General terms and conditions:
These terms and conditions are applicable to every offer or quotations of Service Provider in the matter of Services and are an integral part of every Agreement between Service Provider and Customer. Provisions or conditions established by Customer that deviate from, or that do not appear in, these Terms and Conditions are only binding for Service Provider if and to the extent they have been expressly accepted by Service Provider in Writing. Capitalised terms have the meaning as indicated in the first article.
Article 1. Definitions of terms used
In these conditions is intended by:
Service Provider: the company Cloud86, established in Drachten, The Netherlands and registered with the Chamber of Commerce under file number 74718444.
Service Provider Website: the website of Service Provider that can be reached via the domain https://cloud86.io/nl/
Subscription: the Agreement, whereby one or more of the parties commits itself for a certain period of time to constantly or over and over conduct performances (e.g., a hosting contract of 12 months).
Account: the right of access to a user interface, with which Customer can manage and configure (certain aspects of) the Services, as well as the configuration(s) and the files stored for Customer themselves.
Terms and Conditions: the provisions from the underlying document.
Customer: the natural person or legal person with whom Service Provider has concluded an Agreement. Also intended is the person with whom Service Provider enters into negotiations concerning, as well as his proxy(/-ies), representative(s), successor(s) in title and heirs.
Services: the products and/or services that Service Provider will deliver to Customer pursuant to an Agreement.
Materials: all works, such as websites and (web) applications, software, house styles, logos, folders, brochures, leaflets, lettering, advertisements, marketing and/or communication plans, concepts, pictures, texts, sketches, documentation, advice, reports, and other creations of the mind, as well as preparatory material thereof and files (whether or not coded) or data carriers on which the Materials are located.
Agreement: each agreement between Service Provider and Customer on grounds of which Service Provider provides Services to Customer.
Written: besides writings on paper also e-mail and communication by fax, on condition the identity of the sender and the integrity of the message are sufficiently established.
Applications with Increased Risk: applications whereby an error in the Services can lead to death or serious injury, serious environmental damage, or the loss of (personal) data with very elevated consequential damage. Examples of Applications with Increased Risk are: transport systems whereby an error may result in trains derailing or airplanes crashing; medical systems whereby an error may result in a patient getting no or the wrong treatment; systems that a substantial part of the population depends on for the allocation of crucial government services, such as digital identification systems; systems on which are stored (many) medical data or other special data in the sense of the General Data Protection Regulation, or information that is otherwise very sensitive.
Article 2. Conclusion of contract and Right of revocation
2.1 Customer can apply for the Services directly from the Website of the Service Provider. The Agreement arises at the moment of sending of the e-mail (whether or not generated automatically) of Service Provider, stating the confirmation and acceptance of the application.
2.2 Notice of right of revocation
Right of Revocation
Customers, who are consumers have the right to revoke this contract without giving reasons. The revocation period is fourteen days from the conclusion of the contract.
To exercise your right of revocation, you must inform us by means of a clear statement (e.g. a letter sent by post, fax or e-mail) of your decision to revoke this contract.
You can use the attached sample revocation form, but this is not mandatory. The revocation is to be addressed to:
Cloud86 B.V.
Lavendelheide 21-108
9202PD Drachten
telephone: +31 58 2038374
e-mail: info@cloud86.io
We will immediately send you a confirmation of receipt of such a revocation (e.g. by e-mail).
To comply with the revocation period, it is sufficient for you to send the notification of the exercise of the right of revocation before the expiry of the revocation period.
Consequences of revocation
If you revoke this contract, we shall reimburse to you all payments received from you, without undue delay and in any event not later than 14 days from the day on which we are informed about your decision to revoke this contract. For this repayment, we will use the same means of payment that you used for the original transaction, unless expressly agreed otherwise with you; in no case will you be charged any fees for this repayment.
If you have requested that the services should commence during the revocation period, you shall pay us a reasonable amount corresponding to the proportion of the services already provided by the time you inform us of the exercise of the right of revocation with regard to this contract compared to the total scope of the services provided for in the contract.
Sample revocation form
(If you wish to revoke the contract, please complete this form and return it to us).
