Terms and conditions

Version 1.0 | January 2024

These are the general terms and conditions of Sadeno B.V., located at Verlengde Velmolen 17 in Uden, registered with the Chamber of Commerce under registration number 87621061, and accessible online at https://sadeno.com (hereinafter referred to as the “supplier”).

These general terms and conditions apply to every agreement for the provision of services concluded between the supplier and the natural or legal persons who purchase the services (hereinafter referred to as the “customer”).

Supplier and customer are hereinafter collectively referred to as the “Parties” and individually as the “Party.”

In the context of the services provided by the supplier, personal data may be processed. The data processing agree

Article 1: definitions

All terms written in capital letters in these general terms and conditions, both in singular and plural form, shall have the meanings ascribed to them in this article.

1.1. Account: any user interface through which the customer, after entering login credentials, can manage and configure (certain aspects of) the Services, as well as the configuration(s) and the files stored by or for the customer.

1.2. Website: the website of the supplier, accessible via the domain mentioned in the preamble of these General Terms and Conditions.

1.3. General Terms and Conditions: The provisions of this document.

1.4 Consumer: The customer acting as a natural person, not in the course of his profession or business.

1.5. Services: The products and/or services that the supplier will provide to the customer under an Agreement.

1.6. Intellectual Property Rights: All intellectual property rights and related rights, including but not limited to copyrights, database rights, domain name rights, trade name rights, trademark rights, design rights, neighboring rights, patent rights, as well as rights to know-how.

1.7. Customer Data: All data stored by the customer (or the end users of the Services) via or with the use of the Services, or otherwise provided by the customer (or the end users of the Services) to the supplier.

1.8. Materials: All works, such as websites and (web) applications, software, corporate identities, logos, brochures, leaflets, lettering, advertisements, marketing and/or communication plans, concepts, images, texts, sketches, documentation, advice, reports, and other intellectual creations, as well as preparatory material thereof and (whether or not encoded) files or data carriers on which the Materials are located.

1.9 Agreement: Any agreement between the supplier and the customer under which the supplier provides Services to the customer and to which these General Terms and Conditions and any appendices form an integral part.

1.10 Supplementary Terms Overview: The online overview of terms and conditions of third parties that, in addition to these General Terms and Conditions, are additionally applicable to certain Services. The overview and the relevant terms can be consulted and downloaded via https://sadeno.com/terms.

1.11 Service Level Agreement: Any additional agreement concluded between the Parties in which agreements are made regarding the quality of the provided Services, which is linked to concrete and measurable key performance indicators.

1.12 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 an increased risk are transport systems where an error can result in trains derailing or aircraft crashing; medical systems where an error can result in a patient not being able to receive treatment or receiving the wrong treatment; systems on which a substantial part of the population depends for the provision of crucial government services, such as DigiD; systems in which (many) medical data or other special categories of data within the meaning of the General Data Protection Regulation (hereinafter: “GDPR”), or otherwise very sensitive data are stored.

1.13 Data Processing Agreement: any additional agreement concluded between the Parties in which agreements are made regarding the handling and security of personal data, which in such case replaces Appendix 1 of these General Terms and Conditions.

1.14 Business Days: the days from Monday to Friday, excluding official Dutch holidays and other days on which the supplier has indicated in advance to be closed.

1.15 Business Hours: the opening hours of the supplier on Business Days, as indicated on the Website.

Article 2: applicability and ranking

2.1 These General Terms and Conditions apply to every offer or quotation from the supplier regarding Services and form an integral part of every Agreement for the delivery thereof. This expressly applies to any future quotations, offers, or Agreements where these General Terms and Conditions have not been provided to the customer again.

2.2. Provisions or conditions set by the customer or other further agreements between the supplier and the customer that deviate from or are not included in these General Terms and Conditions are only binding on the supplier if and insofar as they have been expressly accepted in writing by the supplier.

2.3. Any general (purchase) conditions of the customer are expressly not applicable.

2.4. Provisions relating to specific Services take precedence over general provisions relating to all services in case of discrepancies, if applicable.

2.5. Products and/or services of third parties may be part of the Services. If so, the (general) terms and conditions of the respective third party shall additionally apply to (the use of) those products and/or services, to the exclusion of any conflicting terms from these General Terms and Conditions. The customer can consult and download all additional terms via the Supplementary Terms Overview.

2.6. In the event of discrepancies between the applicable documents, the following ranking applies. Otherwise, the documents are supplementary to each other:

2.6.a. Agreement;

2.6.b. Service Level Agreement (if applicable);

2.6.c. Supplementary terms (if applicable);

2.6.d. General Terms and Conditions;

2.6.e. Data Processing Agreement (if applicable).

2.7. These General Terms and Conditions replace all previously agreed (general) terms and conditions for the provision of Services. This also applies to ongoing Agreements.

Article 3: conclusion of agreement

3.1. customers can request the Services directly from the Website. customers can also request a quotation without obligation. The Agreement is formed at the moment of dispatch of the (whether or not automatically generated) email from the supplier confirming the acceptance of the request or confirming the acceptance of the quotation by the customer. This moment also serves as the commencement date for the Services, unless otherwise agreed upon in writing.

3.2. Contrary to the provision of Article 6:225 paragraph 2 of the Dutch Civil Code, the supplier is not bound by a divergent acceptance by a potential customer of an offer from the supplier.

3.3. supplier is not obliged to accept a request or an acceptance. Grounds for refusal include, but are not limited to:

3.3 a. the absence of necessary information or documents necessary for the conclusion of the Agreement, including at least a copy of a valid, lawful identification document, in case of representation, sufficient evidence of representation authority, such as an extract from the Chamber of Commerce or a validly signed authorization;

  • 3.3 b. errors in the issued quotation;
  • 3.3 c. incapacity of the customer.

3.4. If a request or acceptance is rejected by the supplier, the supplier shall, in principle, inform the customer thereof in writing or electronically within fourteen (14) days after receipt of the request or acceptance. Refusal or no response by the supplier shall never lead to liability for damage, directly or indirectly resulting therefrom.

