiquette, the guidelines of the Dutch Reclame Code Commission, the Agreement or these general terms and conditions. These include amongst other but not limited to, the following actions and conduct:
spamming: the unasked sending of big amounts of e- mail with equal content and/or the unasked posting in numerous Internet news groups of a message with equal content;
violating copyrights or other performing other conduct in defiance of any intellectual property right of third parties; publishing and/or distributing of child pornography;
sexual intimidation or otherwise troubling persons; hacking: the illegal break in to other computers or other computer systems on the Internet
4.4 The client is not authorized to pass on or give into use his or her Account, the Manual or other rights resulting from the Agreement, unless Digitalus Services has explicitly granted the Client permission for this purpose. Notwithstanding any of the foregoing, the Client has the right to have a website designed, placed and maintained by a third party. Nevertheless, the Client remains responsible for the use of his or her Account and password.
4.5 The client provides for necessary hard- and software, peripheral equipment and connections to allow access to the System.
4.6 The client is bound by the amount of disc space as described in the Agreement. The Client is responsible for not exceeding this amount. In the event the amount is exceeded, Digitalus Services is allowed to remove any information for the purpose of a proper functioning of the Digitalus Services.
4.7 The client hereby grants permission to Digitalus Services to enter his or her personal information in the client registry for the purpose of administration. The client registry is solely accessible for Digitalus Services and will not be handed out to third parties, unless in the event Digitalus Services has the obligation to do so under any rule of law of by any court order.
Article 5 LIABILITIES
5.1 Digitalus Services cannot be held liable for any damages to the Client in the broadest sense, unless the damages are caused by willful misconduct or gross negligence of Digitalus Services. Digitalus Services is especially not liable for damage concerning or arising from: interruption in or blocking of access to the System or the Internet, the "Millennium problem issues" with Digitalus Services or third parties, a lack in the security of the storage of data of the Client, actions by or behavior of other Clients and/or Internet users and changes in the dial-in numbers, log-in procedures, Account and e-mail address.
5.2 The Client shall be held liable for any and all damages and costs incurred by Digitalus Services as a result of the Client's violation of the Agreement and/or these general terms and conditions.
5.3 The Client hereby indemnifies and hold Digitalus Services harmless from/against any possible claims by/from third parties for any and all damages or otherwise arising from or as a result of either the Client's use of the Account, the System or the Internet or the violation by the Client of its obligations under the Agreement or these general terms and conditions.
5.4 Digitalus Services has the right to, without any prior notice, immediately suspend a Client's access to the System if and for as long as a Client performs any activity in violation of rules as stated in articles 4.1 up and including 4.5. Moreover, Digitalus Services has the right, if the seriousness of the violation justifies so, to terminate the Agreement immediately without any rights for the Client to receive compensation.
5.5 Digitalus Services will make an effort to perform the services agreed on to the best of its abilities and insight in accordance to the demands of good expertise, all this according to reasonable expectations towards Digitalus Services in performing this task.
5.6 The Client warrants for the soundness and completeness of the information provided to Digitalus Services. Digitalus Services cannot be held liable for damages caused by or arising from the faultiness or incompleteness of the information provided by or on behalf of the Client.
5.7 The total liability of Digitalus Services for attributable failure in the performance of its obligations under the Agreement is limited to compensation for the direct damages to a maximum amount of the stipulated price under the Agreement (excluding VAT). If the Agreement primarily concerns as continuing performance agreement with duration of over six (6) months, the stipulated price will be set at the total amount of the payments (excluding VAT) for six (6) months. In no event the total amount for compensation for damages will exceed € 453,780.22.
5.8 Direct damage is only understood to mean:
a) the reasonable costs incurred by a Client to make Digitalus Services perform as pursuant to the Agreement. These damages will not be compensated in the event the Client has terminated the Agreement;
b) the costs necessarily incurred by the Client for being forced to keep its old system or systems and any coherent arrangement operational, because Digitalus Services has not delivered the services at the binding delivery date, reduced with the possible savings as a result of the late delivery;
c) the reasonable costs incurred for establishing the cause and the scope of the damages, as far as this establishment concerns direct damages under these terms and conditions.
d) the reasonable costs incurred for preventing or reducing damages, as far as the Client can prove that these costs have led to a reduction of the direct damages in the sense of these terms and conditions.
