Terms of Service

Proteon provides its Proteon and Firelay platforms and additional services under the terms and conditions set out below. We recommend that you read the terms and conditions carefully and save them so you can review them at a later stage.

The terms and conditions apply to both business customers and consumers, and in some cases, different terms and conditions apply to consumers than to businesses – these differences are clearly stated in these terms of service.

Please feel free to contact us at any time if you have any questions. Our contact details are listed at the bottom of this document.

History

Version Date Description of changes
2.1 2020/02/26
  • Added ‘Article 22.4‘ for handling fluctuations in currency exchanges rates
  • Added ‘Article 22.5’ indexation of prices
2.0 2019/10/15
  • Merged Firelay’s and Proteon’s terms of service in a single document
  • Updated all specific references to Firelay’s 2014 Platform to be applicable to the new container platform
  • Updated ‘Article 11. Support, Helpdesk and Consultancy’ to include a more clear description of the differences between support services and consultancy services.
  • Removed ‘Article 14. Customisation: development, acceptance and installation’ and ‘Article 15. Connection with third-party system’ as they were Firelay’s 2014 Platform specific.
1.3 2019/09/19
  • Sorted the version list from most recent to less recent
  • Applied visual enhancement on the definition list
  • Added ‘Article 6’ and other partnership related terms and terminology
1.2 2017/09/01
  • Added ‘Article 17.6. Use of Email entered
1.1 2016/11/20
  • Added ‘Article 26. Continuity and Escrow
  • Amended ‘Article 18.’ with the definition of Confidential
  • Amended ‘Article 20.’ to list illegal content only
1.0 2014/01/27
  • Initial version

Article 1. Definitions

  1. Account – the Client’s account, to be created and made available on the customer portal of the Website.
  2. Agreement – The contract between Company and Client under which Company will provide its services and of which the General Terms and Conditions form an inextricable part.
  3. Client – the natural person or legal entity acting in a professional or business capacity or otherwise with whom or with which Company signs the Agreement.
  4. Company – the supplier, Proteon Communications Builders bv, with its registered office at Zuid-Hollandlaan 7, Den Haag, the Netherlands, and registered with the Chamber of Commerce under number 27238455.
  5. Consultancy (Service) – a Service in which Company provides labour which costs are not part of, nor covered by any Agreement for subscription-based Services.
  6. Continuity Plan – Escrow Service that Client can additionally purchase.
  7. Consumer – Client solely in the capacity of a natural person not acting in a professional or business capacity.
  8. Customised Service – tailor-made solutions developed by Company or a third party engaged by the same on behalf of the Client, whereby ‘customised’ refers to the fact that an alternative is used to the Standard Service. Note that any Consultancy Service provided by Company is considered to be a Customised Service.
  9. Data – the information and content belonging to the Client and saved by the Client using a Company’s service. ‘Data’ specifically does not refer to the Company’s service and parts thereof, including the source code.
  10. Escrow Provider – a third party that may provide Escrow services to Client.
  11. Firelay – Company
  12. Platform – software services as provided by Company and described in the Agreement.
  13. Proteon – Company
  14. Service(s) – the service(s) provided by Company to the Client and specified in the Agreement, including, but not limited to, the Platform and related services.
  15. General Terms and Conditions – The terms and conditions relating to the Company’s Services as outlined in this document.
  16. Intellectual Property Rights – All intellectual property rights and related rights, including copyrights, trademark rights, patent rights, design rights, trade name rights, database rights and related rights, along with domain names and rights to knowhow.
  17. Liferay – open-source software provided under the Liferay name and detailed on http://www.liferay.com/.
  18. Materials – materials including, but not limited to, software applications, analyses, designs, documentation, reports, information and other data either subject or not subject to Intellectual Property Rights.
  19. Partner – independent software vendor, integrator or consultant that has signed a Partner Agreement with Company.
  20. Partner Agreement – Agreement to which next to Company’s General Terms of Service also Partner specific terms apply.
  21. Partner Container Cloud Environment – initially designated resources in a Kubernetes based cluster offered to Partner as part of the Partner Agreement.
  22. Partner Discount – a discount that Company applies to Partners when they purchase Services from the Company with the intention of reselling them to their clients.
  23. Partner Fee – any remuneration and payment that Partner is obliged to compensate Company for as part of the Partner Agreement.
  24. Partner Kickback Fee – compensation paid by Company to Partners for establishing Agreements between Company and Partners’ clients.
  25. Party/Parties – Client and/or Company.
  26. Quotation – the Written offer submitted by Company for a Customised Service. The offer describes, in any event, what is included in the Customised Service and what compensation will be payable upon acceptance. This offer forms part of the Agreement, provided that the Client has approved it in Writing.
  27. Service Desk – a division within Company that is aimed at providing support services to Clients.
  28. SLA – a Service Level Agreement in which the Parties agree on additional terms for supporting Services.
  29. Standard Service – the standard versions of Company’s Services as described on the Website.
  30. Websitewww.proteon.com or www.firelay.com
  31. Working Days – Monday through Friday from 9 a.m. to 5 p.m. (CE[S]T) excluding official Dutch public holidays (Whit Monday, Easter Monday, Christmas Day, Boxing Day, Ascension Day, King’s Day and New Year’s Day).
  32. (in) Writing/Written – print communications and electronic mail, provided the identity of the sender and the integrity of the email address have been sufficiently established.