3.5. If the customer is a consumer, the customer has the right to dissolve the Agreement in writing and free of charge within fourteen (14) days from the moment the Agreement is concluded. The customer can exercise his right of withdrawal by sending an unambiguous statement to the supplier within the cooling-off period indicating this. customers can use the model withdrawal form (available on the Website) for this purpose, but this is not mandatory.

3.6. The right of withdrawal does not apply to Agreements for the provision of Services after the Agreement has been fulfilled, if:

  • 3.6 a. The performance has begun with the explicit prior consent of the customer; and
  • 3.6 b. The customer has declared to waive his right of withdrawal once the supplier has fulfilled the Agreement

Article 4: execution of agreement

4.1. After the conclusion of the Agreement, the supplier will make every effort to fulfill it to the best of its ability and with due care and craftsmanship.

4.2. Delivery deadlines specified by the supplier are always indicative unless explicitly agreed otherwise in writing.

4.3. customer shall provide the supplier with all the support necessary and desirable to enable correct and timely delivery of the Services. In any case, the customer shall provide the supplier with all data and other information indicated by the supplier as necessary, or which the customer reasonably should understand to be necessary for the performance of the Agreement. The period within which the supplier is required to execute the Agreement shall not commence until the supplier has received all requested and necessary data.

4.4. customer shall provide the supplier with all reasonable cooperation in the execution of the Agreement. customer shall provide supplier and supplier’s employees who carry out work at customer’s premises or on customer’s systems in connection with the provision of Services with all necessary support for the performance of their work.

4.5. If the customer knows or suspects that the supplier will need to take certain (additional) measures to fulfill its obligations, the customer shall inform the supplier thereof without delay. This obligation applies, for example, if the customer knows or should foresee that an extraordinary peak in the load on the supplier’s systems will occur, which could likely cause unavailability of the Services. After the warning, the supplier will do everything possible to prevent the unavailability of the Services. Unless expressly agreed otherwise in writing, all reasonable additional costs incurred may be charged to the customer.

4.6. If and to the extent that proper execution of the Agreement requires it, the supplier has the right to have certain work performed by third parties. Any unexpected additional costs associated with this shall be borne by the customer only if agreed in advance in writing. These General Terms and Conditions also apply to the work performed by these third parties as subcontractors under the Agreement, subject to the provisions of Article.

4.7. Any changes to the Agreement and any additional non-agreed work, whether at the request of the customer or as a result of circumstances necessitating a different execution, shall be considered as additional work if they entail additional costs. The procedure outlined in Article 15 (Additional Work) shall apply accordingly.

Article 5: accounts

5.1. If it is part of the Services, the supplier shall provide customer access to an Account after the conclusion of the Agreement by providing login credentials or by allowing the customer to create their login credentials.

5.2. All Accounts and the associated login credentials are strictly confidential and may not be shared with third parties.

5.3. Any action taken through the customer’s Account or an Account created by the customer is deemed to have been done under the responsibility and risk of the customer. If login credentials of an Account are lost or leaked, or if the customer suspects or reasonably should suspect or know that misuse of an Account is occurring, the customer must immediately take all necessary and desirable measures to prevent misuse or cease it.

These measures may include, for example, changing the login credentials or blocking the Account. The customer must also immediately report to the supplier so that the supplier can take any additional measures if necessary.

Article 6: usage rules

6.1. customer is prohibited from violating Dutch or other applicable laws or regulations related to the customer or supplier or infringing upon the rights of others through the use of the Services.

6.2. It is prohibited (whether legal or not) to offer or distribute materials using the Services that:

  • 6.2.a. contain malicious content (such as viruses, malware, or other harmful software) or contain a reference thereto;
  • 6.2.b. infringe upon the rights of third parties (such as intellectual property rights), or are unmistakably defamatory, libelous, offensive, discriminatory, or hateful;
  • 6.2.c. contain information about (or that can be helpful in) violating the rights of third parties, such as hacking tools or explanations about computer crime intended to induce the reader to commit criminal acts rather than defend against them;
  • 6.2.d. constitute an invasion of the privacy of third parties, including, but not limited to, the unauthorized processing of personal data of third parties; or
  • 6.2.e. contain hyperlinks, torrents, or references to (locations of) materials that infringe upon intellectual property rights.

6.3. customer is only allowed to distribute (unsolicited) commercial, charitable, or ideological communication using the Services, subject to applicable laws and regulations.

6.4. The distribution of pornographic materials through the Services is allowed as long as it does not cause any disturbance or other violation of these General Terms and Conditions and only to the extent that this possibility is not excluded in the Agreement.

6.5. customer shall refrain from causing inconvenience or damage to other customers or internet users or the systems or networks of the supplier or other customers. customer is prohibited from initiating processes or programs, whether through the supplier’s systems or not, which the customer knows or reasonably should suspect would hinder or damage the supplier, its customers, or internet users.

6.6. customer shall indemnify the supplier and hold the supplier harmless against any form of claim, complaint, or lawsuit by a third party related to (the content of) the data traffic or the Material posted or distributed by the customer, customer’s customers, or other third parties via the Service.

6.7. If, in the opinion of the supplier, interference, damage, or another danger arises for the functioning of the supplier’s computer systems or network and/or internet service, particularly due to excessive sending of an email or other data, denial-of-service attacks, poorly secured systems, or activities of viruses, Trojans, and similar software, the supplier is entitled to take all measures that it deems reasonably necessary to avert or prevent this danger. supplier may recover the costs reasonably necessary for these measures from the customer, if and to the extent that the customer can be blamed for the cause.

6.8. Unless otherwise agreed in writing, the customer may not use the Services for Applications with Increased Risk.

6.9. If the customer requires any license or other permission from government agencies or third parties for the specific use that the customer gives or intends to give to the Services, the customer must obtain such license or permission on its own. customer guarantees to the supplier that it possesses all licenses and/or permissions necessary for the use of the Services by the customer.

Article 7: notice and takedown

7.1. If a third party notifies the supplier or if the supplier itself observes that certain materials are stored or distributed using the Services that infringe upon the rights of third parties or otherwise act unlawfully or in violation of laws, regulations, or the Agreement, the supplier will promptly inform the customer of the complaint or violation.