5.9 In no event the total liability of Digitalus Services for damages to persons or goods will exceed the amount of € 1,134,450.54 per event, whereby a succession of related occurrences shall be deemed to be one event.
5.10 The liability of Digitalus Services excludes indirect damages among which, but not limited to consequential damages, loss of profit, loss of savings and loss due to business interruption.
5.11 Except as described in articles 4 and 5, Digitalus Services is not liable for any compensation, regardless of the grounds for such compensation. The maximum amounts for compensation as stated in article 4 and 5 are no longer applicable, in the event damages are the result of willful misconduct or gross negligence of Digitalus Services.
5.12 The liability of Digitalus Services for attributable failure in the performance of its obligations under the Agreement only arises in the event the Client immediately gives proper notice of default in writing to the Companyserver, granting a reasonable term to cure the attributable failure and thereafter Digitalus Services continuous to fail to perform its obligations under the Agreement. The notice of default must include an as much as possible detailed description of the failure to perform, for Digitalus Services is able to react in a proper manner.
5.13 A condition for any entitlement to compensation is always that the Client has reported the damages to Digitalus Services in writing as soon as possible after such entitlement has arisen.
5.14 The Client hereby indemnifies and hold Digitalus Services harmless from/against any and all possible claims by/from third parties regarding product liability as a result of a lack in or failure of any product or system which has been supplied by the Client to a third party and which comprise of any equipment, software or other materials supplied by Digitalus Services, notwithstanding and insofar as the Client proofs that the damages are the result of these equipment, software or other materials.
5.15 The Agreement between the Client and Digitalus Services is governed by Dutch law. All disputes arising between the Client and Companyserver in connection with the Agreement between Client and Digitalus Services or in connection with other agreements as a result thereof, shall exclusively be submitted to the competent court.
Article 6 SERVICES OFFERED BY Digitalus Services
6.1 For the purpose of granting the Client access to the System and the Internet, Digitalus Services provides the Client with a non-exclusive and non-transferable right to use the System and the Manual for the duration of the Agreement. The Client is not allowed to make copies of the Manual in any way other than necessary for its personal use and back-up purposes. When making a copy, the Client has to preserve all the signs which are qualifying for the ownership and origin.
6.2 Digitalus Services, commissioned by the Client and for remuneration, provides for the registration of domain names with the Dutch Foundation for Domain Registration ("Stichting Domeinregistratie") or Internic. The choice of the domain name is at full account and risk of the Client and Digitalus Services does not accept any liability concerning the choice and use of the domain name.
6.3 Digitalus Services offers her clients the possibility to open ther own homepage. Digitalus Services shall provide there clients limited webspace ore disk space. With the exploitation of a commercial homepage or website, determined by Digitalus Services are set additional fee' s. Should Digitalus Services design and develop a home page or website in order of the client, then all owner rights for this home page or website belong to Digitalus Services unless otherwise agreed.
6.4 Digitalus Services has the right to suspend or deny a Client's access to the System in the event the Client exceeds the amount of (free) data traffic in a calendar month as agreed upon. The Client is obliged to pay the reasonable costs of this exceeding to Digitalus Services. Digitalus Services will only effectuate the suspension or denial five (5) days after the Client has been notified thereof. Digitalus Services can not be held liable for any damages as a result of such suspension or denial. The records of Digitalus Services will provide the parties with binding proof of such exceeding of the amount of data traffic, except for proof of the contrary by the Client.
Article 7 COMPLAINTS
7.1 Digitalus Services makes an effort to handle complaints concerning the services of Digitalus Services as well as possible and to strive for an improvement of the services. Digitalus Services is not obliged to respond to received complaints in person.
