1. Definitions
* The “Acceptable Use Policy” consists of the rules described in Article 16 (“Acceptable Use Policy”).
* The “Agreement” regarding a specific Product consists of these General Terms and Conditions and the relevant Product Description.
* The term “Confidential Information” is taken to mean any information that either party provides to the other party both prior to and after the effective date of the Agreement, and that the receiving party should reasonably consider to be confidential. This includes all the Customers’ personal and technical information and the Customers’ data and any non-public technical and commercial information you have received from Cloudshop.
* “Cloudshop” is a of Cloudswork BV company (Chamber of Commerce number: 61046434).
* “Cloudshop User Interface” is the Cloudshop account that the Customer can log into online under certain conditions.
* The “Customer” is the natural or legal person that has concluded an Agreement with Cloudshop.
* “Electronic” or “Electronical” is taken to mean, where communication from Cloudshop to the Customer is concerned: by email to a known email address belonging to the customer. Where communication from the customer to Cloudshop is concerned: by email to the appropriate Cloudshop email address or via the Cloudshop Interface of the relevant customer.
* “Personal data” includes the Customer name, contact data, financial information and payment data, electronic messages, telephone calls, choice of products and services, orders and any other matters that disclose the Customers’ identity as well as any data the Customer stores in its Products.
* A “Product” is any item or service the Customer purchases from Cloudshop. Products include but are not limited to Cloud computing services (including webshop as a service), domain registrations, activities performed for the Customer, service agreements, software, equipment, designs, analyses and reports.
* The “Product Description” is any information communicated to the Customer, which describes the Product and all the agreements relating to it. If any Written or Electronic communication about a certain Product differs from information on the website or other publicly available sources of information, the Written or Electronic information shall prevail.
* “Written” or “in Writing” is taken to mean communication by letter, fax or email with a scanned letter attached sent to a valid email address.
2. Agreement and Communication
2.1 The Agreement comes into effect when Cloudshop has confirmed the order for a Product. At such time, the Customer agrees to these General Terms and Conditions and the Product Description communicated with regard to the relevant Product.
2.2 If the arrangements in the Product Description differ from these General Terms and Conditions, those of the Product Description shall prevail.
2.3 General Terms and Conditions of the Customer are only accepted if Cloudshop has given its permission for this in Writing.
2.4 Price and product information is given subject to erroneous data. All quotations and offers are without obligation, unless the quotation or offer explicitly states otherwise.
2.5 Orders can be placed In Writing, Electronically or through the website.
2.6 The Customer declares to be of age and authorized to place the order. If the Customer acts on behalf of a company, foundation or association, the Customer will always be held responsible personally for any unpaid invoices if it appears that the Customer was not authorized to act on behalf of the legal entity for which the agreement was concluded at the time when the order was placed with Cloudshop.
2.7 Changes in the Product Description which are outright positive or neutral will come into effect without the Customer being entitled to object.
3. Responsibility of Cloudshop
3.1 Cloudshop will deliver the Product in the form and within the time period described in the Agreement.
3.2 Cloudshop shall comply with the relevant legislation and the provisions in the Agreement with its Customers.
3.3 Cloudshop will endeavor to correct any outages in its infrastructure established by the Customer or by itself to the best of its abilities. If possible, status updates will be provided during breakdowns.
3.4 Cloudshop may engage third party service providers to provide all or part of the services regarding the Product.
3.5 If legally and technically possible and if the Customer has fulfilled its financial obligations Cloudshop will, if the customer so desires, provide the data of the Customer in a generally accepted form.
3.6 If legally and technically possible, Cloudshop will support an investigation into an incident conducted by the Customer into an incident by making available logs and other data.
4. Responsibilities of the Customer
4.1 The obligation of Cloudshop to commence the delivery of Products depends on the Customers agreement to make a required initial payment and / or whether you meet the criteria for credit approval.
4.2 The Customer will always provide Cloudshop with all co-operation required for the proper performance of the agreement and with all useful and necessary data or information.
4.3 Cloudshop may ask for proof of identity in the event of communication from a Customer or a potential customer. The Customer shall fully cooperate with this.
4.4 The Customer is responsible for the use and application of the Product. Cloudshop explicitly rejects any responsibility for the activities performed using the Product.
4.5 The Customer is responsible for inspection and security procedures, except if other arrangements have been explicitly agreed in the Product Description. Cloudshop is not responsible to the Customer or any third party for unauthorized access to the Customer data or unauthorized use of the Products.