7.2. the supplier will allow the customer a reasonable period to respond to the complaint and take necessary measures if required. If the customer fails to do so, the supplier may take all reasonable measures to terminate the violation. This may result in the removal or inaccessibility of certain data or the partial or complete blocking of access to the Services. In urgent cases (such as when the supplier receives reports regarding the potential presence of child pornography), the supplier may intervene immediately without notifying the customer. If the customer is a Consumer, immediate intervention by the supplier is only possible in the form of removal or blocking of unlawful materials. However, in such cases, the supplier’s statutory (suspension) rights remain fully applicable.

7.3. In case of potentially criminal materials, the supplier is entitled to report this. supplier may provide the relevant materials and all relevant information about the customer and third parties (including the customer’s customers) to the competent authorities and perform any other actions requested by these authorities in the context of the investigation.

7.4. supplier is not liable for any damages suffered by the customer, its customers, or end users as a result of the termination of the Services or the removal of materials by the procedure described in this article.

7.5. supplier is authorized to disclose the name, address, and other identifying information of the customer or the relevant end user to a third party complaining that the customer is infringing upon its rights, provided that the applicable legal or jurisprudential requirements are met.

7.6. customer indemnifies the supplier against any claims from third parties based on the assertion that the materials stored or distributed using the Services infringe upon their rights or are otherwise unlawful.

Article 8: domain names and IP addresses

8.1. Where the Services (partly) concern the provision and/or management of domain names and/or IP addresses, the provisions of Article 8 apply.

8.2. In providing or managing domain names, the supplier acts as an intermediary between the customer and the provider of domain name registration and domain name management services.

8.3. The customer hereby expressly authorizes the supplier, as well as the other actions described in Article 8. The supplier does not influence the domain name distribution process. The supplier is not obligated to guarantee the continuity or existence of a registered domain.

8.4. The availability, application, allocation, and possible use of a domain name or IP address are subject to the applicable rules and procedures of the respective registering authorities, such as the Stichting Internet Domeinregistratie Nederland for .nl domain names and Réseaux IP Européens (RIPE) for IP addresses. The supplier does not guarantee that an application will be approved. The relevant authority decides on the allocation.

8.5. The customer must conform to the rules set by registering authorities for the application, allocation, or use of a domain name. The various domains are managed by different, mostly national organizations. All these organizations have their own (general) terms and conditions regarding the registration of the respective domains and sub-level domains, as well as their regulations regarding domain name disputes. If domain names are the subject of the Agreement, the additional terms of, among others, each relevant gTLD (general Top Level Domain) and ccTLD (country code Top Level Domain) shall apply. The relevant additional terms can be consulted via the Overview of Additional Terms.

8.6. The customer can only learn of the fact of registration from the confirmation of the supplier, which states that the requested domain name or IP address has been registered. An invoice for registration fees is not a confirmation of registration.

8.7. The customer shall promptly, but in any case within 5 calendar days, inform the supplier in writing of any changes regarding the data of the domain holder.

When using domain names and IP addresses, the customer must comply with all laws and regulations and all conditions set by registering authorities. The use is entirely the responsibility of the customer. The customer indemnifies and holds the supplier harmless for all damage related to (the use of) a domain name or IP address on behalf of or by the customer. The supplier is not liable for the loss by the customer of their right(s) to a domain name (for example, in the event of termination by the customer itself or due to decisions in domain name disputes) or for the fact that the domain name is requested and/or obtained by a third party in the interim, and the customer has no right to a replacement domain name or refund in those cases, except in case of intent or gross negligence by the supplier.

8.8. Notwithstanding Article 8.2, the supplier has the right to make the domain name or IP address inaccessible or unusable, or (if applicable) to place it in its name, when the customer demonstrably fails to fulfill the Agreement, solely after a reasonable period for performance outlined in a written notice of default.

8.9. The IP addresses provided to the customer remain under the management of the supplier or its suppliers and may, unless otherwise agreed in writing, not be transferred upon termination of the Agreement. Multiple customers of the supplier can operate under a certain IP address. The supplier has the right at all times to change the IP address or assign a different address to the customer.

8.10. In the event of termination of the Agreement due to default by the customer, the supplier, despite its intermediary role, is entitled to terminate a domain name of the customer, without any liability for resulting damages.

Article 9: SSL/TLS certificates

9.1. Where the Services (partly) concern the provision and/or management of SSL/TLS certificates, the provisions of Article 9 apply.

9.2. The application and allocation procedure of SSL/TLS certificates are subject to the rules and procedures of the certificate authority issuing the SSL/TLS certificate. The respective certificate authority decides on the allocation of the SSL/TLS certificate and will perform necessary checks. The supplier acts merely as an intermediary in the application process and does not guarantee that an application will be approved.

9.3. The SSL/TLS certificate is valid for the agreed-upon period unless revoked prematurely. The supplier (despite its intermediary role) and the respective supplier may immediately revoke the SSL/TLS certificate if:

  • 9.3.a. it is found that the customer provided incorrect information for obtaining the SSL/TLS certificate; or
  • 9.3.b. the reliability of the SSL/TLS certificate is compromised according to the judgment of the supplier and/or the respective supplier.
  • 9.3.c. The customer must comply with all applicable laws and regulations and all conditions set by the certificate authority when using the SSL/TLS certificate.

9.4. The customer must comply with all laws and regulations and all conditions set by the certificate authority when using the SSL/TLS certificate. The supplier will refer to these conditions during the ordering process.

9.5. If the SSL/TLS certificate is revoked, the customer has no right to a replacement SSL/TLS certificate or refund of the SSL/TLS certificate costs by the supplier unless the revocation is due to an attributable shortcoming of the supplier. In such a case, the supplier will provide a new SSL/TLS certificate to replace it for the remaining period of the original SSL/TLS certificate. In other cases, the customer may need to rely on the conditions of the respective certificate authority.

9.6. Unless otherwise agreed in writing, the supplier will reasonably endeavor to inform the customer before the SSL/TLS certificate expires and needs to be renewed. However, it remains the sole responsibility of the customer to timely renew SSL/TLS certificates.

Article 10: installation and configuration of software

10.1. Unless otherwise agreed in writing, the customer is responsible for the installation and configuration of the Services. The supplier may charge the customer for any support provided in this regard.

