General terms and conditions
Denit Internet Services B.V. GENERAL CONDITIONS, deposited at the Registry for the Amsterdam Courts, dated 21th September 2007 with reference number 147/2007
1. Definitions
1. Denit: hereafter used collectively for each of the companies of which one or more of the trading names of DENIT INTERNET SERVICES B.V. is applicable; for each of these companies the general conditions are applicable.
2. Customer: the person or legal representative with whom the agreement for the delivery of products and services by Denit is made.
3. Denit products and services: the products and services delivered by Denit such as for example web hosting, dedicated server hire, colocation, hire and registration of a domain, and all other supplementary and supporting products and services.
4. Agreement: the package of mutual rights and obligations that results from acceptance, by written or by e-mail consent, by Denit, of the order by the customer for delivery of one or more Denit products or services.
5. Network: the transmission equipment and, where applicable, the routing equipment and any other technical equipment that makes transfer possible by means of signals between connection points via cables, radio waves, optical means or other electronic means.
2. Applicability
1. As long as there is no mutual agreement between parties made up in writing, the following articles are applicable for every offer, order or Agreement from or with Denit.
2. General conditions of Customer and / or third parties are not binding for Denit and are not applicable.
3. Offering and Accepting
1. All offers and price quotation done by or on behalf of Denit are free of obligation, unless otherwise indicated by Denit in writing or by electronic mail.
2. A quotation or offer from Denit has a duration of 14 days, unless otherwise indicated.
4. Formation of an Agreement
1. An Agreement comes in to effect at the moment when an (on-line) order form and / or Agreement (for dedicated servers and co-location) has been completed and sent off by the Customer via e-mail / post / fax, and been accepted by Denit.
2. It leaves parties free to confirm the commencement of an Agreement by other means.
3. Additions and amendments to an Agreement only have a legal grounding if specified in writing.
5. Scope, duration and termination
1. The Agreement shall take effect from the start date of the service by Denit. The agreement has a term of one year, subject to written or electronic agreement to the contrary. The Agreement will be renewed automatically on expiry of the initial contract term, whatever it may be, for a period of 12 months, unless termination by operation of law as at contract term end date has been agreed in writing in so many words, because only then will the agreement end on the contract term end date. Each renewal will be followed by a further automatic renewal for 12 months, unless one of the parties has given notice at least two months before the end of the then current 12-month renewal period that it does not wish to renew the Agreement, in which case the Agreement shall end on the date that the current 12-month term ends.
2. The sub 1 above means that the non-extension is only legally enforceable if the notice is given on time and in writing by registered delivery, by fax or through our CRM system. By not respecting one or more of these conditions, the Agreement will be extended for a further 12 months, unless the other party agrees to accept the incorrect notice. The Customer is not permitted to cancel the Agreement prematurely during the current contract period.
3. Denit has the right to terminate the Agreement with immediate effect without notice of default or judicial intervention if the Client is declared bankrupt, has applied for or obtained court protection from creditors or has otherwise lost the right to dispose of its property. The Client does not then have any right to compensation. In the cases referred to in this Article Denit is entitled to retain hardware that is the property of the Client until there has been settlement in full of Denit’s claims. In the cases referred to in this paragraph Denit is also entitled to terminate the domain name registration of the Client’s website with SIDN and/or other domain name registration organisations and also to terminate retention of Client data.
4. Denit has the right to end the Agreement with immediate effect and without a legal intermediary according to article 16 if:
• The Customer makes improper use of the Internet;
• The Customer spreads information that is not in accordance with (inter)national law;
• The Customer spreads information that is not in accordance with the general accepted norms and values;
• The Customer spreads information that appears to discriminate against appearance, race, religion, gender, culture, origin or can be seen as harmful in any other way. The use of so-called adultpages/ MP3/ warez/ webcams on our shared hosting servers is also not permitted.
5. Denit’s services offered may only be used for purposes that are not contrary to the law, common decency, public order, net etiquette, the Agreement and these general terms and conditions. The following acts and practices are among those that are contrary to them, but not exclusively:
• spamming;
• committing infringements on copyright protected work(s) or tradings in any other way that are conflict with intellectual ownership rights of third parties;
• the spreading of child pornography;
• the use of racist slogans;
• the incitement of revolt;
• the access without permission to other computers on the Internet (= hacking), for which some security is breached and / or access is provided by a technical intervention with the use of false signals or a false key including when done using a false identity.
If the above tradings and behaviours are performed by the Customer then Denit has the right to end the Agreement with immediate effect and without the need for a legal intermediary, and without the Customer having any right to compensation for damages.