To Cloud86 B.V., Lavendelheide 21-108, 9202PD Drachten, telephone: +31 58 2038374, e-mail: info@cloud86.nl:
I/we (*) hereby revoke the contract concluded by me/us (*) for the purchase of the following goods (*)/ the provision of the following service (*)
Ordered on (*)/received on (*):
Name of the consumer(s):
Address of the consumer(s):
Signature of the consumer(s) (only for notification on paper)
Date
(*) Delete where not applicable
2.3 If Customer is a consumer, the provision of Services is started, with the express consent of Customer, immediately after ordering. In this case, the Customer's right of revocation shall expire upon complete fulfilment of the contract. The customer has been expressly informed of this circumstance.
Article 3. Implementation of the Agreement
3.1. After the adoption of the Agreement, Service Provider will comply with it to the best of their knowledge and abilities, under observance of due diligence and professional skill.
3.2. Service Provider will exert themselves to realise qualitatively sound and uninterrupted availability of Services and the associated systems and networks, and to realise access by Customer to the data thereby stored. Service Provider does not provide any guarantees, however, regarding the quality of availability, unless established otherwise in the quotation by way of a Service Level Agreement (SLA) that is designated as such.
3.3. Delivery terms submitted by Service Provider always have an indicative purport, except where the applicable SLA sets terms that cannot be interpreted otherwise than as an undertaking stipulating results.
3.4. If and to the extent the proper implementation of the Agreement requires such, Service Provider has the right to have certain activities carried out by third parties. These Terms and Conditions are also applicable to the activities carried out by third parties in the context of the Agreement.
3.5. If such has been established, Service Provider will provide Customer with access to an Account. The Account will be accessible by entering a password and username. Every action that takes place by way of the Account of Customer or an Account created by Customer is deemed to have occurred under the responsibility and risk of Customer. If Customer suspects or should reasonably suspect or know that abuse of an Account is taking place, then Customer must report this as soon as possible to Service Provider, so they are able to take measures.
3.6. Service Provider will keep himself available for a reasonable level of customer support as a distance by phone and e-mail, during regular office hours, to the extent the applicable SLA does not establish otherwise.
3.7. All modifications to the Agreement, either upon request of Customer, or as a result of the fact that due to any circumstances whatsoever a different implementation is necessary, in case additional costs associated therewith are considered additional work, and to the extent less work results reduced work. Such are invoiced correspondingly to Customer.
Article 4. Obligations of Customer
4.1. Customer is obligated to do and refrain from anything that is reasonably necessary and desirable to enable the timely and correct implementation of the Agreement. Customer makes sure in particular that all data for which Service Provider indicates that they are necessary or of which the Customer should reasonably understand that they are necessary for the implementation of the Services, are timely provided to Service Provider. The term within which Service Provider must carry out the Agreement does not commence any sooner than after all data requested and required have been received by Service Provider.
4.2. If Customer knows or can suspect that Service Provider will have to take certain (additional) measures in order to comply with his obligations, then Customer will accordingly inform Service Provider without delay. This obligation applies, for example, if Customer knows or should foresee that an exceptional peak in the burdening of the systems of Service Provider will arise, that with any degree of probability might cause the unavailability of the Services. This applies all the more if Customer knows that Services will also be provided to others through the same systems as those used by Service Provider to provide Services to Customer. After warning, Service Provider will do his best to prevent the unavailability of the Services. Unless expressly established otherwise in Writing, all reasonable additional costs that are thereby incurred are first notified to Customer and billed to Customer unless Customer notifies the Service Provider that Customer does not wish to bear such additional cost, accepting that additional measures by the Service Provider will then not be undertaken or implemented.
4.3. Customer may in no event use the Services for Applications with Increased Risk.
4.4. If Customer requires any license or other permit from government bodies or third parties for the specific use he gives or aims to give to the Services, Customer must take care himself for the obtaining thereof. Customer guarantees vis-a-vis Service Provider that he possesses all licenses and/or permits that are required for the use of the Services by Customer.
Article 5. Rules of conduct and notice/takedown
5.1. It is prohibited to Customer to violate Netherlands or other legislation or regulations applicable to Customer or Service Provider or to infringe on the rights of others by using the Services.