Article 2. Applicability and interpretation

  1. The General Terms and Conditions govern the Agreement, the Service, including the Account (and the creation thereof), along with all Quotations and other offers made by Company.
  2. Amendments and additions to the General Terms and Conditions and/or the Agreement, whether initiated by the Client or otherwise, will be valid only if they have been agreed between the Parties in Writing.
  3. If any provision of the General Terms and Conditions is annulled or voided, the other provisions of the terms and conditions will remain in full force and effect. Company will replace the annulled or voided provisions with new provisions, whereby the purpose and meaning of the annulled or voided provision are matched as closely as possible.
  4. The records maintained by Company will take precedence, in the absence of proof to the contrary.
  5. In the event of a conflict between the various documents, the following order of precedence shall apply:
    1. Additional Written and signed terms;
    2. Quotation;
    3. Service Level Agreement;
    4. General Terms and Conditions.
  6. The headings above the articles are merely an indication, serving to improve the readability of this Agreement; they do not restrict the contents of the articles.

Article 3. Conclusion of the Agreement

  1. The Agreement relating to a Service, including the Standard Service is concluded once the Client has completed the online order process or at the time Company receives a signed Quotation from Client.
  2. For platform related Services a Client once it has created an Account, may use this Account to place an order for a specific Service by fully completing the order process and then once again expressly confirming its agreement with the order.
  3. Once the Client has confirmed an Order, Company will send an email confirming the Company Service to the email address provided by the Client.
  4. It is not possible to order Customised Services through an online order process. The Client can submit a request to this end to Company by email or by completing a form on the Website. Company may send a Quotation and/or request for additional information by email. The Client may accept the offer by email. Unless stated otherwise in the Agreement, the regulations set out in paragraph 1 of article 4 will apply. 