4.6 It is the responsibility of the Customer to notify Cloudshop of any changes in names, addresses or billing information or other account information as soon as practicable.
4.7 The Customer is fully responsible for the suitability of the selected Products.
4.8 Cloudshop accepts no responsibility for services it is not contractually obligated to deliver, but which are performed for a Customer without charge.
4.9 Cloudshop may recommend products and services from third parties. Cloudshop does not accept any responsibility for these products and services.
4.10 Cloudshop is not required to make a back-up of the Customers’ data, except if it is explicitly agreed in the Product Description that Cloudshop is responsible for making the back-ups. Cloudshop is never responsable for possible defects or missing data of periodically made backup files.
4.11 We will only provide support to the administrative or technical contacts listed in the Customers’ account. Unless explicitly agreed otherwise, Cloudshop will not provide direct support to the Customers’ end users, subsidiaries, affiliates or other third parties.
5. Maintenance and technical adjustments
5.1 Cloudshop continuously adjusts its technical facilities to maintain or improve its services and security. As a result, certain technical parameters of the Product may change. If these changes do not have a significant adverse effect on the performance and security of the Customers’ Product it will not constitute a breach of the Agreement.
5.2 As a result of modifications to or maintaining the Cloudshop technical infrastructure, it is sometimes necessary to carry out maintenance, causing a temporary reduction in functionality of the Product. This maintenance does not constitute downtime or unavailability if arrangements in this regard have been agreed in the Product Description. This shall not apply if the Product has already experienced downtime or unavailability at the time the maintenance is announced. Cloudshop will try to minimize the inconvenience and give adequate notice of the maintenance in advance. Maintenance activities can be announced by Written, Electronic and public communication means.
6. Prices and payment
6.1 All prices are excluding value added tax (VAT) and any other levies imposed by the authorities, except when explicitly stated otherwise.
6.2 If Cloudshop is legally required to levy taxes on the delivery of the Products, you must pay Cloudshop the tax amount due or provide sufficient evidence to Cloudshop that you are exempt from the tax.
6.3 In the event of a dispute regarding part of an invoice, the undisputed part of the fees shall be paid immediately and an explanation shall be given in Writing or Electronically of the reason for the dispute. Both Parties are willing to collaborate to resolve any disputes immediately.
6.4 All invoices shall be paid by the Customer in compliance with the payment conditions stated on the invoice. Unless specified differently, the Customer shall pay the invoice within fourteen days after the invoice date.
6.5 If the Customer fails to pay the amounts due in good time, the Customer shall owe statutory interest on the outstanding amount without any warning or notice of default being required.
6.6 If the Customer fails to pay any amount due and, after a Written or Electronic warning, has still not paid the amount within the payment period stipulated in the warning, the Agreement can be terminated by Cloudshop or the services regarding the Product can be suspended.
6.7 If, after several warnings the Customer continues to fail to pay any amount due, the claim can be passed on to a collection agency, in which case the Customer shall owe any judicial and extrajudicial costs in addition to the total payable amount.
6.8 Cloudshop may request an advance payment for Products to be delivered to the Customer without stating a reason.
6.9 Where invoices with a credit balance are concerned, Cloudshop may decide whether these will be paid to the Customer or added to a credit balance of the Customer, that is to be used for the payment of existing and future invoices.
7. Liability
7.1 Cloudshop accepts legal obligations to pay compensation insofar as this is stipulated in this article. Cloudshop rejects any guarantee not explicitly stated in the Agreement to the greatest extent permitted by law, including implied warranties with regard to satisfactory quality and suitability for a particular purpose. However, compensation arrangements regarding the uptime and availability of the Product can be agreed in the Product Description.
7.2 The total liability of Cloudshop for a to Cloudshop attributable failure in the fulfillment of the Agreement shall be limited to a reimbursement of the direct damage up to an amount equal to six times the monthly cost Cloudshop charges on the affected Products.
7.3 The term direct damage shall only be taken to mean:
(a) the reasonable costs incurred by the Customer to make the relevant Products meet the Agreement. This damage shall, however, not be compensated if the Customer has terminated the Agreement;
(b) the costs incurred by the Customer out of necessity to keep any old system or systems and related facilities operational for a longer period of time, because Cloudshop has not delivered on a binding delivery date, less any savings resulting from the delayed delivery;
(c) reasonable costs incurred to determine the cause and scope of the damage, insofar as the determination relates to direct damage as referred to in these General Terms and Conditions;
(d) reasonable costs incurred to prevent or limit damage insofar as the Customer proves that these costs have resulted in limitation of the direct damage as referred to in these General Terms and Conditions.
