Article 1 DEFINITION OF TERMS
Within these General terms & conditions the following terms are defined as follows:
Xootle = Xootle B.V. further to be named as SUPPLIER.
Contracting party: the person(s) who has(have) entered into an Agreement with the SUPPLIER.
Agreement: the agreement between SUPPLIER and Contracting party upon which the SUPPLIER delivers a service.
Service: the specific service that has been agreed upon between SUPPLIER and Contracting party, as specified in the Agreement. Service also includes the provision of software, web hosting services, domain registrations and CMS pages.
End equipment: the equipment and possible software accessories of SUPPLIER that serves as the connection through which Contracting party can make use of the Service.
Network: the transfer equipment and, where applicable, the routing equipment and other technical resources that allow for the transfer of signals between connecting points via cables, radio waves, optical or other electromagnetic means and as far as these are under control of SUPPLIER.
Software: programs supplied by SUPPLIER including all for those appropriate laid down for machines or not, readable instruction to ensure the functioning of some automated provision or the processing of data within, as well as documentation directly relating to this and including preparatory drafting material.
License: user’s right to use the software for as long as the license is valid on the condition that the General terms & conditions set forth by SUPPLIER are met.
Article 2 - APPLICABILITY AND RANKING ORDER
These General terms & conditions apply to Agreements made between SUPPLIER and Contracting party concerning the Service.
These General terms & conditions are in effect as per 30th of September 2021. In case of contrariety of conditions within the Agreement, General terms & conditions or Appendices, the following ranking order is in effect:
Article 3 - THE REALISATION OF AN AGREEMENT
Unless otherwise specified, an Agreement is first agreed upon between SUPPLIER and Contracting party:
All quotations from SUPPLIER are without any obligation, unless otherwise stipulated.
The Agreement or application must be signed by an, for that purpose, authorized representative of Contracting party.
Article 4 - DOMAIN NAME
If contracting party has a domain name, it must be issued and registered through an, for that purpose, authorized company, in accordance with the general terms and conditions of that company.
Contracting party will safeguard and indemnify SUPPLIER against all kinds of claims, accusations or law suits in connection with (the use of) the domain name in the name of or by Contracting party.
Article 5 - DELIVERY OF THE SERVICE
The SUPPLIER will deliver the Service as soon as possible once the Agreement has been brought about. The wishes, within reason, of the Contracting party will be taken into account by SUPPLIER. The delivery times stipulated by SUPPLIER are never binding unless expressly otherwise agreed upon in writing.
Contracting party will give SUPPLIER the necessary information for delivery of the Service.
Contracting party will follow the instructions of SUPPLIER regarding the delivery of the Service.
Article 6 - USE OF IDENTIFICATION DATA
SUPPLIER will solely supply Contracting party with identification data, address data and/or codes for use of the Service. Contracting party will handle these identification data, address data and/or codes with care. SUPPLIER will be notified by Contracting party in the case of loss, theft and/or other in any other way mis-usage, so that proper action can be taken by all parties.
Contracting party will pay all compensations, derived from the usage of the Service of identification data, address data and/or codes.
When it is reasonably evident that because of Contracting party identification data, address data and/or codes have been misused, the SUPPLIER can give Contracting party instructions that must be executed.
If it has been established that Contracting party has misused the identification data, address data and/or codes or that Contracting party has not responded to the instructions as stated in the preceeding article, then Contracting party is directly in omission.
Article 7 - USE OF THE SERVICE
Contracting party is not allowed to resell and/or rent out the Service again, unless otherwise agreed upon in writing.
Contracting party must take care to use the Service and any related End equipment carefully. Contracting party will observe any possible instructions given by SUPPLIER as to how to use the Service together with any related End equipment.
Contracting party is not allowed to use equipment or software that may damage the Service, the SUPPLIER or a third party, or whereby a technical malfunction may develop in the Service.
Contracting party must take up a position and must behave as may be expected of a responsible Internet-user, and must abide by the “Netetiquette” (the generally accepted Internet rules as stated in RFC 1855 (ftp://ripe.net/rfc/rfc1855.txt) and future amendments hereof.