Article 4. Term and termination of the Agreement

  1. Agreement is entered into for the period specified in the order or in the Quotation. If no term is specified in the order or the Quotation, the Agreement is entered into for a period of 12 calendar months.
  2. If the Agreement is not terminated or is not terminated in good time, it will be tacitly agreed for the same period.
  3. Client shall be entitled to terminate an Agreement, subject to one calendar month’s notice upon expiry of the Agreement in Writing or online. The latter only if that option is available for that specific Service.
  4. Consumer shall be entitled to terminate the Agreement at any time after the initial tacit renewal. In that case, the termination will take effect on the first day of the next billing period or, if this period exceeds one calendar month, the following month on the day with the same number as the date of the day on which the Agreement was terminated. Previously made payments are reimbursed on a proportional basis.
  5. Company will be authorised to suspend or terminate the Agreement with the Client (excluding Consumers) without any notice of default or judicial intervention being required and without prejudice to Company’s right to compensation for loss, loss of profit and interest in the following events:
    1. If the Client fails to fulfil any of its obligations under the Agreement;
    2. If the Client is declared bankrupt;
    3. If the Client has been granted a moratorium;
    4. If the Client has ceased operations, or if the Client is a natural person if he or she is deceased.
  6. Redundantly: if Company decides to exercise its rights as described in paragraph 5 of this article, this shall never entitle the Client (excluding Consumers) to compensation in the event of any loss arising from suspension or termination.
  7. On the expiry of the Agreement, the following provisions will remain in force in any event:
    1. Article 17 Confidentiality;
    2. Article 20 Limitation of liability;
    3. Article 24 Dispute settlement.
  8. Termination of the Agreement by the Client (excluding Consumers) will never entitle the terminating party to reimbursement of previously made payments and/or a refund of previously invoiced payments.
  9. Company will be authorised to suspend or terminate a Partner Agreement at any time, without the obligation to suspend or terminate any other Agreements that got signed as part of, or during time the Partner Agreement was in place.

Article 5. Consumers: Right of redrawal

  1. During a period of 14 days calculated from the date on which the Agreement was concluded, a Consumer shall be entitled to terminate the Agreement without stating reasons.
  2. Consumers who wish to exercise this right of withdrawal should do so by sending an email to support@proteon.com or support@firelay.com, stating their name, specifying the Services involved, and indicating that they intend to exercise their right of withdrawal. Consumers also have the option to use the online standard right-of-withdrawal form.
  3. In that case, Consumers are only required to pay for the previously provided Service, possibly consisting of the fee for setting up the service; the fee for maintaining the service available online, and, if applicable: the fee for the Customised Service.

Article 6. Partners: Non-commercial uses

  1. The Partner will only use the Partner Container Cloud Environment, for non-commercial purposes.
  2. By using the Partner Container Cloud Environment Partner shall not perceive, receive, generate, benefit or create any income, revenue, data or any other consideration in connection with its use nor by any Content accessed through it.
  3. The Partner Container Cloud Environment is solely meant for personal discovery; external use is only allowed for demo purposes.

Article 7. Access and Account

  1. For some Services Client may be obliged to create an Account, or have an Account created in order to gain access to these Services; if the creation of an Account is required Client will provide all requested information accurately and truthfully.
  2. The Client is required to keep any data entered up-to-date in order to ensure that Company can use this data to reach the Client if this is necessary as part of the Service, for example for billing purposes.
  3. If the Client is not a Consumer, it is also required to enter its VAT number (along with other details).
  4. Once the data has been entered, Company will send a confirmation. If the confirmation includes a password, Company recommends the Client to reset the password with a strong password by using more than ten characters, including letters/capitals and punctuation marks.
  5. Some Accounts may be used to place orders, as described in Article 3 (‘Conclusion of the Agreement’).
  6. The Account and credentials may be used only by the Client linked thereto. Consequently, the Client is required to maintain this data for its own use and must never provide them to any third parties.
  7. Any action involving usage of the Client’s username and password is deemed to be taken at the Client’s responsibility and risk.
  8. In the event of suspected abuse of credentials, the Client shall notify Company as soon as possible; this shall not release it of its personal obligation to take immediate measures against any further abuse.
  9. Other login accounts may be provided for the purpose of the Company’s service. The Client is personally responsible for the related user name(s) and password(s) and the use thereof.

