The terms and conditions below can be provided on paper and/or via e-mail on request.
Date: 1st of August 2010
General Terms and Conditions concerning Hosting: These General Terms and Conditions, all of the provisions set out below
Vellance B.V.: ‘Vellance B.V.’ is taken to mean the organisation operating under the name ‘Vellance B.V.’ with its registered office in Amsterdam under Chamber of Commerce number 3329 6627.
The Buyer: A private/natural or corporate legal person with whom Vellance B.V. enters into, intends to enter into or has entered into an Agreement.
Quotation: Any offer Vellance B.V makes the Buyer based on any provision of products, Services or combination thereof whatsoever by Vellance B.V. to the Buyer
Agreement: Any contractual relationship between Vellance B.V and the Buyer that is based on any provision of products, Services or combination thereof whatsoever by Vellance B.V. to the Buyer.
Services/service: The registration of Domain Names in cooperation with the Netherlands Internet Domain Registration Foundation (Stichting Internet Domeinregistratie Nederland) and other competent registration authorities. The provision of access to the internet by Vellance B.V., the provision of hosting services and the management of Vellance B.V.’s servers on which information is stored electronically, accessed, edited or transported, the provision of space for the placement of one of more servers, the provision of the necessary Software, the design, development and maintenance of websites and other related services, as explicitly stated in the Agreement.
Software: The Software that is provided by Vellance B.V. to the Buyer or is otherwise provided in the context of Vellance B.V.’s Services.
Password: The code comprising a number and/or letter combination that in combination with the Username gives the Buyer access to Vellance B.V.’s Services.
Username: The identification code provided to the Buyer by Vellance B.V., comprising a combination of numbers and letters, which in combination with the Password gives the Buyer access to Vellance B.V.’s Services.
IP address: A unique number comprising a series of digits that can be used on the Internet for the unique identification of machines and/or a location.
Domain name: A unique name that can be used to name a website or other internet-related service or facility comprising a unique name chosen by the Buyer, within the options given to this end, followed by a designation for a country, region or type, or other unique domain type, separated by a dot.
Intellectual property rights: Rights to results of human ingenuity, including but not limited to patent rights, design rights, copyrights, trademark rights, trade name rights, plant breeders’ rights, topography rights and chip rights.
1. General/applicability of terms and conditions
a. These General Terms and Conditions apply to every legal relationship between Vellance B.V. and the Buyer, including negotiations, Quotations and Agreements between Vellance B.V. and the Buyer.
b. Stipulations that deviate from the provisions of the General Terms and Conditions will only apply if and insofar as they have been effected in writing in consultation with Vellance B.V. and approved by Vellance B.V. as such.
c. General or specific terms or conditions applied by the Buyer are expressly not applicable.
d. In all cases where an Agreement with the Buyer ends, these General Terms and Conditions will continue to govern the relationships between the parties insofar as this is necessary for the Agreement to be properly terminated.
e. Vellance B.V. is at all times entitled to unilaterally change these General Terms and Conditions. Changes also apply to Agreements already concluded. Changes will take effect one (1) month after they have been announced by means of written notice. If the Buyer does not wish to accept changes to the General Terms and Conditions, it will be entitled, until the effective date of the changes, to terminate the Agreement by registered post as of the date on which the changed terms and conditions enter into effect. After the effective date, the Buyer will be considered to have tacitly agreed to the changes.
f. In the event of conflicts between the Agreement and the General Terms and Conditions, the provisions of the Agreement will prevail.
2. Offers and the conclusion of an Agreement
a. All quotations provided by Vellance B.V. are free of obligation, unless the quotation explicitly provides otherwise. Vellance B.V. is entitled to withdraw any quotations made. Unless stated otherwise in the quotation, quotations will be valid for a maximum of 30 days, calculated from the date stated on the quotation.
b. The Agreement will be effected as soon as Vellance B.V. receives the Agreement, signed by Vellance B.V. and the Buyer, including the necessary completed Registration Forms, by post or fax.
c. If the Buyer is a legal person, the Agreement and/or Registration Forms must be returned together with an extract, no more than 6 months old, from the relevant register of the Chamber of Commerce. The representative of the legal person or the person signing the Agreement must prove his or her authority to sign upon Vellance B.V.’s request.
d. Delivery dates given by Vellance B.V. will only be provided by way of information and will not be binding, unless this has been explicitly agreed in writing. Delays to the execution of the order will never give cause for compensation for damages or termination of the Agreement.
e. Vellance B.V. may break off negotiations concerning an Agreement yet to be concluded at any time.
f. In the event that negotiations are terminated, under no circumstances may the Buyer demand further negotiations or compensation for any costs incurred and/or any damage suffered, regardless of the nature of the damage and regardless of the damage amount.