Article 8 - USE OF NETWORKS
Contracting party can make use of networks which are connected directly or indirectly to the SUPPLIER ‘s Network. For this the condition is that, as soon as Contracting party accesses the network of a third party, he will comply with the legal conditions and other conditions, that are in force at that moment for the use of that network.
In all fairness, the SUPPLIER can not be expected to deliver the in paragraph 1 mentioned conditions to Contracting party.
Contracting party will safeguard and indemnify the SUPPLIER from every claim, charge or lawsuit resulting from non-compliance with that stated in paragraph 1.
Contracting party will not cause any disturbance to the functioning of SUPPLIER’s Network, Network(s) of third party(s) and/or the connection between those Networks through (the contents of) the data traffic or an action and/or negligence caused by Contracting party.
If, in SUPPLIER’s reasonable opinion a danger arises for the functioning of SUPPLIER’s Network and/or of the Service to SUPPLIER’s customer such as, but not only, by spammail, open relay, portscan or hacking by Contracting party and/or because of Contracting party, SUPPLIER can give reasonable instructions to Contracting party, which must be executed within the time stated.
Contracting party is without further notice of default directly at fault, if no attention is paid to the instruction, as stated in the previous paragraph and/or if (the contents of) the data traffic or the actions and/or negligence by Contracting party directly causes an interference to the functioning of SUPPLIER’s Network, networks of third party(s) as well as the connection between these networks.
Article 9 - DATA TRAFFIC OF CONTRACTING PARTY
If a third SUPPLIER draws attention to the fact that on the website of Contracting party information is given which according to this third party violates the rights of this third party or is otherwise unlawfully used, SUPPLIER is entitled, if it is plausible that by the disclosure of this information unlawful action is taken, the Service with which the website is connected to SUPPLIER’s Network, to immediately stop or if the website is situated on a system of SUPPLIER, to remove the information in question immediately from that system. SUPPLIER will never be responsible for whatever kind of damage suffered by Contracting party or his/her clients as a result of the disconnection of the Service or as a result of the removal of the information.
Contracting party safeguards and indemnifies SUPPLIER from every kind of claim, complaint or lawsuit by a third party in connection with (the contents of) the data traffic or the information on the website coming from Contracting party.
Article 10 - SERVICE AND MAINTENANCE
SUPPLIER will, as far as reasonably can be expected of him/her, endeavour to maintain the Service during 7 days a week and 24 hours a day, except for the time necessary for maintenance activities.
SUPPLIER will, as far as reasonably can be expected of him/her, endeavour to maintain and to keep up the connection with other networks.
Contracting party must report malfunctions in the functioning of the Service, as soon as can possibly be expected of him/her, to SUPPLIER.
SUPPLIER will restore a malfunction in the Service as soon as possible, after the malfunction has been reported by contracting party.
SUPPLIER does not in any way guarantee that the Service that she deliveres is suitable for any purpose, nor does SUPPLIER give any other guarantees, other than mentioned in the (written) Agreement or in these General terms & conditions.
The costs of removing the malfunction in the Service is for the account of the SUPPLIER, unless:
Article 11 - PRIVACY
SUPPLIER will fulfil her commitments on account of the legislation of privacy.
Contracting party gives SUPPLIER permission solely to supply data of Contracting party necessary for the (making of) delivery of the Service, to her/his associated enterprises, also when these are situated outside the European Union.
Article 12 - SECRECY
Each party is obliged to secrecy of classified information towards a third party, in whatever form, that has been obtained through and about the counter party.
Parties under this Agreement do not have an obligation to secrecy with regard to information that:
The issue of classified information to a third party may only take place in the following cases:
For as far as a third party(s) is involved in the execution of the Agreement, parties must guarantee, that for this third party(s) and it’s personnel, similar clauses with regard to the secrecy are set.
If one of the parties imputably falls short of the execution of this article, this party forfeits an immediate penalty payable on account without legal intervention of a minimum of € 5,000,00 (that is: five thousand euros’s) per event, all further rights undiminished, including those on fulfilment and/or reimbursement of the damage incurred by her.