Article 8. Company’s Service

  1. A Company’s Service is specified in the Agreement.
  2. The Standard Service is provided in several different versions, as described on the Website. The Client will be entitled to scale up at any time during the term of the Agreement. During the term of the Agreement, the Client will not be authorised to scale back by one or more scales during the term of the Agreement. However, the Client will be authorised to scale back one or more scales if it enters into a new Agreement or if the Agreement is renewed if the Client announces this in a timely manner and complies with the notice period set. This must be done in Writing or, if available, by using the Client’s Account. 
  3. If the Client has requirements that are not covered by the Standard Service, it may inform Company of such requirements. In that case, Company may provide a Quotation for a Customised Service to the Client.

Article 9. Delivery

  1. On conclusion of the Agreement, Company will endeavour to provide the Company’s Service as soon as possible, unless otherwise agreed by the Parties.
  2. The Service will be deemed to have been provided if any of the following situations occur:
    1. The Client is using the Service;
    2. Company informs the Client that the Service is available;
    3. Company confirms in Writing or electronically that the Service has been provided.
  3. Any delivery terms specified by Company are always approximate unless it is expressly stated in Writing that a strict deadline is involved.
  4. Company will only be deemed to be in default after the Client has sent it a Written notice of default, also if a strict deadline has been agreed between the Parties.
  5. If the agreed delivery times or strict deadlines are not met due to any cause whatsoever, this shall not entitle any Party to compensation, including loss caused by delays. This exoneration does not apply to Consumers if this is deemed to be unreasonable.
  6. Within 7 calendar days following delivery of, or a delivery stage of, a Service, the Client will evaluate the Service and either approve it or reject it. If the Client has not rejected the results (in whole or in part) within this period based on agreed functional or technical specifications, these will be deemed to have been approved. The rejection must be supported by reasons. The rejection and the supporting reasons must be submitted in Writing or by email and addressed to Company.
  7. If the Client rejects a result or part thereof, as described in the foregoing paragraph, Company will endeavour to eliminate the reason for rejection as soon as possible by modifying the result or indicating, stating reasons, why the reason for the rejection is invalid. Once Company has completed the above, the result or the Service will be deemed to be accepted between the Parties.

Article 10. Provision of a Service

  1. Company guarantees that any Service is performed to the best of its ability with adequate care and workmanship.
  2. If and to the extent that this is required for the proper performance of a Service, Company reserves the right to have specific activities performed by third parties. The General Terms and Conditions also apply to any activities performed by third parties under the Agreement.
  3. The Client shall do, and refrain from, all that is reasonably necessary and desirable to enable the timely and proper performance of a Service.
  4. The Client shall ensure that all data and facilities of which Company has indicated that they are necessary or of which the Client ought reasonably to understand that they are required for the performance of the Service, are provided to Company in good time.
  5. If the Client encounters any difficulties in using a Service, it may request Company for assistance. This request may be subject to a charge; for further information, see Article 10, ‘Support and Helpdesk’.

Article 11. Support, Helpdesk and Consultancy

  1. Clients may request help from Company.
  2. Each request for help from Client is evaluated by Company and is handled as follows:

  3. The Service Desk is available by email via support@proteon.com and support@firelay.com, and by telephone via +31 85 88 88 250.
  4. Each request to the Service Desk is automatically assigned an ID (number), using the Company’s ticket management system. This ID will be quoted in all communications relating to the request.
  5. Company will endeavour to respond to a request to the Service Desk according to the metrics denoted in the SLA. 
  6. If a request is not covered by a purchased SLA, Company will make a Quotation for the work involved handling the Client’s request, in the form of consultancy and an additional Agreement.

Article 12. Best efforts

  1. Company endeavours to develop user-friendly, high-quality Services. However, Company does not guarantee that its Services will be free of error.
  2. Company provides its Services on a best-efforts basis, unless stated otherwise in the Agreement or SLA. While Company will endeavour to provide its Services to the best of its ability, it provides no guarantees regarding the availability and quality of its Services other than stated in the Agreement or SLA.