5.2. It is prohibited (whether or not it is legal or not) by Service Provider to offer or distribute Materials by using the Services that:
5.3. The distribution of pornographic Materials by way of the Services is not permitted.
5.4. Customer refrains from hindering other customers or internet users or from causing damage to systems or networks of Service Provider or other customers. It is prohibited to Customer to start up processes or programs, whether or not via the systems of Service Provider, of which Customer knows or can reasonably suspect that such hinders or causes damage to Service Provider, his customers or internet users.
5.5. If in the opinion of Service Provider nuisance, damage, or a different risk arises for the functioning of the computer systems or the network of Service Provider or third parties and/or of the provision of services via the internet, especially through the excessive forwarding of e-mail or other data, denial-of-service attacks, poorly secured systems or activities of viruses, Trojans, and comparable software, Service Provider has the right to take all measures that he deems reasonably required to avert or prevent this risk. Service Provider may claim the costs that are reasonably concomitant upon these measures from Customer, if Customer can be said to be culpable with regard to the cause.
5.6. In case Service Provider receives a complaint regarding the violation of this article by Customer or concludes himself that this seems to be the case, Service Provider will inform Customer as soon as possible of the complaint or violation. Customer will give a reaction as soon as possible, after which Service Provider will decide how to act.
5.7. If Service Provider holds that a violation pertains, he will block access to the relevant Material, though without definitely removing this Material (unless this proves technically impossible, in which case Service Provider will create a backup). Service Provider will exert himself thereby not to touch on other Materials. Service Provider will inform Customer as soon as possible of measures taken.
5.8. Service Provider has the right at all times to report to the police of criminal acts that are identified.
5.9. Even though Service Provider strives to act as reasonably, diligently, and adequately after complaints about Customer, Service Provider is never bound to compensate damage as a result of measures as intended in this article.
5.10. It is permitted to Customer to resell the Services, though exclusively in combination with or as a part of the own products or services of Customer and without disclosing the name of Service Provider as a supplier or sub-contractor. Customer must safeguard Service Provider against all claims by his purchasers. Service Provider may also act unreservedly in case of violations of these terms and conditions by those purchasers.
Article 6. Application for domain names
6.1. Application for, the granting and the possible use of a domain name depend on and are subject to the effective rules and procedures of the relevant registering agencies, such as 'Stichting Internet Domeinregistratie Nederland' in case of .nl-domain names. The relevant agency decides on the granting of a domain name. Upon the application, Service Provider only has an intermediary role and does not give any guarantee that an application will be effectively granted.
6.2. Customer can only learn the fact of registration from the confirmation of Service Provider that states that the domain name requested has been registered. An invoice for registration costs is not a confirmation of registration.
6.3. Customer safeguards Service Provider against and indemnifies him for all damage that is related to (the use of) a domain name on behalf of or by Customer. This does not apply if Customer is a consumer and the damage is caused by a grossly negligent breach of duty by the Service Provider or by an intentional or grossly negligent breach of duty by a legal representative or vicarious agent of the Service Provider or damages arising from injury to life, body or health due to a negligent breach of duty by the Service Provider or an intentional or negligent breach of duty by a legal representative or vicarious agent of Service Provider. Service Provider is not liable for the loss by Customer of his right(s) to a domain name or for the fact that the domain name is applied for and/or obtained by a third party in the meantime, barring in the event of the wilful intent or deliberate recklessness of Service Provider.
6.4. Customer must observe the rules that registering agencies establish for the application, granting, or use of a domain name. Service Provider will refer to these rules during the registration procedure.
6.5. Service Provider has the right to render the domain name inaccessible or unusable, or to (let) place it in its own name in case Customer is demonstrably negligent with complying with the Agreement, though such exclusively for the duration that Customer is in default and exclusively after expiry of a reasonable term for compliance set forth in a written default notice.
6.6. In case of the rescission of the Agreement on account of non-performance of Customer, Service Provider has the right to cancel a domain name of Customer with due regard for a notice period of two months.
Article 7. Storage and data limits
7.1. Service Provider can establish a maximum for the quantity of storage space or data traffic per month that Customer may or is effectively able to use in the context of the Services.