6. Delivery and delivery time
1. Services are provided as soon as possible after the formation of the agreement or at a later date to be agreed.
2. If the agreed time-scale is in danger of not being adhered to, this will be reported as early as possible.
3. A lead time of approximately 24 hours must be taken into account when applying for and registering a domain name, but this can extend to a few weeks and also depends in part on the NiC concerned.
7. Force majeure
1. In relation to the Agreement the term force majeure means everything that is understood in this regard in law and jurisprudence, including for example the failure to provide a service by a supplier of Denit or the failure to provide such service on time.
2. Denit is not bound by its obligations under the Agreement if fulfilment has become temporarily or permanently impossible as a result of force majeure. The Agreement can be dissolved by either party with immediate effect if and as soon as this force majeure lasts more than one month.
8. Data / e-mail traffic
1. The disc space and the data traffic that the Client is permitted depends on the package chosen and/or special agreements. Unused data traffic is not transferable to a subsequent period of time. Where the Client uses more than the agreed limit, Denit will charge the Client for this additional use. If additional use occurs more than incidentally, Denit is entitled to increase the Client’s package, such at the additional cost of that larger package compared with the package then applying to the Client. Denit has the right to place the Client’s account offline at any time if that account may be interfering with the other users of Denit’s systems because it is taking up too much bandwidth/disc space/data traffic and/or processor load, queries, etc. No claim can ever be made by the Client for compensation by Denit of damage, in whatever form or by whatever title or in whatever amount.
9. Obligations of the customer
1. The Customer can use the networks that are directly and indirectly linked to the Denit Network. In this case the condition that the Customer will adhere, as long as they provide access to the network of a third party, to the legal and controlling conditions that are valid at that moment and applicable for the use of that network.
2. It cannot be reasonably expected of Denit that the condition stated in term 1 is made known to the Customer.
3. The Customer safeguards Denit against each liability coming directly as a result of not adhering to term 1.
4. The Customer will not cause any disturbance to the functioning of the Denit network, third party network(s) and / or the connections between these Networks through (the content of) the data traffic or through an action and / or negligence by the Customer.
5. If Denit has reason to believe a threat arises that could affect the functioning of the Denit network and / or the provision of services to Denit clients such as, but not exclusively, through spam mail, open relay, portscan, or hacking by the Customer and / or as a result of the Customer in another way, Denit can give the Customer directions that must be carried out within the stated terms, or Denit can suspend its service and for example place the account and/or the Client’s server offline.
6. The Customer is immediately withdrawn without any further notice if the Customer appears to be directly responsible for a fault with the functioning of the Denit Network, other networks and / or the connections between these networks. No notice need be given of the changes, as stated in the previous term and / or in the case of (the content of) the data traffic or the trading and / or the negligence of the Customer.
7. Changes in the Customer’s details must be noted to Denit in writing by the Customer. If the Customer does not do this, the Customer is responsible for any possible damages that Denit incurs as a consequence.
8. The Customer is responsible for saving a recent version of its websites / users / databases itself. Denit is then also not responsible for the eventual loss of websites / users / databases caused by possible faults or such like.
10. Provision of services and maintenance
1. Denit will, as far as reasonably possible, make efforts to keep its services running 7 days a week and 24 hours a day, except for the time needed for maintenance work.
2. Denit will, as far as reasonably possible, make efforts to maintain and preserve its connections with other networks.
3. The Customer must report faults to Denit at once.
4. Denit does not guarantee in any way that the services that it delivers is suitable for any goal, neither does it give any guarantees other than those stated in the (written) Agreement or in these conditions.
5. The costs of solving the fault in the Service are the responsibility of Denit, unless;
• The Customer has used the Service irresponsibly;
• The Customer is in conflict with the Agreement or the General Conditions concerning the use of the service;
• The fault can be attributed to the Customer in another way.
In which cases the Client bears those costs.
11. Prices
1. All prices exclude VAT, unless otherwise stated.
2. Denit has the right to revise its charges. The Client will be notified of these changes not later than two months before they take effect by written or electronic notice to the Client and by publication on the Denit web site. In such a case the Client is entitled to terminate the Agreement – provided that this is done in writing – before the date of entry into force of the change, up to not later than 14 days before this entry into force.
12. Cancellation order by the Customer
1. If the Customer makes an order in writing and / or on-line, it is binding. If the Customer cancels a request for ordering a domain name registration before Denit has requested the ordered domain name or has moved , the Customer will incur a charge of 23.00 euro to Denit (excluding all valid set-up costs for the order). Cancellation of any agreement by the Customer for another service or product has no legal grounds.