Article 13. Storage space, data traffic and working storage

  1. Company may set a maximum to the amount of storage space or data traffic the Client is entitled to use, or can effectively use, on a monthly basis in connection with the Services. The Client will not exceed the limits unless the Agreement expressly provides for the consequences of such a data overrun.
  2. If the Client nevertheless does exceed the limits, Company will notify the Client. If the Client once again exceeds the limit, Company will be authorised to impose excess data charges (based on its standard rates) in arrears for the data overrun.
  3. However, unless otherwise agreed between the Parties, Company will never be obliged to provide the facilities for the data overrun described above. Company will not be liable for the consequences of the inability to send, receive, store or modify data if an agreed limit for data storage or data traffic has been exceeded.

Article 14. Licensing of Intellectual Property Rights

  1. The Parties entitled to the Intellectual Property Rights associated with Company’s Services (or parts thereof) are Company and its licensors, including open-source licensors. The Client may request Company for a list of these licensors.
  2. The Client will only be granted the license granted to it in this article and/or under the Agreement.
  3. Company or its licensors will be authorised to set additional and/or alternative conditions for the use of specific Company Services.
  4. The Client will receive from Company and its licensors a non-transferrable license to use the Company service solely and exclusively as provided by means of the Company platform for the term of the Agreement, for the purpose of the Intellectual Property Rights associated with the Company Service or parts thereof.
  5. Using the Company platform and other Company Services, the Client will be entitled to provide its own service to third parties, either for commercial purposes or otherwise. However, this is permitted solely and exclusively if the Client adds functionality and look and feel to the Company Service.
  6. The Client will not be entitled to redeliver the Company Service or one or multiple parts thereof to third parties, either as a white label version or otherwise, unless otherwise agreed in a partnership agreement with Company.
  7. Company will manage all licenses relating to its Services, including any third-party licenses to be used by the Client, to the extent that these licenses are related to the Company’s Service, unless otherwise agreed between the Parties. Company indemnifies the Client against any third-party claims relating to incorrect licenses or licenses not belonging to Company, for the purpose of a Service as provided by Company. If software and, or materials were not placed on the Company’s platform by Company but rather by the Client and/or a third party, the indemnification naturally does not apply.
  8. The Client will not be entitled to copy any elements from, or make any modifications to, the Company’s platform, and, as such, it will not be authorised to access the source code for the Company’s Services.
  9. Reverse engineering of the Company’ Service or any part thereof is not permitted.

Article 15. Data exit plan

  1. The Client will remain the owner of, and maintain control over, any Data it saves using the Company’s Services.
  2. The Client may copy or move the Data itself.
  3. In addition, the Client will also be entitled to request Company for provision or deletion of the Data. Company will cooperate in this process at a charge, and solely if the Client has satisfied all its payment obligations pursuant to any agreement signed between the Parties. Company will determine the format in which the Data is to be provided.
  4. On the expiry of the Agreement, Company will retain the data for a period of 30 calendar days, unless the Client has requested for the Data to be deleted at an earlier date. On the expiry of the term, or earlier if a request for deletion was submitted prior to the expiry of the term, no request can be made for the provision of Data.

Article 16. Personal data protection and data security

  1. For the purpose of ist Services, Company will take data security measures, reasonably taking into account the sensitivity of the Personal Data and provided that the expenses associated with the security measures are not unreasonable.
  2. The Client will be entitled to develop an environment on Company’s Services which can be used to process Personal Data (among other things). However, this data processing and security will be at the risk and expense of the Client.
  3. Should the Client develop an environment which is used to process special personal data (as defined in the General Data Protection Regulation (GDPR)) and should the Client deem additional measures to be necessary, it can make a request to Company to this end. Company may make an offer to the Client (at a charge) but is not obliged to do so.
  4. Company will process the personal data provided in view of the performance of the Agreement.
  5. Should Company involve any third parties in the performance of the Agreement, it will ensure that the third party will take similar measures and that it will accept the same duty of confidentiality agreed between the Parties in Writing and will strictly comply with this duty of confidentiality.
  6. Company may send informative emails about its Services to the email addresses of or entered by the Client. Company will offer a means to unsubscribe from these emails.