3. Duration of the Agreement
a. The duration of an Agreement for a Domain Registration depends on the extension requested.
b. Unless stated otherwise in the Agreement, an Agreement for all other Vellance B.V. products and/or Services will be entered into for a minimum period of 12 months.
c. At the end of a period the Agreement will be automatically extended by a period of one month each time, unless one of the parties gives written notice to terminate the Agreement at least one month before the agreed period expires.
d. Save for exceptions as may be stipulated in the Agreement and in these General Terms and Conditions, the Buyer may not terminate the Agreement early.
a. All fees for the Services and/or Products of Vellance B.V. will be charged from the moment the Agreement enters into effect, in accordance with the rates stipulated in the Agreement.
b. All rates exclude VAT and any other levies (which have been imposed by the government).
c. Vellance B.V. reserves the right to change the rates in the interim. Vellance B.V. shall only do this in writing, with an implementation period of 30 days. If the Buyer does not wish to accept the rate change, he will be entitled to terminate the Agreement to which the rate change applies in writing by registered letter, within seven days of receiving notice of the rate change.
a. The Buyer must pay invoices within the period stated on the invoice. A payment term of 14 days will apply in the absence of this payment term.
b. If the Buyer does not comply with its payment obligations in a timely manner, the Buyer will be in default without further notice of default and will owe statutory interest over the outstanding amount.
c. If the Buyer continues to fail to comply with its payment obligations, Vellance B.V. will refer the debt for collection. In that case, in addition to the total amount owed, the Buyer will be obliged to pay the judicial and extrajudicial collection costs in full, including all costs charged by external experts, in addition to the costs set out by law, related to the recovery of this debt or other legal action, the amount of which will be set at a minimum of fifteen percent (15%) of the total amount.
a. Vellance B.V. is at all times entitled to suspend performance of or dissolve an Agreement if at any time it appears that the Buyer, despite receiving notice of default, has failed to fulfil its obligations under the Agreement within a reasonable period of time, has provided false or incorrect information, or it appears that the Buyer has entered into an Agreement under false pretences.
b. In such cases Vellance B.V. may decide, following a suspension resulting from a failure by the Buyer to fulfil obligations, to continue the Agreement on condition that the Buyer fulfils its obligations as yet, including the payment of possible interest and costs (including compensation for damage).
c. Vellance B.V. is entitled before performing the Agreement to demand partial or full fulfilment of the Agreement by the Buyer if it is likely that the Buyer will not (or will not be able to) fulfil its obligations properly and/or on time.
d. Either party will be authorised to dissolve the Agreement if the other party, after receiving proper and as detailed a written notice of default as possible, stating a reasonable term to remedy the breach, fails imputably to comply with essential obligations under the Agreement and/or the General Terms and Conditions.
7. Early termination
a. Vellance B.V. may terminate an Agreement, partially or in full, with immediate effect, without requiring notice of default or legal intervention, by giving notice in writing, if the Buyer is granted suspension of payments (temporary or otherwise), if bankruptcy is filed for in respect of the Buyer or if his/her company is wound up or dissolved for the purpose of a reconstruction or merger with the other companies.
b. If at the time of the dissolution as referred to in this article 7 the Buyer has already received performances under the Agreement, these performances and the related payment obligation cannot be undone, unless Vellance B.V. is in default with regard to those performances. Amounts that Vellance B.V. invoiced prior to the dissolution in connection with that which it has already performed or delivered under the Agreement will still be owed, with due observance of the preceding sentence, and will become immediately due and payable upon the dissolution.