10.2. Unless provided otherwise by the nature of the Service (for example, in the case of non-managed virtual private servers), the customer does not have the right to make independent modifications or install software within Services managed by the supplier (such as but not limited to online workstations and virtual private servers) without written permission from the supplier. If the Services (partly) concern the installation and/or configuration of software, Article 10.3 applies.

10.3. If the customer wishes to modify the software independently, this is entirely at the customer’s own risk and responsibility, unless the customer has notified the desired modification to the supplier in advance and the supplier has approved it in writing. The supplier may impose conditions on this approval.

Article 11: dedicated hosting

11.1. If, and to the extent that, the Services pertain to dedicated hosting, the provisions of this Article 11 shall apply.

11.2. In the case of dedicated hosting, the supplier provides the customer with dedicated hardware. Therefore, the storage space and capacity of the hardware are not shared with other customers of the supplier. The hardware is and remains the property of the supplier.

11.3. The customer does not have the right to access the server room unless explicitly responsible for the installation and/or maintenance of the hardware based on the Agreement, and access is necessary in light thereof. Access to the server rooms is subject to the provisions as outlined in Article 13.

11.4. The supplier has the right to allocate different hardware to the customer, provided that the replacement hardware reasonably meets the requirements applicable to the original hardware. In such a case, the supplier will, except in cases of urgency, make a relocation plan in advance with the customer.

Article 12: resale of services

12.1. Unless the customer is a Consumer and if the nature of a particular Service indicates that it is intended for resale and/or to the extent that the Agreement explicitly pertains to the resale of Services, the provisions of this Article 14 shall apply.

12.2. The customer is allowed to resell the Services. The customer may only do so in combination with or as part of the customer’s products or services without explicitly disclosing the name of the supplier as the supplier or subcontractor (hereinafter: “White-Label” resale) unless otherwise agreed in writing. The customer indemnifies the supplier and holds the supplier harmless from all claims by its customers. The supplier may also take full action in case of violations of these General Terms and Conditions by such customers.

12.3. Unless otherwise agreed in writing, in the case of reselling, the customer acts in its name and at its own expense and risk. The customer expressly is not allowed to enter into agreements on behalf of or for the account of the supplier or to give the impression that it acts as an agent or representative of the supplier.

12.4. In the case of resale, the customer is responsible for providing support regarding the resold Services of the supplier to its customers.

12.5. The customer must impose on its customers at least the same obligations as those imposed by the supplier regarding the Services. The supplier may require the customer to provide evidence thereof. In the case of the resale of Services in the context of domain name registration, if requested by the supplier, the customer must provide insight into the order confirmations regarding the registration of domain names for the customers of the customer.

12.6. The failure or untimely payment by customers to the customer does not relieve the customer of its payment obligations to the supplier.

12.7. If it is agreed that the resale will take place in a manner other than White-Label, the customer may only communicate in a business-like manner that it uses the Services and may not use trade names, brand names, logos, or other distinguishing marks of the supplier without explicit permission. The customer will strictly comply with any instructions from the supplier regarding the use of such distinguishing marks.

12.8. The supplier will primarily contact customers of the customer through the customer. However, in urgent cases, such as (threatened) damage or inconvenience to third parties due to activities of the respective customer, the supplier has the right to contact the customers of the customer directly, unless otherwise agreed in writing.

12.9. The customer is fully liable to the supplier at all times for the actions or omissions of its customers via the Services provided by the supplier. The customer will indemnify the supplier for any claims from third parties in this regard.

12.10. In the event of termination or dissolution of the Agreement due to the customer’s default, the supplier has the right to contact the customers of the customer and make an offer to continue the Services itself or to continue the Services through another reseller. Upon the first request by the supplier, the customer shall provide all necessary (contact) information for this purpose.

Article 13: additional work

13.1. The customer may request the supplier at any time to perform work that falls outside the Agreement (i.e., requests for “additional work”). However, the supplier is not obligated to accept such requests.

13.2. In the case of additional work, the supplier will inform the customer in advance about the associated (estimated) costs and will only carry out the additional work after the customer’s approval. However, this does not apply to additional work that is necessary in the context of the already agreed Services. Such additional work may be carried out without the customer’s consent based on a time and material basis.

13.3. When performing additional work, the supplier will always apply the agreed rates, or in the absence thereof, the customary rates. The supplier may require an additional agreement to be concluded for the execution of the additional work.

Article 14: storage and data limits

14.1. The supplier may impose a maximum limit on the capacity (such as data traffic volume, processing capacity, memory, storage, or power) that the customer may or can use within the scope of the Services.

14.2. In case of exceeding this limit, the supplier is entitled to charge additional costs or, after a written warning, restrict or reduce the use of the Services to the permitted capacity.

14.3. If a specific limit or capacity applies to the Services, it can be adjusted upwards or downwards in consultation with the supplier. An increase or upgrade of the Services can be implemented immediately, while a decrease or downgrade can only be made effective on the date of the first renewal of the Agreement and thereafter at the end of each month, with a notification period of one (1) month.

14.4. Any data traffic credit granted to the customer is non-transferable to the following month, another agreement, or another customer of the supplier.

14.5. The supplier is not liable for the consequences of being unable to send, receive, store, or modify data or for the malfunctioning of the Services if the customer exceeds an agreed limit (such as data traffic volume, processing capacity, memory, storage, or power).

Article 15: fair use

15.1. If no limit is set for the Services regarding capacity (such as data traffic volume, processing capacity, memory, storage, or power), a “fair use” policy applies to the respective Services.

15.2. The supplier may provide further details on the fair use policy, which will be made available to the customer in writing or can be accessed via the Website. The supplier reserves the right to amend or supplement the policy at any time and will notify the customer in writing in such cases.

15.3. If an explicitly defined fair use policy is absent, it shall be understood that the customer may use up to twice the capacity used by other customers of the supplier who subscribe to the same or similar Services under comparable circumstances.

15.4. If the use of the Services exceeds the fair use policy, the supplier is entitled to limit or block the Services or offer the customer an alternative service. The supplier is not responsible for any non-functioning or improper functioning of the Services resulting from such exceeding use.