Article 17. Confidentiality

  1. The Parties will maintain strict confidentiality with regard to the information they provide to the other party before, during or after the performance of the Agreement, if such information is marked as confidential or if the receiving Party knows or should reasonably suspect that the information provided was intended to be confidential. ‘Confidential’ implies that the information contained within is only intended for the parties which whom the information intentionally has been shared. The Parties shall also impose this obligation on their employees and on any third parties engaged by them for the performance of the Agreement.
  2. Company will be authorised to demonstrate to third parties that it is providing its Services to the Client in order to promote its Services.

Article 18. Maintenance of and modifications to Services

  1. Company will be entitled to take its systems, or parts thereof, including the Website, temporarily out of service for the purpose of maintenance, modification or improvement. Company will attempt to do this conform its SLA as much as possible and will endeavour to notify the Client of the scheduled downtime in a timely manner. However, Company will never be liable to pay any compensation for loss in connection with such downtime. 
  2. In case Client is using a multi-tenant Service, where Company’s systems are shared among multiple Clients, it may not be possible for Company to apply specific modification for the benefit of a single Client. Company will not be liable for any loss resulting from such modification to shared Services.
  3. Company will be authorised to modify its systems or parts thereof, including the Website, periodically in order to improve their functionality and correct errors. If a modification results in a significant change in functionality, Company will endeavour to inform Client accordingly. In the event of modifications that are relevant to multiple Clients, it is not possible to refrain from a specific modification for the Client alone. Company will not be liable to pay compensation for any loss resulting from such modification.
  4. In the event that a Company Service is unavailable due to malfunctions, maintenance or other causes, Company will endeavour to inform the Client of nature and expected the duration of the interruption.
  5. Company will endeavour to keep the software it uses up-to-date, according to its SLA. However, Company is dependent on its supplier(s) in this respect. Company will be authorised not to install specific updates or patches if, in its view, this is not beneficial for the proper provision of its Services.

Article 19. Indemnification and deletion or provision of data

  1. The Client, excluding Consumers, indemnifies Company against any third-party claims in relation to any data the Client has sent or stored using Company’s Services.
  2. Company will be authorised to intervene in the event that Company receives a report of any of the following:
    1. infringement on the copyright, trademark right, trade name right or other rights of the reporting party or other third parties;
    2. racist, hateful or discriminating statements;
    3. slander, libel, defamation or threats directed at the reporting party;
    4. infringement on the reporting party’s personality rights (including stalking);
    5. child pornography or other illegal content of a pornographic nature;
    6. cybercrime (i.e. hacking, viruses, etc.);
    7. unauthorised disclosure of personal data;
    8. acts or omissions that are in violation of laws and/or regulations, using Company’s systems.
  3. Such intervention, or the consequences thereof, as described in the foregoing paragraph, cannot be attributed to Company in any manner whatsoever.
  4. If Company receives a request to provide information, including, but not limited to, the provision of data, by an individual or organisation authorised thereto under the applicable laws and/or regulations, including, but not limited to, an investigator, Company will be authorised to honour such request. The Client may not hold Company liable for any loss it suffers due to the disclosure of information.
  5. Company will notify the Client of the provision as described in the foregoing paragraph, provided that this is not prohibited by the request or the authorised individual or organisation.