8. Service availability and management
a. Vellance B.V. has an obligation to make every effort to render the agreed Services to the Buyer as optimally and carefully as possible, utilising all the technical means at its disposal. Vellance B.V. shall remedy disruptions as soon as possible (or cause this to happen through third parties) and commence/complete any maintenance requested by the Buyer as soon as possible. Specific response times do not apply, unless stated otherwise in the Agreement.
b. Vellance B.V. cannot guarantee unrestricted access to/use of the internet and/or its services. Vellance B.V. cannot offer any guarantees with regard to the functioning and/or availability of Services that depend on third parties and/or a situation on which Vellance B.V. is unable to exercise a direct influence.
c. Vellance B.V. is entitled, without prior written notification, to take its systems out of use (temporarily or otherwise) and/or to restrict their use insofar as this is necessary because of disruptions (whether or not caused via the Service that the Buyer purchases), for the necessary maintenance to the systems and/or facilities or because of improvements or upgrades to those systems and/or facilities. Vellance B.V. shall do its utmost to ensure that the maintenance and/or improvements are carried out at times that cause the least inconvenience to the Buyer.
d. Vellance B.V. accepts no responsibility for the loss of, changes or damage to data caused by the use of the Service, including e-mail messages sent via Vellance B.V.’s network.
e. In the context of quality improvements and/or the necessary security of the Service, Vellance B.V. is entitled to make changes to the software, hardware, configurations and method of service provision, including but not limited to: rules on access times, identification procedures, version types and the content of the Service.
f. Vellance B.V. cannot guarantee the suitability of the Services for the Buyer’s intended purpose, even if Vellance B.V. is informed of this purpose in advance.
h. Vellance B.V. may suspend the delivery of Services if it has legitimate doubts about the Buyer’s creditworthiness and if the Buyer fails to furnish a deposit or security requested by Vellance B.V. or if it is certain or likely (or as good as) that the Buyer will not or is unable to meet the conditions of the Agreement.
h. The supply of power/energy is subject to the infrastructure, provisions and rules, as drawn up by the data centre where the Service will be procured by the Buyer via Vellance B.V.
9. Obligations of the Buyer
a. The Buyer must act in accordance with the applicable legislation and regulations and must conduct itself in a way that may be expected of a responsible and careful internet Buyer.
b. The Buyer shall procure the Service in accordance with the instructions and the obligations that Vellance B.V. imposes.
c. Restrictions and/or the provisions of the Agreement and these General Terms and Conditions apply to the improper use of the Service and/or the equipment provided to the Buyer by Vellance B.V. Improper use is understood to include but not be limited to: spamming (the deliberate large-scale distribution of undesirable e-mails), the infringement of copyrighted work or otherwise acting in breach of the intellectual property rights of third parties, the distribution of child pornography, sexual intimidation, discrimination, threatening behaviour or otherwise harassing persons, accessing other computers on the internet without permission (hacking) whereby by the Buyer breaches security and/or provides access via a technical operation using false signals and/or false keys or adopts a false identity, or acting contrary to public order and/or public decency or the Netiquette (the generally accepted code of conduct on the internet, as laid down in RFC 1855 and future amendments thereto).
d. The Buyer shall not perform any activities whatsoever on the systems of Vellance B.V. that can be assumed may cause damage or inconvenience to the systems of Vellance B.V. and/or other customers/users of Vellance B.V.’s Services.
e. The Buyer is responsible for the use (and possible misuse) of the assigned username/Domain Name, passwords and e-mail address(es). Vellance B.V. is entitled to make changes to these, insofar as it deems this necessary in the interest of its service provision. Vellance B.V. is not responsible for the security of the information that the Buyer places on its systems.
f. The Buyer will complete any registration forms accurately and in full. Vellance B.V. may reject inaccurate and/or incomplete forms.
g. The Buyer is responsible for the content of his or her site and/or content generated by him/her or content that is made public in any way whatsoever via Vellance B.V.’s Service.
h. The Buyer is not permitted to sell, lease or otherwise transfer or provide this Agreement and/or rights arising therefrom to third parties, unless Vellance B.V. has given its prior written permission to that effect.
i. The Buyer is not permitted to copy the Software provided to him by Vellance B.V., other than for his own use and to make back-ups. The Buyer may not make changes to the Software, or to any back-ups he makes thereof without the explicit prior written permission of Vellance B.V.
j. In case of physical presence in and around the data centre where the facilities delivered by Vellance B.V. for the Buyer are located, the rules and obligations of the relevant data centre will apply, which the Buyer shall respect. Examples include: rules regarding unlawful use of resources, going beneath the floor, other users’ cabinets, destruction of property, litter, food, photography (and the publication thereof) and other media (and the publication thereof). Possible damage/cleaning costs arising from the Buyer’s failure to follow the data centre’s rules/obligations will be recovered from the Buyer.
k. Any form of publication of the facilities/space rented by Vellance B.V. shall not take place without the prior written permission of Vellance B.V.
l. Vellance B.V. reserves the right to deny the Buyer access to the Service if the Buyer acts in conflict with this article 9 of these General Terms and Conditions and fails to fulfil its obligations in this regard, properly or in full. Vellance B.V. will not be obliged to pay any damages due to the Buyer being denied access to Service by virtue of this article and the Buyer declares that he indemnifies Vellance B.V. from all claims by third parties.