7.2 The filing of a complaint does not affect any other obligations of the Client.
Article 8 SYSTEM MANAGEMENT
8.1 Digitalus Services is, without prior notice, authorized to (temporarily) put the System out of use or restrict its use as far as such is necessary in fairness for maintenance of or for necessary alterations to or improvement of the System by Digitalus Services, without any rights of the Client towards Digitalus Services to receive compensation.
8.2 Digitalus Services is at any time authorized to alter the dial-in numbers, the log-in procedures, the Account and e-mail addresses, without any rights of the Client towards Digitalus Services to receive compensation. In case of an alteration, Digitalus Services will inform the Client thereof as soon as possible.
Article 9 TERMS AND TERMINATION OF THE CONTRACT
9.1 The contract will last one year and will be extended with the period of one year without any further notice. Termination notice of the contract must be received at least 3 months before extending the contract. The termination notice has to be sent by registered letter to Digitalus Services.
Article 10 ANNULMENTS
10.1 If the event the Client does not properly or in time comply with any of its obligations pursuant to the Agreement with Digitalus Services and/or these general terms and conditions, or in the event of reasonable doubt whether the Client is able to comply with any of these obligations towards Digitalus Services, Digitalus Services is authorized, without any prior notice of default or judicial intervention, to either suspend the Digitalus Services as agreed upon, to fully or partially terminate the Agreement, all this without the right of any compensation and without prejudice to the remaining rights of Digitalus Services.
10.2 Digitalus Services is authorized, without any notice of default or judicial intervention, to immediately terminate the Agreement and to suspend the Digitalus Services if the client:
has provided invalid and/or incorrect personal information to Digitalus Services;
failed to provide correct information or changes thereto;
entered into the Agreement under false pretences;
acts in violation of article 4.1 up and including 4.5;
is declared bankrupt or filed a bankruptcy petition itself;
applied for suspension of payments;
is placed under guardianship or is dissolved.
Article 11 COSTS
11.1 The Client is indebted a certain fee to Digitalus Services depending on the services from Digitalus Services. All fees exclude VAT, administration fees and possible extra duty and/or rights, unless stated otherwise.
11.2 Digitalus Services is at all times allowed to change the height of the fees and other costs. Changes are being announced at least 2 (two) months before becoming effective on the Digitalus Services website. Clients who can't agree with the changes are authorized, as a deviation of article 9.1, until the moment the changes take effect, to terminate the contract by the date the changes become effective.
Article 12 PAYMENTS
12.1 The fees due to Digitalus Services must be paid in advance, unless agreed on otherwise in writing. The Client has the obligation to pay the amount due within fourteen (14) days after the date of the invoice.
Article 13 FORCE MAJEURE
13.1 Force majeure shall mean all exterior causes being reasonably unforeseeable and as a result of which Digitalus Services is unable to fulfill its obligations towards the Client. This includes, amongst others but not limited to, disturbances in the connection to the Internet, disturbances in the telecommunication infrastructure and disturbances in the network.
13.2 Digitalus Services has the right to plead force majeure when the circumstances that prevent Digitalus Services from fulfilling its obligations occur after Digitalus Services had to perform its obligations.
13.3 During force majeure the delivery and other obligations of Digitalus Services are being suspended. In the event the period in which Digitalus Services is unable to fulfill its obligations as a result of force majeure exceeds a period of two (2) weeks, each of the parties is allowed to terminate the Agreement out-of-court, without any right to compensation of the other party.
Article 14 DISPUTES AND APPLICABLE LAW
14.1 All agreements between Digitalus Services and the Client are governed by Dutch law. The competent court in Groningen, The Netherlands shall have exclusive jurisdiction concerning the agreements between Digitalus Services and the Client.
14.2 If a Client, not acting on in the course of his or her profession or his or her company, disagrees with the choice as stipulated in article 14.1, the Client is authorized, within a period of one (1) month after Digitalus Services invokes article 14.1, to opt for the dispute to be settled by a competent court according to the law.
14.3 In the event one or more of the provisions of these general terms and conditions are null and void or avoided, the other provisions will remain fully in effect. In the event of annulment of one or more provisions of these terms and conditions, the parties are bound to provisions of as much as possible equal import, which are not voidable.