Article 20. Limitation of liability

  1. The limitation of liability included in this article does not apply to Consumers.
  2. Company’s liability for loss arising from attributable failure to fulfil the Agreement, or from an unlawful act or otherwise, is excluded.
  3. If Company’s liability as specified in the foregoing paragraph cannot be excluded, it will be limited for each event (a series of successive events is regarded as a single event) to compensation for direct loss suffered by the Client as a result of attributable failure by Company in fulfilling its obligations under the Agreement, expressly including any failure to comply with any guarantee obligation agreed with the Client or due to an unlawful act performed by Company, its employees or any third parties whose services it engages, to a maximum of the amount of the compensation paid following the invoice from Company as charged to the Client for the provision of Company’s Services during the quarter (three calendar months, based on a year divided into four quarters) in which the event causing the loss occurred.
  4. Company’s total liability for loss as a result of death or physical injury or for material damage to property shall under no circumstances exceed 50,000 euros per loss-causing event, whereby a series of related events will be deemed to be a single event.
  5. Company’s liability for indirect loss – including consequential loss, loss of profits, missed savings, damage to or loss of data (including business data) and loss resulting from business interruption – is excluded.
  6. With the exception of the cases specified in paragraphs 2 to 5 of this article, Company is not liable to pay any compensation whatsoever, irrespective of the ground on which an action to receive compensation might be based. The exclusions and limitations specified in paragraphs 2 to 5 of this article will be cancelled if and to the extent that the loss is the result of gross negligence or wilful misconduct on the part of Company’s management.
  7. Company’s liability arising from an attributable failure in the fulfilment of the Agreement shall only arise if the Client immediately and correctly sends Company a Written notice of default, whereby Company is given a reasonable period to remedy the failure, and Company has also continued to fail attributable in the fulfilment of its obligations on expiry of this period. The notice of default must contain as detailed a description of the failure as possible, so as to enable Company to provide an adequate response.
  8. Company will never be liable for any loss arising from force majeure. For further information, please refer to Article 21 (‘Force majeure’).
  9. The condition for any right to compensation is that the Client must report the loss to Company in Writing within 30 days after it has arisen.
  10. The Client indemnifies Company against any and all third-party liability claims arising from a defect in any Service provided by the Client to a third party and consisting in part of a Company service provided by Company. Furthermore, the Client will also indemnify Company against non-compliance with licenses on the part of the Client and/or any third parties.
  11. The Parties agree that Section 271 of Book 6 of the Dutch Civil Code and the elaboration of the provisions contained therein in the following articles, is excluded.

Article 21. Force majeure

  1. To the extent that ‘force majeure’ has a broader definition than the term ‘force majeure’ as defined by law (Section 75 of Book 6 of the Dutch Civil Code), this extension does not apply to Consumers.
  2. Neither Party will be required to fulfil any obligation, including any obligation of result, agreed between the Parties if it is prevented from doing so due to force majeure. Force majeure includes the following (list is not exhaustive):
    1. force majeure affecting Company’s suppliers;
    2. failure to adequately fulfil obligations of suppliers prescribed for Company by the Client;
    3. the defective property, equipment, software or third-party materials the use of which has been prescribed to Company by the Client;
    4. government measures;
    5. power outages;
    6. unavailability of internet connection, computer network or telecommunications facilities;
    7. DDoS and/or DoS attacks;
    8. war; and
    9. strike and industrial action.
  3. If a force majeure event exceeds a period of 90 days, either Party will be entitled to terminate the Agreement in Writing. Any services previously provided under the Agreement will then, in any event, be settled on a proportional basis, without the Parties owing each other anything if this arises from the force majeure event.