Article 16: availability, maintenance, and support

16.1. The supplier shall endeavor to achieve good quality and uninterrupted availability of the Services and associated systems and networks, as well as access to data stored by the customer through them. However, the supplier does not provide guarantees regarding quality or availability unless otherwise agreed upon in the quotation through a designated Service Level Agreement (SLA).

16.2. Performing maintenance work, whether or not as part of the provided Services, may result in temporary or limited use of the Services. If the supplier anticipates that certain maintenance will result in full or partial unavailability, the supplier will endeavor to perform the work at times when the use of the Services is limited.

16.3. The supplier will make efforts to announce planned maintenance work, whether or not as part of the provided Services, at least two Working Days in advance. However, emergency maintenance can be performed at any time, even without prior notice to the customer.

16.4. The supplier will make itself available for a reasonable level of remote customer support during Office Hours unless otherwise specified in the applicable SLA. customer support requests that cannot be easily handled, at the discretion of the supplier, will be considered “additional work.” Therefore, the procedure outlined in Article 15 applies to these requests.

16.5. The supplier endeavors to respond to each support request as quickly as possible, but does not provide guarantees about this unless otherwise agreed upon in the Service Level Agreement (SLA).

16.6. If the Services involve software maintenance by the supplier, the provisions of Articles 18.7 to 18.9 shall apply.

16.7. The supplier will endeavor to keep the software used in the Service up-to-date. However, the supplier is dependent on its supplier(s) in this regard. The supplier is entitled not to install certain updates or patches if it deems that it would not benefit the proper service provision.

16.8. The supplier will endeavor to periodically adjust the software to improve functionality and correct errors. For new functionality or changes that may significantly alter the operation of the software, the supplier will make efforts to inform the customer in advance.

16.9. The supplier will endeavor to incorporate changes and new functionality requested by the customer into the software. However, the supplier is always entitled to refuse such a request if, in its opinion, it is not feasible or may impede the proper functioning, manageability, or availability of the software.

Article 17: backup

17.1. Unless otherwise agreed upon, the supplier is not obligated to create backup copies. The supplier may choose to create backups in case of a malfunction on the supplier’s side. Additionally, the customer may agree with the supplier to receive services for the creation and provision of backups, subject to payment. Only in that case, the other provisions of this article apply.

17.2. All efforts provided by the supplier in the context of backups for the customer and at the customer’s request are provided for an additional fee. Unless otherwise agreed upon by the Parties, the fee is calculated based on the supplier’s current hourly rate.

17.3. The customer is always responsible for the accuracy of the data and any restoration (and the preceding verification) of the backups. The backups may be destroyed at any time after termination of the Agreement. It is always the customer’s responsibility to request a backup copy upon termination.

Article 18: intellectual property

18.1. All Intellectual Property Rights to all Materials developed or provided by the supplier in the context of the Agreement shall exclusively belong to the supplier or its licensors.

18.2. The customer shall only acquire the rights of use and powers explicitly granted in these General Terms and Conditions, the Agreement, or otherwise explicitly granted in writing. The customer shall not reproduce or disclose these Materials, except where it is unmistakably omitted to grant such right to the customer expressly. However, the delivery of the source code of Materials is only mandatory if explicitly agreed upon or as required by mandatory law.

18.3. Unless explicitly agreed otherwise in writing, the customer is not allowed to remove or modify any indication regarding Intellectual Property Rights from the Materials of the supplier or its licensors, including indications regarding the confidential nature and secrecy of the supplier’s or its licensors’ Materials.

18.4. The supplier is allowed to implement technical measures to protect its Materials. If the supplier has secured these Materials through technical protection, the customer is not allowed to remove or bypass this protection, except where and to the extent that the law mandatorily provides otherwise.

Article 19: customer data

19.1. All rights to Customer Data, including any Intellectual Property Rights therein, shall belong to the customer. The supplier shall not assert any ownership claims thereto.

19.2. The customer hereby grants a limited right of use to the supplier to use the customer Data during the term of the Agreement to the extent necessary for the provision of the Services.

19.3. Unless otherwise agreed in writing, the supplier is not obliged to upload and/or migrate Customer Data as part of the Services. The supplier may charge separate fees to the customer for support in this regard.

19.4. If and to the extent that the customer Data consists of personal data, the agreements laid down in Appendix 1 shall apply.

19.5. Upon termination of the Agreement, regardless of the reason for termination, the supplier shall destroy or delete the customer Data as soon as possible, subject to the provisions of Article 28 (Exit Arrangements).

Article 20: prices

20.1. Unless expressly stated otherwise, all prices mentioned by the supplier are exclusive of turnover tax and other levies imposed by the government.

20.2. If a price is based on data provided by the customer and this data proves to be incorrect, the supplier has the right to adjust the prices accordingly, even after the Agreement has already been concluded.

20.3. The supplier is entitled to increase the prices used in this Agreement annually by a maximum of 5% or based on the relevant price index of the CBS, without giving the customer the right to terminate the Agreement. Prices may also be increased by the supplier at any time if the rates of suppliers, including but not limited to suppliers of electricity, electronic communication services, domain name registrations, IP addresses, data centers, software, and (public) cloud solutions, rise, without giving the customer the right to terminate the Agreement.

20.4. Notwithstanding the preceding paragraphs of this article, if the customer is a Consumer, he has the right to terminate the Agreement if the prices are increased within three months after the conclusion of the Agreement.

For price changes that do not occur under Article 22.3, the same conditions and procedures apply as for changes to the Services and these General Terms and Conditions. If the supplier wishes to reduce the current prices, the supplier is entitled to implement this reduction immediately, without the possibility of termination by the customer.

Article 21: payment

21.1. The supplier will invoice the amounts owed by the customer. The supplier may issue electronic invoices. The supplier has the right to invoice periodic amounts due before the provision of the Services.

21.2. The payment term of an invoice is 14 days after the invoice date unless otherwise agreed upon in writing.

21.3. If the customer has not paid in full after the payment term, they are automatically in default without the need for notice of default.

21.4. Without prejudice to the above, all costs associated with collecting outstanding claims – both judicial and extrajudicial (including costs for lawyers, bailiffs, and collection agencies) – shall be borne by the customer without the need for notice of default.

21.5. customer is not allowed to invoke suspension or setoff.