7.4 Any liability of Cloudshop for indirect damage, including consequential damage, damage caused by loss of data, loss of rights or domain names, lost profits and loss due to business interruption is excluded.
7.5 Liability of Cloudshop because of an attributable failure in the fulfillment of an agreement shall only arise if the Customer immediately and properly puts Cloudshop into default in Writing, stating a reasonable period to correct the failure and if Cloudshop continues to fail attributably in the fulfillment of its obligations after such period has lapsed. The notice of default must contain a description of the shortcoming that is as detailed as possible, in order to enable Cloudshop to respond adequately.
8. Response to legal action
8.1 If Cloudshop is confronted with a legal action relating to a Customer or a Product of a Customer, it will contact the relevant Customer if this is legally permitted.
8.2 If it is not permitted by law to contact the Customer, Cloudshop will assume that the Customer does not want to satisfy the claim, and will use reasonable legal means to prevent the claim from being satisfied.
8.3 If it is permitted to contact the Customer, but the customer does not respond to the requests of Cloudshop within a reasonable period, Cloudshop may deal with the situation as it sees fit. Cloudshop is not required to assume that the Customer does not want to satisfy the claim. Cloudshop explicitly rejects any liability for its actions or inactions as a consequence of the exercise of its rights under this article.
8.4 If there is contact with the Customer in regard to a claim, Cloudshop will carry out any reasonable judicial instructions of the Customer.
8.5 If Cloudshop or any of its employees, agents or suppliers (the ‘Indemnified’) are confronted with a legal action instituted by a third party in regard to the activities of the Customer, the Customer shall pay the costs incurred for the defense against the claims (including reasonable costs for legal assistance) and any compensation, penalties or other amounts imposed on the Indemnified as a consequence of the claim.
8.6 Cloudshop will take any possible legal action if data is threatening to be seized which is not legally required to be made available.
9. Privacy
9.1 The activities of Cloudshop with regard to the Customers’ data are governed by the Dutch Personal Data Protection Act of 2000.
9.2 The Personal Data of the Customer will not be made available to third parties except:
(a) if there is a legal requirement to do so;
(b) if this is a necessary part of the operation of het Product (e.g. the whois data of a domain name or credit card details with a payment processor);
(c) where necessary to exercise the rights of Cloudshop under the Agreement or to combat fraud.
9.3 Anonymous technical data relating to Products purchased by the Customer can be made available to third parties to enable or improve the service.
9.4 In order to improve its service Cloudshop may place cookies if a Customer or visitor use the website or web interfaces. These cookies cannot be executed as code.
9.5 The only government that may compel disclosure of data stored on the Cloudshop infrastructure is the Dutch government. Cloudshop explicitly states that it does not have any obligation to any other government in this regard.
9.6 If this is legally possible, Cloudshop will notify the Customer when a potential invasion of the Customers’ privacy has been detected.
9.7 It is possible for the Customer to deny Cloudshop access to the hosting environment except for situations where Cloudshop is forced by law to access it.
10. Confidential Information and Intellectual Property Rights
10.1 Both Parties agree not to use the Confidential Information of the other party or to disclose it to a third party, except with regard to the provision or use of the Products, the exercise of the legal rights of Cloudshop and the Customer under the Agreement or if required by law.
10.2 If a request is received from a third party to transfer Confidential Information, the other party will be notified as soon as possible, unless prohibited by law.
10.3 Each Party retains all rights, title and interests in and to their respective trade secrets, inventions, copyrights and other intellectual property rights. Intellectual property developed by Cloudshop during its rendering of the services belongs to Cloudshop, unless Cloudshop has agreed with the Customer in Writing or Electronically in advance that the Customer will have an interest in this.
10.4 Cloudshop will not acquire any ownership interest in or rights to the information the Customer transfers through or stores on the Cloudshop network unless we have agreed in Writing or Electronically in advance that this will be the case.
11. Software
11.1 Cloudshop accepts no responsibility for checking the correct use of software licenses for the Products of the Customer.
11.2 The Customer undertakes to communicate the correct usage parameters of software licenses, of which the use must be reported.