Article 13 - DATA TRAFFIC ACCROSS THE BORDER
If Contracting party, through use of the Service, transports data, personal data, information and/or computer programs across national borders, Contracting party indemnifies SUPPLIER against all claims, costs or damage by a third party in case these data, personal data, information and/or computer programs are being executed contrary to the statutory regulations in force of the Netherlands and/or country of export.
Article 14 - CHANGE AND MOVE
Change of the invoice and/or residence address and other administrative data must be reported in writing to SUPPLIER as soon as possible.
Change or move of a Service must be requested in writing with the SUPPLIER. SUPPLIER can charge for expenses with the changing or moving of a Service.
Article 15 - CHANGE IN CHARACTERISTICS SERVICE
SUPPLIER has the right to change the technical characteristics of a Service.
SUPPLIER will announce in writing a change taking into consideration a reasonable period of time, unless this is not possible in all reasonableness.
If in the opinion of Contracting party the changes meant in this article result to such a degree in a change of the working method of it’s company and/or functionality of the Service, it has the right to terminate the Agreement with immediate effect.
Article 16 - COMPENSATION
SUPPLIER can, next to the agreed prices, charge costs for specifications of the bills, for taking over a contract, change of ascription and thereby similar transactions.
Amounts as mentioned in the Agreement and as meant in this article, go in euro’s and are ex VAT.
For as far as the fixed compensations are related to a certain period and are not due over an entire period, SUPPLIER can charge an amount per calendar day pro rato.
If it is a matter of periodically expiring amounts to be paid by Contracting party, SUPPLIER is authorized, unless expressly otherwise agreed to in writing, to adapt the current prices and rates quarterly on the first day of that quarter providing that SUPPLIER has informed Contracting party not later than 30 days before the beginning of the concerning quarter in writing of the intended adaptation. If SUPPLIER wishes to reduce the current prices and rates. SUPPLIER is authorized to carry out this reduction immediately.
If SUPPLIER has entered into an agreement on behalf of Contracting party with a third party and this third party raises her rates, SUPPLIER is authorized to carry out this increase of rates immediately.
If Contracting party does not agree with a by SUPPLIER indicated raise of prices and rates as meant in paragraph 4 of this article, Contracting party is authorized to discontinue the Agreement in writing within 14 working days after date of the in these articles meant notification against the in the notification of SUPPLIER mentioned date upon which the price and rates raise would come into effect.
Article 17 - PAYMENT
The compensations for the Service are due from the time the announcement of delivery of the Service has been made by SUPPLIER to Contracting party.
SUPPLIER will charge the compensations to Contracting party by means of an invoice. Payment must take place within 14 days from the date of the invoice. The moment of payment is the moment when SUPPLIER has received the indebted amount.
SUPPLIER invoices in advance.
If Contracting party is of the opinion that the amount on the invoice is incorrect, the Contracting party must make the objections known to the SUPPLIER in writing before the expiry date of the invoice. After receipt of the objection SUPPLIER will inquire into the accuracy of the invoice amount. The part of the invoice amount against which no objection has been made stays claimable. Payment of that part must therefore not be postponed.
If Contracting party has not paid within the in paragraph 2 mentioned term, SUPPLIER will inform him of this in writing and will determine a further term for payment. If payment has not been made after expiry of the further term, Contracting party is in omission and all outstanding invoices are payable on demand from that moment onwards.
If Contracting party is in omission, SUPPLIER can charge Contracting party reasonable costs for legal as well as out of court settlement and SUPPLIER can charge legal interest from the date on which the invoices are claimable.
Article 18 - FINANCIAL SECURITY
If on the grounds of facts and circumstances reasonable doubt exists about Contracting party fulfilling it’s payment liabilities, SUPPLIER has the right to demand financial security of Contracting party.
The amount of the in paragraph 1 mentioned financial security will not be any higher than the amount that Contracting party reasonably owes in the opinion of the SUPPLIER over a period of six months.
The manner of security will be arranged further on.
As soon as on the grounds of facts and circumstances a guarantee is no longer necessary, SUPPLIER will announce that the financial security can be dropped.