13. Payment conditions
1. The Client’s payment obligation starts on the day that the Agreement is concluded. The payment relates to the period from the Agreement start date.
2. Payment needs to be made within 14 days from the date of invoice, in a way to be decided by Denit in which the value is declared. The moment of payment is the moment at which the money is received by Denit.
3. The relevant Agreement payment due excludes VAT and any other possible legal charges arising from legal regulations. Furthermore the Customer is liable for payments arising from these conditions.
4. Denit will send the Client a quarterly or annual invoice or an invoice for a number of years for the costs associated with the agreement. This invoice must be paid within 14 days by way of an direct debit or bank transfer. Individuals must always pay by direct debit. If the Client does not pay by direct debit, Denit will charge administration fees for each invoice. Contracts longer than one year are only possible on the basis of payment by direct debit.
5. If the Customer is late with payments beyond the term of 14 days, then the Customer automatically becomes liable without further notice. The Customer is charged interest of 1% per month, unless the legal interest is higher in which case the legal interest is valid. The interest on the owed amount will be calculated from the moment when the Customer is withdrawn until the moment that the full amount is settled.
6. Costs arising from a non or late payment of the invoice will be charged by Denit alongside the owed amount and any interest it incurs for the legal and administrative collection costs, including costs for lawyers, bailiffs and debt collection agencies.
7. If the Customer is of the opinion that the charges are not right, the Customer can make Denit aware of this within two weeks from the date of the charges. After receipt of this notice Denit will investigate the invoiced amount.
8. In the case of a direct debit the Customer must make sure there are sufficient funds in their account.
9. The customer is withdrawn from the time the Customer is not able to pay the owed charges or when these payments have not been received by Denit.
10. If amounts owed cannot be collected or are not received through the fault of the Client, Denit will charge delay interest, which is the same as statutory interest, which will be payable from the moment that the Client is in default until the moment of collection, and Denit is also entitled to suspend its service, for example, the placement offline of the Client’s account.
11. If a higher amount is accidentally collected, Denit will refund the overcharged amount at the first request of the Customer without delay.
14. Intellectual ownership rights
1. The Customer is permitted to download and use software for their own private use that is present on the Denit-site where there is no explicit indication of (intellectual) ownership rights or where there is explicit indication that it is permitted (so-called freeware).
2. The Customer must respect the intellectual ownership rights of the protected software and or other works (including amongst others so-called “shareware”) and safeguard Denit against any claim.
15. Ownership restrictions
1. Material produced by Denit is and remains the property of Denit.
16. Liability
1. Denit will make efforts to honour the agreed provision of services to the best of its ability by practising good technical mastery, in accordance with Denit agreeing to take the task on so the services can be expected in the agreed framework.
2. The obligation stated in term 1 implies an obligation for effort, because Denit is dependent on the cooperation, services and deliverables of third parties in its activities, where Denit can have no influence. Denit consequently accepts no liability for any damages including those related to Denit or the violation thereof regardless of whether the damages exist or become visible during the relationship with Denit.
3. Denit is only liable for damages which are a direct consequence of failure on the part of Denit to respect its Agreement, if the damages could have been avoided with normal technical knowledge and experience, and taking normal attention and work practises in to consideration.
4. The maximum amount for which Denit is liable for damages which are a direct consequence of failure on the part of Denit to respect its Agreement, is limited to the replacement compensation for damages, that is to say charges to the value of the remaining fee. The liability of Denit will never amount to more than Euro 500,000.00.
5. The maximum liability for Denit for business and / or personal damages will in no case amount to more than Euro 1,000,000.00 per case.
6. Every liability of Denit in any form other than damages is ruled out, including additional compensation for damages in whatever form, charges for indirect damages or consequential damage or damages as a result of deferred turnover or profit, missed savings and / or damages as a result of company stagnation.
7. The maximums stated in terms 4 and 5 are no longer applicable if the damages are a consequence of intentional or gross misconduct on the part of Denit.
8. The liability of Denit arising from accountable shortcoming in the honouring of the Agreement only exists if the Customer immediately and correctly brings it to attention in writing, reporting a reasonable term for the correction of the shortcoming and also if Denit continues to fall short of its obligations after that term has elapsed. The notice must have as detailed a description as possible of the shortcoming, so that Denit is in an adequate position to react.
9. A condition for the existence of any compensation for damages is always that the Customer reports the damages as soon as possible after their appearance in writing to Denit.