11.3 The Customer shall not modify, copy or reproduce software provided by Cloudshop and its suppliers without explicit permission of Cloudshop or if this is explicitly permitted by the relevant software license.
12. Suspension of the service
12.1 The delivery of products can be suspended without any liability or reduction of payable amounts if:
(a) the Customer fails to pay within the agreed period, a warning has been sent to the Customer and the amounts have not been paid within the period stated in the warning.
(b) Cloudshop is required to do so under Dutch law.
(c) the Customers’ system is attacked or hacked and Cloudshop reasonably suspects that by suspending the services, the Customers’ damage or that of others can be limited.
(d) If the stability of the Cloudshop services to other customers is threatened or if the relevant Product is used to attack the infrastructure of Cloudshop itself.
(e) if the Product uses significantly more than can be expected on the basis of the limits allocated under the Agreement and this could lead to significant financial loss of the Customer or Cloudshop.
12.2 If possible and legally permitted, Cloudshop will always try to contact the Customer in order to provide a timely warning of an impending suspension.
13. Termination without notice
13.1 The Customer may terminate the Agreement without notice if Cloudshop fails to deliver the agreed Products and Cloudshop has not corrected this failure within thirty (30) days after a Written notice of default.
13.2 Cloudshop can terminate the service in Writing or Electronically without notice if:
(a) critical account data supplied is inaccurate or incomplete;
(b) the person who signed the Agreement has no legal right or authority to enter into this Agreement on behalf of the person representing the Customer;
(c) the Customer fails to pay an amount within the agreed period and after a warning has been sent, the payable amount has not been paid within the period stated in the warning;
(d) the Acceptable Use Policy has been violated several times, or a violation of the Acceptable Use Policy is not corrected;
(e) the Customers fails to fulfil its obligations arising from the Agreement and the obligations have not been fulfilled within thirty (30) days after Cloudshop has notified the Customer of this failure.
13.3 The Customer shall be responsible for payment for the relevant Product until the time of termination. Any amounts paid for periods during which no services are received because of the termination of the Agreement will be refunded by Cloudshop.
13.4 Either party may terminate the Agreement if the other party is unable to pay its debts or goes into voluntary or compulsory liquidation or makes an arrangement with its creditors or if a receiver, trustee or administrator has been appointed or if it discontinues its business for any reason whatsoever or performs or undergoes similar acts as a consequence of which it is unable to pay its debts.
13.5 If possible and legally permitted, Cloudshop will notify the Customer as soon as possible Electronically or in Writing of any termination without notice.
14. Term and Termination with a notice period
14.1 The Customer may terminate the Agreement in Writing or Electronically. If no specific conditions have been agreed, a notice period of 1 month shall be observed.
14.2 Cloudshop can terminate the Agreement in Writing or Electronically. If no specific conditions have been agreed, a notice period of 2 months shall apply.
14.3 The Parties shall never be under any obligation to pay any compensation because of termination. If no specific conditions have been agreed, notice of termination will not lead to a refund of amounts already invoiced.
14.4 Cancellations will always be confirmed in Writing or Electronically. This confirmation serves as proof of termination and must be retained by the Customer. If the Customer has not received a confirmation within 10 days, the Customer is expected to contact Cloudshop to find out if the notice of termination has been received.
15. Force majeure
15.1 Cloudshop is not obliged to fulfill any obligation arising from the agreement if it is prevented by force majeure. Force majeure includes unforeseen regulatory or legal situations or disasters and disruptions of a scope or nature for which in general no precautions are taken in the industry.
15.2 If the situation of force majeure has lasted longer than ninety days, the Parties are authorized to terminate the Agreement in Writing. Activities that have already been performed pursuant to the Agreement will be settled proportionately, without the Parties owing each other any other amounts.
16. Acceptable Use Policy
16.1 The Customer shall comply with Dutch law.
16.2 The Customer shall use the services provided by Cloudshop in such a way that the operation of the Cloudshop network and the general Internet infrastructure are not obstructed or impeded.
16.3 The Customer shall not use the Cloudshop infrastructure to send spam messages. The Customer shall not introduce viruses and other types of malicious programs in the Cloudshop network or the general internet infrastructure. The Customer shall refrain from any attempt to enter any environment or to gain access to any data without authorization.
16.4 The Customer shall take all reasonable precautions to ensure that unauthorised third parties cannot enter its system.