21.6. The provisions contained in Articles 23.3 to 23.5 do not apply if the customer is a Consumer.

21.7. If the customer is in default, the following consequences apply:

  • 21.7.a. statutory interest is due on the outstanding amount;
  • 21.7.b. The websites and other Materials hosted for the customer may be made inaccessible without further warning until the outstanding amounts, interest, and the like are paid.

21.8. All claims of the supplier are immediately due and payable if the customer is declared bankrupt, applies for or is granted a suspension of payments, ceases its activities, or its business is liquidated.

Article 22: liability

22.1. supplier is not liable for the establishment or performance of the Agreement except in the cases mentioned below, and up to the limits stated therein.

22.2. The total liability of the supplier for direct damages suffered by the customer as a result of an attributable failure in the performance by supplier of its obligations under the Agreement, expressly including any failure to fulfill a warranty obligation agreed with customer, or due to wrongful acts by supplier, 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 fees (excluding VAT) paid by customer under the Agreement in the last six (6) months. In no event shall the total compensation for direct damages exceed ten thousand (10,000) euros (excluding VAT).

22.3. supplier’s liability for attributable failure in the performance of the Agreement arises only if the customer promptly and properly notifies the supplier in writing, setting a reasonable period for remedying the default, and the supplier continues to fail to fulfill its obligations after that period. The notice of default must contain the most detailed possible description of the default so that the supplier can respond adequately. The notice of default must be received by the supplier within 30 days after the discovery of the damage.

22.4. supplier expressly disclaims liability for indirect damages, including but not limited to consequential damages, loss of profits, reputational damage, missed savings, and damages due to business interruption.

22.5. The exclusions and limitations of liability provided for in Article 24 shall not apply if and to the extent that the damage results from intent or willful recklessness of the management of the supplier.

22.6. Any liability limitation included in these General Terms and Conditions does not apply to Consumers. The provisions regarding liability from the law apply to Consumers.

22.7. customer is liable to the supplier for damages caused by an attributable fault or shortcoming. the customer indemnifies the supplier against claims regarding non-compliance with the Agreement in the use of the Services by or with the permission of the customer. This indemnification also applies to persons who are not employees of the customer but have nevertheless used the Services under the responsibility or with the permission of the customer.

Article 23: force majeure

23.1. Supplier is not obliged to fulfill the Agreement if the fulfillment is hindered by force majeure. Any liquidity problems on the part of the customer do not qualify as force majeure.

23.2. Force majeure of the supplier shall be understood to mean any circumstance beyond the control of the supplier that wholly or partially prevents the fulfillment of its obligations towards the customer or which makes the fulfillment of such obligations reasonably impossible for the supplier, regardless of whether such circumstance could have been foreseen at the time of entering into the Agreement. Such circumstances shall include, but are not limited to:

  • 23.2.a. emergencies (such as extreme weather conditions, fire, and lightning strikes)
  • 23.2.b. disruptions in the telecommunications infrastructure internet beyond the control of the supplier, including, for example, disruptions in the registers of IANA, RIPE, or SIDN, or (D)DoS attacks;
  • 23.2.c. a disruption in the (power) infrastructure of third parties outside the data center;
  • 23.2.d. failures of suppliers of the supplier, which the supplier could not foresee and for which the supplier cannot hold its supplier liable, for example, because the relevant supplier also experienced force majeure;
  • 23.2.e. defects in goods, equipment, software, or Materials the use of which the customer has prescribed to the supplier;
  • 23.2.f. government measures;
    23.2.g. unavailability of personnel (due to illness or otherwise);
  • 23.2.h. general transportation problems;
  • 23.2.i. natural disasters; and
  • 23.2.j. strikes, wars, terrorist attacks, and civil unrest.

23.3. In the event of force majeure, the customer is not entitled to any (damage) compensation.

23.4. If a force majeure situation lasts longer than three months, each of the Parties shall have the right to terminate the agreement in writing, without any obligation to pay damages to the other Party.

Article 24: confidentiality

24.1. Parties shall treat information they provide to each other before, during, or after the execution of the Agreement as confidential when this information is marked as confidential or when the receiving Party knows or reasonably should suspect that the information was intended to be confidential. Parties shall also impose this obligation on their employees as well as on third parties engaged by them to execute the Agreement.

24.2. The receiving Party shall ensure that confidential information receives the same level of protection against unauthorized access or use as its confidential information, but at least a reasonable level of protection.

24.3. The obligation to maintain the confidentiality of confidential information does not apply if and insofar as the receiving Party can prove that such information:

  • 24.3.a. was already in the possession of the receiving Party before the date of disclosure;
  • 24.3.b. is obtainable from a third party without such third party violating any confidentiality obligation towards the disclosing Party by the disclosure;
  • 24.3.c. is available from public sources, such as newspapers, patent databases, publicly accessible websites or services;
  • 24.3.d. is independently developed by the receiving Party without using any information from the disclosing Party.

24.4. If a Party receives an order to disclose confidential information from a competent authority, it has the right to comply with the order. However, the disclosing Party shall be informed of the order as soon as possible (in advance), unless prohibited. If the disclosing Party indicates that it wants to take measures against the order (for example, through summary proceedings), the receiving Party shall refrain from disclosure until a decision has been made, to the extent legally possible.

24.5. The obligation of confidentiality shall continue to exist after termination of the Agreement for any reason whatsoever, for as long as the disclosing Party can reasonably claim the confidential nature of the information.

Article 25: Duration and Termination

25.1. Parties are not allowed to terminate the Agreement prematurely, except in cases explicitly provided for in these General Terms and Conditions or other parts of the Agreement.

25.2. The Agreement shall be automatically and silently renewed after each expiry for additional periods equal to the initial duration, unless one (1) month before expiry, one Party informs the other Party in writing of its desire not to renew the Agreement.