10. Applying for a domain name
a. If it has been agreed that Vellance B.V. will mediate for the Buyer in the acquisition of a Domain Name and/or IP addresses, the provisions of this article will also apply.
b. The application for, assignment and possible use of a Domain Name and/or IP addresses depend on and are subject to the applicable rules and procedures of the relevant registering bodies, including (but not limited to) the Netherlands Internet Domain Registration Foundation (Stichting Internet Domeinregistratie Nederland, or SIDN) . The relevant body will decide on the assignment of a Domain Name and/or IP addresses. Vellance B.V. will only mediate in the application and gives no guarantee that an application will be granted.
c. Domain Names will be registered in the name of the Buyer and the Buyer will be fully responsible for the use of the domain and the Domain Name. The Buyer indemnifies Vellance B.V. from all claims by third parties in connection with the use of the Domain Name, also if Vellance B.V. has not mediated in the acquisition of the Domain Name.
11. Obligations and liability of Vellance B.V.
a. Vellance B.V. will only be liable for an imputable failure in the performance of an Agreement if the Buyer gives Vellance B.V. immediate and proper written notice of default, providing a reasonable period within which to remedy the failure and Vellance B.V. is still in breach of its obligations after that period has passed. The notice of default must include as detailed a description as possible of the failure, so that Vellance B.V. can respond properly.
b. Vellance B.V. accepts statutory obligations to pay damages only insofar as stipulated in this article (11).
c. The total liability of Vellance B.V. in the performance of an Agreement as a consequence of Vellance B.V.’s actions on the part of the Buyer is limited to compensation for direct damage, up to a maximum of the total invoice amounts to be paid by the Buyer per year, with the proviso that the total liability shall never amount to more than 10,000 euros. Direct damage only includes:
I. the reasonable costs that the Buyer has to incur to ensure that the performance of Vellance B.V. conforms to the Agreement. However, this damage will not be compensated if the Buyer has dissolved the Agreement;
II. the costs that the Buyer has had to incur as a result of having to keep his old system(s) operational and the related facilities as a result of Vellance B.V. not having delivered on his binding delivery date, decreased by any savings that may result from the delayed delivery;
III> reasonable costs incurred in order to establish the cause and extent of the damage, insofar as the establishment relates to direct damage within the meaning of these terms and conditions;
IV. reasonable costs incurred in order to prevent or limit damage, insofar as the Buyer proves that these costs have resulted in the limitation of direct damage within the meaning of these terms and conditions.
d. Vellance B.V. is neither responsible nor liable for any indirect damage, including consequential damage, loss of profits, missed savings or damage caused by business disruptions.
e. With the exception of the cases mentioned in article 11.C, Vellance B.V. cannot be held liable for damages, regardless of the grounds on which an action for damages is based. The Buyer indemnifies Vellance B.V. for all claims by third parties.
f. Vellance B.V. must be informed in writing of any damage for which Vellance B.V. can be held liable by virtue of these General Terms and Conditions as soon as possible, but within at least 30 (thirty) days after its occurrence. Damage that is not reported will not be eligible for compensation, unless the Buyer provides an acceptable reason for being unable to report the damage earlier.
g. Unless provided otherwise, Vellance B.V.’s Services may only be procured during office hours on normal working days.