10. The Customer is responsible for making the relevant details correctly and completely available to Denit. Denit accepts no liability for damages caused by the incompleteness or incorrectness of any information supplied to them by the Customer. Denit always adheres to the Data Protection Act for its obligations concerning personal details supplied to Denit by the Customer.
11. The Customer safeguards Denit from any claims of compensation for damages that third parties might make as a result of the in any way unlawful or irresponsible use of the products and services delivered by Denit by the Customer.
12. Because there are a large number of connection points with human intervention on the Internet, and because of the use of local networks and wireless communication, the fact that the sending and receiving of information on the internet is fairly accessible must be taken in to consideration. Denit therefore accepts no liability for damages in any form caused by the sending and receiving of confidential or secret information. Denit is not liable for the security or misuse by third parties of details that are recorded.
13. Denit is not responsible or liable for the content of promotional material delivered by the Customer.
14. The Customer is liable for all damages that Denit might incur as a result of a shortcoming on the part of the Customer with regard to honouring the Agreement and / or arising from not honouring its obligations, such as described in article 9 of these conditions.
15. Denit accepts no responsibility for faulty software developed by third parties.
16. In the case of the placing of an own server in the Denit network (colocation) by the Customer, Denit is no way liable for any possible malfunctions in the hardware of the colocated server.
17. Transfer of rights and obligations
1. The parties are not entitled to assign their rights or obligations arising from an Agreement as a whole or in part to third parties without the prior written consent of the other party.
18. Decommissioning
1. Denit has the right to take delivered products and services out of use and / or to limit their use if the Customer does not honour its Agreement obligations according to Denit or trades in conflict with article 5, article 8, article 9 and / or article 13 of these general conditions. Denit will give the Customer advance notice of this, unless that cannot reasonably be expected from Denit. The obligation to pay the amounts due remains during decommissioning.
2. Denit accepts no liability arising from the decommissioning as intended in term 1 of this article.
3. Commissioning will occur when the Customer honours their obligations within the terms set by Denit and has paid the charge of Euro 25.00 (excl. VAT) for re-commissioning.
19. Advertising
1. The Customer is required to complain about any perceptible defects in writing at most 8 days after delivery, failure to do so will result in all claims against Denit becoming invalid.
2. Complaints concerning invisible defects are required to be made in writing by means of registered delivery within 8 days of the defect appearing, possibly having appeared or believing to have appeared. If this does not happen and claim against Denit becomes invalid.
3. If the complaint has grounds the delivered products or services will be adjusted, replaced or compensated for.
4. Complaints do not affect the Customer’s obligation to meet its obligations.
20. Upgrading / Downgrading shared hosting packages
1. Upgrading of shared hosting packages is possible at any time. Downgrading of shared hosting packages in the interim is not possible. Downgrading is only possible at the contract renewal date. The Client must ask Denit for downgrading in writing at least two months before the end of the then current contract period, failing which notification – in time – Denit is not obliged to accept this request.
21. Disputes and applicable law etc.
1. The judge in the location of Denit is authorized to take on a dispute except when involved in other dispute settlements, as long as no other over-riding law prevents it. Nonetheless Denit has the right to present the dispute to the judge in accordance with the Law.
2. Parties will only seek legal advise after they have first tried to resolve a dispute in mutual discussions.
3. Every Agreement between Denit and a Customer is subject to Dutch Law.
4. These conditions have been deposited at the Registry of the Amsterdam Courts. The latest deposited version is always applicable. In the case of there being conflicts between the Agreement, General Conditions and / or addendums, the order of precedence is the Agreement first, any addendums second and finally these General Conditions.
5. Denit has the right to change the General Conditions and Denit is furthermore entitled to make the changed General Conditions applicable to existing Agreements. The Customer distances itself from any right to refuse such changes in advance and to keep the valid General Conditions applicable.
6. In the case of any condition in these General Conditions becoming invalid or invalidated, the other conditions in these General Conditions remain enforceable. The Customer and Denit will attempt to reach a new agreement to replace the invalid and / or invalidated condition, where the objective and the purpose of the invalid and / or invalidated condition will be to taken in to consideration as much as possible.
7. It cannot be expected that Denit makes all the conditions, Legal or general or of another sort, that are valid at that moment for the use of a Network that directly and / or indirectly linked to the Denit network. The Customer will keep to these conditions and will safeguard and compensate Denit for every claim that comes as a result of not respecting the conditions.
© 1999 – 2011 Denit Internet Services B.V.