25.3. supplier has the right to suspend the Agreement immediately (in whole or in part) or to terminate or dissolve the Agreement (in whole or in part) if:

  • 25.3.a. customer fails to fulfill the obligations under the Agreement or fails to do so promptly, and the deficiencies are not rectified within a reasonable period after notice of default. However, a prior notice of default is not necessary in cases where default occurs by operation of law;
  • 25.3.b. customer files for bankruptcy or is declared bankrupt applies for a moratorium on payments or is granted a moratorium on payments, the business of the customer is liquidated, or its business activities are discontinued;
  • 25.3.c. due to delay on the part of the customer, it is no longer reasonable for the supplier to fulfill the Agreement under the originally agreed conditions; or
  • 25.3.d. circumstances arise that make the performance of the Agreement impossible or that make it unreasonable to maintain the Agreement unchanged.

25.4. The right to suspend in the above cases applies to all Agreements concluded with the customer simultaneously, even if the customer is in default concerning only one Agreement, and without prejudice to the supplier’s right to compensation for damages, lost profits, and interest.

25.5. In case of termination of the Agreement, amounts invoiced for services rendered remain due without any obligation to undo. In case of termination by the customer, the customer may only terminate that part of the Agreement that has not yet been performed by the supplier.

25.6. If the supplier suspends the performance of obligations, it retains its rights under the law and the Agreement, including the right to payment for the services that have been suspended. This does not apply if the customer is a Consumer. In that case, statutory suspension rights apply.

25.7. If termination is attributable to the customer, the supplier is entitled to compensation for the direct and indirect damage caused thereby.

25.8. If the Agreement is terminated or dissolved, the supplier’s claims against the customer become immediately due and payable.

25.9. If the customer can deactivate, disable, or delete certain (parts of) services themselves, the customer is responsible for doing so before the date on which the Agreement ends. If a customer fails to do so, a supplier may charge fees for keeping the services available, and the Agreement is deemed to be extended for the period during which the services are in use. Only upon explicit request from the customer will the supplier deactivate, disable, or delete the relevant services.

Article 26: exit arrangements

26.1. In the event of termination of the Agreement, the supplier shall endeavor to provide reasonable assistance with the migration or transition to another service or another ICT supplier by unlocking relevant data and providing access to the parts of the respective Service(s) to be migrated. Any associated costs shall be fully borne by the customer. supplier shall not be responsible for the actual transition or migration to the new supplier. This remains the responsibility of the customer.

26.2. If the customer wishes to use the exit support referred to in the preceding clause, the customer must submit a written request to the supplier no later than the date on which the Agreement ends.

26.3. supplier is only obliged to provide the aforementioned assistance with the migration or transition of the customer if all amounts due from the customer and any other obligations under the Agreement have been fully paid or fulfilled.

26.4. customer does not have access to any configurations made by the supplier. In no event shall the supplier provide the configurations if the Agreement is terminated. These configurations will be erased by the supplier. customer is not entitled to a refund of installation and configuration costs.

26.5. The erasure of data stored for customers is done with special precautions to make the erasure irreversible to the extent reasonably possible.

Article 27: amendment

27.1. supplier reserves the right to amend or supplement the Services and these General Terms and Conditions. Changes also apply to already concluded Agreements with a notice period of one (1) month after the announcement of the change. Changes shall be announced in writing.

27.2. If the customer does not wish to accept a change, the customer may object in writing within fourteen (14) days of the announcement. If the supplier decides to implement the change despite the customer’s objection,

27.3. customer may terminate the Agreement in writing up to and no later than the date on which the change takes effect. The procedure described above does not apply to minor changes, changes required by law, and changes favorable to customers. Such changes may be implemented unilaterally by the supplier with immediate effect.

Article 28: choice of law and forum

28.1. Dutch law applies to the Agreement. If the customer is a Consumer, he also benefits from the protection of the mandatory provisions of the law applicable in the country where the Consumer has his habitual residence.

28.2. To the extent permitted by mandatory law, all disputes arising out of or in connection with the Agreement shall be submitted to the competent Dutch court in the district where the supplier is established.

Article 29: Miscellaneous Provisions

29.1. If any provision of the Agreement is found to be void, this shall not affect the validity of the entire agreement. In such a case, the Parties shall establish new provision(s) to replace the void provision(s), which provision(s) shall, as far as legally possible, reflect the intention of the original Agreement and General Terms and Conditions.

29.2. Information and announcements, including price indications, on the Website are subject to programming and typographical errors. In case of any inconsistency between the Website and the Agreement, the Agreement shall prevail.

29.3. The log files and other electronic records of the supplier constitute full proof of the supplier’s claims, and the version of any (electronic) communication received or stored by the supplier shall be deemed authentic unless proven otherwise by the customer. This provision does not apply if the customer is a Consumer.

29.4. The Parties shall promptly inform each other in writing of any changes to their name, postal address, email address, telephone number, and if requested, bank or giro number.

29.5. Where reference is made in the Agreement to “in writing”, this shall also include email and, if the Services include access to a customer portal through which the Parties can exchange messages, that customer portal, provided that the identity of the sender and the integrity of the email messages or messages within the customer portal are sufficiently established.

29.6. All claims of the customer under the Agreement shall expire – except as provided by mandatory law – after one year from the day on which the obligations under the existing Agreement between the Parties became due and payable. This provision does not affect the regular limitation period for the claims of the supplier.

29.7. 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 consent is not required in the case of a business takeover or acquisition of the majority of the shares of the respective Party.

Attachment 1 | processing of personal data

This attachment is inseparably linked to the Agreement concluded between the Parties. All terms written with an initial capital letter have the meaning as defined in the General Terms and Conditions, both in singular and plural. However, the supplier will be referred to as the “Processor” and the customer as the “Data Controller”, regardless of whether the customer itself is a processor towards its customers. If definitions are used that correspond to the definitions in the General Data Protection Regulation (hereinafter: “GDPR”), these definitions shall have the same meaning. The content of this attachment shall hereinafter be referred to as the “Data Processing Agreement”.

Article 1: purposes of processing

1.1. The Processor undertakes, under the terms of this Data Processing Agreement, to process personal data on behalf of the Data Controller. Processing shall only take place in the context of the performance of the Agreement, as well as those purposes that are reasonably related thereto or determined with further consent.

1.2. Processor endeavors to process the personal data provided by or on behalf of the Data Controller carefully in the context of the aforementioned activities.