16.5 If Cloudshop conducts an investigation into possible violations of the Agreement or security and performance problems, the Customer shall provide all the requested cooperation.
16.6 The Customer shall immediately report any situations and activities that could lead to security, performance, legal or reputational risks for Cloudshop and its customers. If the information was available prior to the signing of the Agreement, this information must be reported prior to the signing of the Agreement.
16.7 The Customer shall communicate with staff of Cloudshop or the staff of its suppliers in a professional manner. Aggressive conduct against Cloudshop staff and the staff of its suppliers is not permitted.
16.8 Cloudshop has the decisive voice in determining whether the Acceptable Use Policy has been violated.
17. Retention of title
17.1. All delivered and to be delivered Products shall remain the sole property of Cloudshop, until all claims that Cloudshop has or will have with respect to Customer, also including claims mentioned in article 6 with respect to interest and extrajudicial and judicial costs, have been paid in full.
17.2 If a Customer manufactures new goods from Products supplied by Cloudshop on which retention of title is effective, they act on that formation in commission of CloudShop and they will keep the effects for CloudShop. Customer only becomes owner at the time the reservation of title is canceled when all claims of CloudShop have been met.
17.3 As long as the ownership of the goods did not pass on to the Customer, she may not pledge the goods or grant third parties any rights thereto, except in the ordinary course of its business. Customer is required at the first request of Cloudshop to cooperate in the establishment of a lien on the claims that Customer received under resale of goods at his / her customers. Customer shall in all the aforementioned cases upon request of Cloudshop sign a deed establishing the pledge. She shall guarantee that she is authorized to pledge the products and that on the products no pledge or limited rights are applicable, apart from the rights of Cloudshop .
17.4 . Cloudshop is entitled to take back the final outcome of Products under retention of title and still with the Customer, or retract or restrict the right of use of the counter party, if Customer fails to fulfill her payment obligations.
17.5 The foregoing provisions shall not affect the accruing to Cloudshop rights.
18. Domain names
18.1 Cloudshop is a reseller of domain names.
18.2 The various top level domains are managed by different registrars. All these organizations have their own conditions regarding registration, administration, transfer and their own regulations in regard to domain name disputes. The terms and conditions of any top level domain will apply to each relevant domain name.
18.3 Cloudshop registers domain names on a first-come, first-served basis.
18.4 The Customer will accept separate registrations if one or more domains could not be registered.
18.5 With respect to domain names, the Customer authorizes Cloudshop to perform legal acts in his or her name.
18.6 Penalties imposed on Cloudshop, caused by the failure of the Customer to deliver information and forms required for a particular domain name registration will be charged to and paid by the Customer.
19. Notices
19.1 Most messages to Cloudshop about a Customers’ Products and account can be sent Electronically. Written notices regarding the termination of the Agreement without notice, compensation or other non-standard legal issues must take place by a signed letter sent by post or fax to the contact address on the website for the attention of the General Manager or by email (with a scan of the corresponding letter) to info @ cloudshop.nl.
20. Amendments to the General Terms and Conditions
20.1 Cloudshop can amend these Terms and Conditions. New General Terms and Conditions will be communicated in Writing or Electronically.
20.2 The new General Terms and Conditions will come into effect immediately in regard to new Products and after thirty (30) days in regard to existing Products.
20.3 The Customer may object to these amendments in Writing or Electronically within thirty (30) days. In this case, Cloudshop can reverse the amendment in regard to this Customer or terminate the Agreement. From that time, the Customer may switch to a different supplier within at least sixty (60) days. During this period, the old General Terms and Conditions will remain applicable. Any amounts paid for periods during which no services will be received due to the termination of the Agreement will be refunded by Cloudshop.
20.4 Amendments to the General Terms and Conditions which are outright positive or neutral for the Customer will come into effect without the Customer being entitled to object.
21. Final provisions
21.1 These General Terms and Conditions and any additional Agreements between the Customer and Cloudshop shall be governed by Dutch law.
21.2 Changes in management or legal form shall not affect the Agreement.
21.3 If any provision of this Agreement is unenforceable and / or found to be invalid, such provision shall not invalidate these General Terms and Conditions in their entirety. The unenforceable part will be modified insofar as possible to make it enforceable, but always in accordance with the business and financial objectives of the Parties that form the basis of the Agreement.
21.4 These General Terms and Conditions replace any previous General Terms and Conditions.
vs 1.7en | september 2013