Article 19 - INTELLECTUAL OWNERSHIP
All rights of intellectual or industrial property to all under the terms of the agreement available software, equipment, analyses, designs, documentation, rapports, quotations, preparatory material, and the like (collectively: “(the) works”) rest solely with SUPPLIER or it’s licensors.
SUPPLIER will indemnify Contracting party against all legal claims that are based on the assertion that works, placed at one’s disposal by SUPPLIER, infringe upon an in the Netherlands valid right of intellectual or industrial property, under the condition that Contracting party informs SUPPLIER immediately in writing of the existence and the contents of the legal claim and the handling of the case, under which the making of possible arrangements, and leaves this entirely to SUPPLIER. Contracting party will give SUPPLIER for this purpose the necessary authorization, information and cooperation so that SUPPLIER can, if necessary in name of Contracting party, defend itself against these legal claims. The obligation of warranty expires if and in as far as the infringement concerned is associated with changes in the works that Contracting party has done or has let them be done by a third party(ies).
All rights in the field of copyright, source codes, Trade-marks, intellectual property, and other components that are being used for and/or by the software, lie, under all circumstances named no matter how and wherever in the world, with SUPPLIER or it’s licensors.
Article 20 - LICENSE AGREEMENT SOFTWARE
In this article it is arranged how Contracting party may make use of SUPPLIER-software products, including possible manuals, floppy disks, cd-roms, dvd-disks, supplied computer programs and materials that go with it (the “software”). By opening the sealed packing of the software carriers and/or by using the software, Contracting party accepts the conditions of this agreement. If Contracting party does not agree with the conditions of this agreement, Contracting party must return the software carriers unopened together with any related material within 8 days after purchase by recorded delivery with a so-called de-installation statement for complete reimbursement.
Licence conferment. This agreement gives Contracting party the right to make one copy of the software. The software is “in use” on the computer, when it is loaded into a temporary memory or installed in the permanent memory of this computer. Contracting party may use the software on it’s own closed network with 1 active database. For information about inexpensive multi-licence rates, Contracting party can contact SUPPLIER.
Copyright and restrictions. The software is protected by laws of intellectual property and by international provisions of a pact. SUPPLIER keeps all copyrights. Contracting party only receives a licence as described in this agreement. It is only allowed to make one copy of the software for back-up and archives purposes. It is only allowed to copy the software on one single hard disc, if Contracting party only saves the original for back-up or archives purposes. It is not allowed to rent out or to give in hire purchase or in any other way publicise or to multiply the software, except for Contracting party’s own use. (Public) libraries are prohibited to lend out software without prior written permission from SUPPLIER. It is not allowed to alienate this licence in whatever way what so ever.
It is not permitted to decompile, disassemble or decrypt the software. This is under penalty of an immediately due and payable fine of at least 2,000,000 euros (two million euros).
Limited guarantee. SUPPLIER guarantees that the media on which the software is distributed, will be free of material and manufacturing mistakes 60 days from the date of purchase. SUPPLIER will, as desired, refund the amount paid for the software, or repair or replace the software, provided that the defect software is returned within 60 days starting from the date of purchase to SUPPLIER, accompanied by an original receipt and a de-installation statement. This is Contracting party’s only right when calling upon the guarantee. Other than the above described guarantee will not be given by SUPPLIER.
Limitation of liability. SUPPLIER rules out all liability for defects in the software. For as far as this stipulation by right can not be agreed upon, liability of SUPPLIER will be limited to the amount of the purchase price of the software.
Contracting party is obliged to fill in and sign the de-installation form when Contracting party does not wish to make use anymore of SUPPLIER’’s software products or when on of both parties cancels the agreement in compliance with all terms of delivery referring to article 24. With the de-installation form Contracting party declares that not in any way will the software still be used or installed by Contracting party or others.
Article 21 - SUPERIOR FORCES AND/OR SPECIAL CIRCUMSTANCES
SUPPLIER is not held into keeping any obligation towards Contracting party if he/she is prevented to do this due to a circumstance, that is not ascribed to her guilt, neither by virtue of the law, legal act or in traffic current opinions for his/her account.