1.3. Processor primarily provides hosting services. Processing personal data is incidental to this. In principle, the Processor will not access the personal data. This includes the Data Controller storing data on the Processor’s systems. As a result, the Processor automatically processes all categories of personal data and all categories of data subjects stored by the Data Controller via the hosting services in many cases.

Article 2: processor’s obligations

2.1. Processor processes data on behalf of the Data Controller for the purposes referred to in Article 1. The processor shall not process the personal data for its purposes.

2.2. The processor shall process personal data by the GDPR.

2.3. The processor shall immediately notify the Data Controller if, in its opinion, instructions are contrary to applicable legislation regarding the processing of personal data or are otherwise unreasonable.

2.4. The processor shall, to the extent reasonably within its control, assist the Data Controller in fulfilling its legal obligations. This includes assisting with fulfilling its obligations under Articles 32 to 36 of the GDPR, such as assisting with conducting a Data Protection Impact Assessment (“DPIA”) and prior consultation for processing involving high risks. The processor may charge the Data Controller for the costs incurred for such assistance.

2.5. Data Controller guarantees that the content, use, and assignment of the processing of personal data as referred to in the Data Processing Agreement are not unlawful and do not infringe any third-party rights, and indemnifies Processor against all claims related thereto.

Article 3: transfer of personal data

3.1. Processors may process personal data in countries within the European Economic Area (“EEA”). Additionally, the Processor may transfer personal data to a country outside the EEA, provided that the country ensures an adequate level of protection and the Processor complies with its other obligations under this Data Processing Agreement and the GDPR.

3.2. The processor shall promptly inform the Data Controller upon request of the country or countries involved. Processor warrants that countries outside the EEA provide an adequate level of protection.

Article 4: engagement of sub-processors

4.1. In the context of the Data Processing Agreement, the Processor may use subprocessors.

4.2. The subprocessors engaged by the Processor at the time of entering into this Data Processing Agreement are listed in Annex 1A. The Data Controller has the right to object in writing, within two weeks after receipt of notification from the Processor, to any new or modified subprocessor(s). If the Data Controller objects, the Parties shall enter into discussions to find a solution.

4.3. Annex 1A also includes the identity and location of the subprocessors already engaged.

4.4. The processor shall impose equivalent obligations on the engaged subprocessors as agreed between the Data Controller and Processor.

Article 5: confidentiality

5.1. The processor is obliged to maintain the confidentiality of the personal data provided by the Data Controller. Processor ensures that persons authorized to process the personal data are contractually obligated to maintain the confidentiality of the personal data they become aware of.

Article 6: notification of data breaches

6.1. The Processor shall notify the Data Controller without undue delay of any breach related to personal data as referred to in Article 4(12) of the GDPR (“Data Breach“). Processor shall take reasonable measures to limit the consequences of the Data Breach and prevent further and future Data Breaches.

6.2. The processor shall assist the Data Controller, taking into account the nature of the processing and the information available to it, regarding (new developments regarding) the Data Breach. The notification to the Data Controller shall include, to the extent known at that time:

  • 6.2.a. The Nature of the Data Breach;
  • 6.2.b. the (expected) consequences of the Data Breach;
  • 6.2.c. which categories of personal data are affected by the Data Breach;
  • 6.2.d. whether and how the relevant personal data were secured;
  • 6.2.e. the (proposed) measures to limit the consequences of the Data Breach or prevent further Data Breaches;
  • 6.2.f. the categories of data subjects;
  • 6.2.g. the (estimated) number of data subjects; and
  • 6.2.h. any alternative contact details for follow-up of the notification.

Article 7: data subject rights

7.1. In the event a data subject directs a request to exercise his/her legal rights under Chapter III of the GDPR to the Processor, the Processor shall forward the request to the Data Controller and inform the data subject accordingly. The Data Controller shall then independently handle the request further.

7.2. In the event a data subject directs a request to exercise one of his/her legal rights to the Data Controller, the Processor shall, if requested by the Data Controller, cooperate to the extent possible and reasonable. The processor may charge reasonable costs to the Data Controller for this cooperation.

Article 8: security measures

8.1. Processor shall endeavor to implement appropriate technical and organizational measures to secure the personal data processed on behalf of the Data Controller against loss or any form of unlawful processing.

8.2. Upon request, the Processor shall provide an overview of the security measures. The processor has implemented the following measures, among others:

  • 8.2.a. Logical access control, using passwords or keys.
  • 8.2.b. Physical measures for access control.

8.3. Processor does not warrant that the security will be effective under all circumstances. Processors shall strive to ensure that the security meets a level that, considering the state of the art, the sensitivity of the personal data, and the costs associated with implementing the security, is not unreasonable.

8.4. The Data Controller shall only provide personal data to the Processor for processing if it has ensured that the required security measures have been taken. The Data Controller is responsible for compliance with the agreed measures between the Parties.

Article 9: audit

9.1. The Data Controller has the right to have the compliance of the Processor’s obligations under this Data Processing Agreement audited. The Data Controller may have this audited once a year by an independent third party bound by confidentiality if there is a reasonable, communicated, and substantiated suspicion of a breach of this Data Processing Agreement.

9.2. If an audit by an independent third party has already been conducted in a year, Processor may, contrary to the provisions of the previous clause, suffice with granting access to relevant parts of the report, if another audit of compliance with Processor’s obligations under the Data Processing Agreement is requested within the same year.

9.3. Processor and Data Controller jointly decide on the date, time, and scope of the audit.

9.4. Reasonable costs for cooperating with the audit shall be borne by the Data Controller, provided that the costs for hiring an independent third party shall always be borne by the Data Controller.

9.5. The audit and its results shall be treated confidentially by the Data Controller.

Article 10: termination of the data processing agreement

10.1. Upon termination of the Data Processing Agreement, the Processor shall, without undue delay, at the request and expense of the Data Controller:

  • 10.1.a. return the personal data as stored on the Processor’s (managed) infrastructure to the Data Controller; or
  • 10.1.b. erase the personal data as soon as possible.

Appendix 1A | specification of engaged third party(ies)

Overview of Engaged Third Party(ies) and Their Processing Location:

Third Party(ies)

Processing Location

Openprovider
Infrastructure provisioning

Netherlands

Exact Online
Provisioning of financial accounting system

Netherlands