12. Software and intellectual property
a. All rights of intellectual property on all Software, equipment or other materials such as analyses, designs, documentation, reports, quotations and preparatory materials therefor, provided or developed under the Agreement, shall be vested exclusively in Vellance B.V. or its licensors. The Buyer will only receive a non-exclusive and non-transferable right of use with regard to the intellectual property for the duration of the Agreement.
b. The Buyer will refrain from reproducing and/or publishing and/or distributing the Software and the corresponding other materials (such as manuals, technical documentation, etc.).
c. The Buyer will refrain from making changes and/or adding to or removing Software, or parts thereof, and/or any brands, copyright, notices or other insignia (or causing the above to happen through third parties).
d. The Buyer is not permitted to let third parties use the Software and/or the related documentation.
e. Vellance B.V. may take any technical measures required to protect the Software. If Vellance B.V. has secured the Software by means of technical protection, the Buyer is not permitted to remove or evade this security. If the security measures result in the Buyer not being able to make a back-up of the Software, Vellance B.V. shall provide the Buyer with a back-up copy at the Buyer’s request.
With Vellance B.V.’s permission, it is possible to include per Agreement (or Agreement appendix) that Vellance B.V. shall transfer its intellectual property.
13. Confidentiality and personal/business data
a. The parties shall treat all confidential information concerning one another’s companies and their business associates and clients with strict confidentiality. Information will always be regarded as confidential if it has been marked as such by the parties. The obligation contained in this paragraph is valid for the duration of an Agreement and for two (2) months thereafter.
b. The Buyer hereby gives its permission for the data it provides to be used for the purpose of Vellance B.V.’s service provision. This data will always be stored and managed only in accordance with the applicable privacy laws.
c. The Buyer agrees to the processing of his/her personal data, in accordance with the applicable legal regulations, for market research and direct marketing in the context of Vellance B.V.’s Services. If the Buyer objects to the processing of personal data or wants to withdraw a permission previously granted, he may notify Vellance B.V. thereof at any time in writing.
d. The Buyer may request access to the data on him that are stored in Vellance B.V.’s database.
e. Vellance B.V. endeavours to take appropriate technical and organisational measures to protect personal data against loss or any form of unlawful use. These measures provide an adequate level of security, taking into account the present state of the art in security technology and the costs of implementation, in addition to the risks involved in the processing and nature of the data.
14. Force majeure
a. Neither party is obliged to fulfil any obligation in the event of force majeure. Force majeure includes: wars, risks of war, riots, fires, water damage, frost, flooding, earthquakes, work strikes, sit-down strikes, lockouts, government measures, defects to equipment, disruptions to the supply of energy and disruptions to communication connections, including telecommunication connections.
b. Both parties will be entitled to dissolve the Agreement if a situation of force majeure has lasted for longer than 60 days. The Buyer will in any case still owe the fee for the month in which the Agreement was terminated.
15. Final stipulations
a. If one or more provisions of these General Terms and Conditions is declared invalid in a judicial decision or otherwise, this will not affect the validity of any other provisions. The parties shall establish a new provision (or new provisions) to replace the invalid provision(s) that will approximate the intention of the original Agreement as much as is legally possible.
b. Vellance B.V. may transfer its rights and obligations arising from an Agreement to another legal person upon the transfer of its Company or a part thereof. The Buyer may not transfer the rights and obligations arising from an Agreement and/or these General Terms and Conditions to third parties and/or affiliated companies without the permission of Vellance B.V. Vellance B.V. will not withhold its permission on unreasonable grounds.
c. Any legal action of the Buyer towards Vellance B.V. or claims for damages shall lapse one year after the action/claim in question has arisen.
d. The Buyer hereby agrees to consent to and cooperate in a full transfer by Vellance B.V. of the rights and obligations from the Agreement to a third party.
e. The article numbers included in the General Terms and Conditions are indicative. The parties cannot derive any rights from these numbers.
f. Changes to the authority of the Buyer, his representatives or agents shall, even if these have already been registered in public registers, only take effect in respect of Vellance B.V. after the Buyer has informed Vellance B.V. thereof in writing.
g. Provisions from the General Terms and Conditions and/or the Agreement that by their nature are intended to remain in force beyond the termination of the Agreement will remain in force.
h. The Buyer must give Vellance B.V. immediate written notice of every intended change of address/invoice details.
i. The General Terms and Conditions are provided on and can be downloaded from the Vellance B.V. website (http://www.vellance.com). They will also be sent free of charge by Vellance B.V. on request. The ‘General Terms and Conditions concerning Hosting’ are also filed at the Amsterdam Chamber of Commerce under number 33296627.
16. Applicable law and choice of forum
a. These General Terms and Conditions and all Agreements, Quotations and other documents that fall under these General Terms and Conditions shall be governed by Dutch law.
b. Any disputes that arise between the parties will be resolved by the competent court in Amsterdam.