Circumstances that are among other things, but not exclusively, not for the account of the SUPPLIER are a technical malfunction in the supply of energy or material, transport delay, a strike, the untimely or no longer timely delivery by SUPPLIERs of their service and/or product and/or technical malfunctions in a service and/or a product of a SUPPLIER.
In the case of superior forces SUPPLIER is authorized to extend the delivery time, i.e. the term in which the work had to be done, with the time during which the temporary impediment towards delivery i.e. achievement, counts. If the temporary superior forces last longer than six months, the Contracting party will be authorized to cancel the Agreement. The latter right is cancelled however as soon as the situation of superior forces will be nullified and the right to dissolution has not been called upon yet.
Contracting party is, except for the specified in paragraph 3 of this article in the case of superior forces, not authorized to cancel the Agreement and/or demand indemnity.
Article 22 - RESPONSIBILITY
SUPPLIER accepts legal obligations for indemnity for as far as this is evident from this article.
SUPPLIER’s total responsibility due to accountable shortcomings in compliance with the Agreement with Contracting party is limited to compensation for direct damage upto a maximum amount of the in that Agreement stipulated price (ex VAT). On no account will the total compensation for direct damage amount to more than € 1,000,-- (a thousand euros).
SUPPLIER’s total liability for damage by death or physical injury or for material damage of businesses will on no account amount to more than € 10,000,- (ten thousand euros) each incident, whereby a series of connected events count for one incident.
SUPPLIER’s liability for indirect damage, including consequential damage, loss of profit, lost savings, damage through stagnation, loss, exchange or damage of electronical data and/or damage through delay in the transport of data traffic is out of the question.
Other than the in paragraph 2 and 3 mentioned cases no liability whatsoever rests with SUPPLIER for indemnity, no matter on what grounds an action towards indemnity would be based.
SUPPLIER’s liability due to accountable shortcomings in compliance with an Agreement only arises if Contracting party notifies SUPPLIER of default immediately and adequately in writing, whereby Contracting party gives SUPPLIER a reasonable amount of time to fulfil its obligations yet, and SUPPLIER even after expiration of this amount of time is still lacking in fulfilling its obligations. Proof of default must contain a description in small detail of the shortcomings, so SUPPLIER is able to react adequately.
The terms of a development of a possible right to indemnity is always the fact that Contracting party notifies SUPPLIER in writing of the damage as soon as possible, yet not later than one (1) month after its coming into existence.
Article 23 - POSTPONEMENT
SUPPLIER keeps the right to temporary discontinue and/or to restrict the use of the Service, if Contracting party does not keep to an obligation in the General terms of the Agreement relevant to the Service in question towards SUPPLIER and adjournment is justified because of this non-obligation. The obligation for payment of the compensations continues to exist during the time of adjournment.
Re-connection and/or placement at the disposal of the Service will take place, when it is evident that that Contracting party has fulfilled his obligations after all within a by SUPPLIER given time and the relevant fixed amount for re-connection and/or the placement at disposal has been fulfilled.
Article 24 - LENGTH AND TERMINATION
The Agreement is entered for an indefinite period of time, unless agreed upon otherwise.
If the Agreement has been entered for an indefinite period of time, each party can terminate the Agreement towards the end of a calendar year in compliance with a term of notice of two calendar months, unless otherwise agreed.
If the Agreement has been entered for an indefinite period of time, each party can terminate the Agreement towards the end of the agreed period of time in compliance with a term of notice of two calendar months, unless agreed upon otherwise.
Each party has the right to dissolve the Agreement with immediate effect without court intervention and without proof of default, if
Each termination cancellation of services must take place in writing.
Article 25 - CONSEQUENCES OF TERMINATION
In case of termination of the Agreement, whatever the reason:
Article 26 - TRANSFER
Without prior written permission of SUPPLIER, Contracting party is not authorized to pass on the rights and obligations from the Agreement to a third party.
Article 27 - CHANGE OF GENERAL TERMS AND CONDITIONS
Article 28 - HARDWARE OWNERSHIP
Hardware delivered by SUPPLIER is and remains SUPPLIER's property and is immediately claimable until the full invoice amount for the hardware has been paid.
Article 29 - FINAL CLAUSE