Article 22. Remuneration and payment

  1. Company will be authorised at any time, prior to performing or continuing the contract set out in the Agreement, to require that the Client provide adequate security to prove that it can and will satisfy its payment obligations.
  2. The fee payable for the Company service is specified in the Agreement and will be communicated before the order is placed.
  3. All Rates listed on the Website are stated both inclusive and exclusive of Dutch VAT. Rates for Services not provided to Consumers will be described exclusive of VAT.
  4. Client will compensate Company for any negative currency exchange rate fluctuations that may arise during the period the Agreement is valid, Company will notify Client about these negative fluctuations as they occur in Writing.
  5. Company is entitled to apply indexation to its pricing models and prices.
  6. Any one-off fees will be invoiced immediately on the conclusion of the Agreement.
  7. For term contracts, fees will be invoiced each calendar month, although this may be otherwise provided for in the Agreement.
  8. Invoices will be sent in electronic format and shall be paid within thirty (30) calendar days, calculated from the invoice date.
  9. If an invoice is not paid within thirty (30) calendar days, the collection process will be initiated, and the Client will automatically receive a demand for payment. If the Client then fails to make payment within the period specified in this demand for payment (i.e. thirty calendar days), it will be charged collection charges in accordance with the government-imposed scale for out-of-court collection charges (BIK). A minimum amount of EUR 40 was included in 2012.
  10. Besides charging collection charges, Company will be entitled to charge statutory interest if the Client fails to meet the invoice due date (i.e. after fourteen days). Company will be entitled to charge the Client (excluding consumers) statutory commercial interest.
  11. Partner Fees are invoiced annually and should be paid by Partner before the start of the period the invoice relates to.
  12. Partner is obliged to attend partner meetings at least twice a year to share user experiences, status, guidance and insights.
  13. To receive Partner Kickback Fees, Partner should send corresponding invoices to Company.
  14. Any Partner Discount will be applied by Company on an Agreement basis with Partner.
  15. Partner Kickback Fees and Partner Discounts never apply to third party services, licenses and products.

Article 23. Amendment of General Terms and Conditions

  1. Company reserves the right to amend and/or supplement the General Terms and Conditions.
  2. Any modifications shall also apply to previously concluded Agreements, subject to thirty days’ notice following notification of the amendment to the Client by electronic mail.
  3. If the Client refuses to accept an amendment to these General Terms and Conditions, it will be entitled to terminate the Agreement as of this date, through the Account or by electronic mail, until the date on which the new terms and conditions become effective.
  4. Minor changes and amendments arising from a change in legislation may be made at any time. In the event of such changes, Company will not be obliged to announce the changes in advance. Such changes will not entitle the Client to terminate the Agreement, as specified in paragraph 3 of this article.

Article 24. Dispute settlement

  1. The Agreement, the General Terms and Conditions, the use of the Website, the use of Company’s platform and the provision of Services are governed by Dutch law.
  2. If any dispute arises between the Parties in the performance of the Agreement, the Parties will first attempt to settle such dispute themselves. They have the option, for example, to use mediation services or refer the dispute to an independent third party.
  3. Unless otherwise prescribed under the rules of mandatory law and the Parties fail to reach agreement and they have made at least a reasonable effort to arrive at a solution, a Party or Parties may decide to refer the dispute to the competent court in the district of the District Court of The Hague (The Hague branch).

Article 25. Continuity and Escrow

  1. Company acknowledges that Clients have an interest in the continuous and uninterrupted use of the Company’s Services even in the event Company discontinues its business operations. To this effect, Company offers an independent Continuity Plan and Escrow service (at a charge) to Clients.
  2. The Escrow service option is a tri-party agreement between Company, Client and Escrow Provider where Company will deposit with the Escrow Provider essential information of the Client required for the continuous and uninterrupted use of the Company Service(s).  Escrow Provider will periodically verify the essential information and the Continuity Plan.
  3. Escrow Provider will provide the Client with an escrow certificate.
  4. Client will be entitled to request the performance of a purchased Continuity Plan if:
    1. Company discontinues its business operations without transferring its obligations under the Services Agreement to one or more third parties in a legally valid manner; OR
    2. Company is declared bankrupt or is granted a suspension of payments; OR
    3. after receiving proper notice of default, Company has remained in default for at least 30 days in the performance of its obligations under the Services Agreement or this Agreement; OR
    4. Company is unable for at least 120 days to perform its obligations under the Services Agreement or this Agreement as the result of a situation of force majeure; AND
    5. insofar as, based on objective standards, the continuity of Beneficiary’s use of the Company’s Service(s) is at risk.