7.2. Were Customer to exceed the effective limits, then Service Provider can convert, following the forwarding of at least one message of warning to Customer regarding the overrunning, the Subscription of Customer unilaterally into a Subscription that does accommodate the storage and data traffic.
7.3. No liability exists for the consequences of not being able to send, receive, store, or modify data if an established limit for storage space or data traffic has been exceeded. This does not apply if the damage is caused by a grossly negligent breach of duty by the Service Provider or by an intentional or grossly negligent breach of duty by a legal representative or vicarious agent of the Service Provider or damages arising from injury to life, body or health due to a negligent breach of duty by the Service Provider or an intentional or negligent breach of duty by a legal representative or vicarious agent of Service Provider.
Article 8. Rights of intellectual property
8.1. All rights of intellectual property to all Materials developed or provided in the context of the Agreement by Service Provider lie exclusively with Service Provider or his licensors.
8.2. Customer exclusively acquires the rights of use and authorisations that are explicitly granted in these Terms and Conditions, the Agreement, or otherwise in Writing, Customer will otherwise not multiply or disclose these Materials. The preceding finds exception if such right has unmistakably failed to be provided to Customer in an express manner. The release of the source code of Materials, however, is only obligatory at all times if so established explicitly.
8.3. Unless if and to the extent established otherwise in Writing, it is not permitted to Customer to remove or alter any indication regarding copyrights, brands, trade names, or other rights of intellectual property from these Materials, also including indications regarding the confidential character and non-disclosure of the Materials.
8.4. It is allowed for Service Provider to take technical measures to protect its Materials. If Service Provider has secured these Materials by way of technical protection, it is not permitted to Customer to remove or bypass this security, except if and to the extent the law establishes to the contrary in a mandatory manner.
Article 9. Prices
9.1. Unless it is expressly stated otherwise for an amount, and unless it regards a customer who is a consumer, all prices listed by Service Provider are exclusive of sales tax and other levies that are imposed by the authorities.
9.2. If a price is based on data provided by Customer and these data turn out to be incorrect, then Service Provider has the right to adjust the prices accordingly, also after the Agreement has already been adopted.
9.3. If the Agreement regards a Subscription, then Service Provider has the right at any time to adjust (increase or decrease) the rates applied to the inflation as established by the relevant price index of the national statistics institute of the Customer’s country of residence.
9.4. For price changes, the same conditions and procedures apply as for the modification of the Services and of these Terms and Conditions.
Article 10. Payment conditions
10.1. Service Provider will invoice the amounts owed by Customer to Customer. Service Provider may thereby issue electronic invoices. Service Provider has the right to bill amounts periodically owed prior to the delivery of the Services.
10.2. The payment term of an invoice is 14 days after receipt of the relevant invoice, unless otherwise stated on the invoice or established otherwise in Writing.
10.3. If Customer is in default, this entails the following consequences:
10.4. Unless Customer is a consumer, appeal by Customer to suspension, setoffs, or deductions is not permitted.
10.5. In case Customer does not comply with any obligation from the Agreement, Service Provider is entitled without any default notice, besides suspension of Services, to recover delivered goods, without prejudice to the right of Service Provider to the compensation of damage, lost profit, and interest.
Article 11. Liability
11.1. Service Provider is not liable in the context of the adoption or implementation of the Agreement, barring in the cases listed below, and for a maximum of the limits thereby indicated. In cases, however, in which the compensation arrangement in the SLA, constituting a sanctions clause, is applicable, disbursement thereunder replaces compensation for the damage effectively incurred that may arise as a result of the violation of the standards from the SLA.
11.2. The total liability of Service Provider for damage incurred by Customer as a result of an attributable shortcoming in complying by Service Provider with his obligations under the Agreement, expressly including as well any shortcoming in complying with a warranty obligation established with Customer, or due to unlawful action of Service Provider, his employees, or third parties deployed by him, is limited per event or a series of related events to an amount that is equal to the total of the fees (exclusive of VAT) that Customer will owe under the Agreement, or, if the Agreement has a duration of more than six (6) months, an amount that is equal to the fees that Customer has paid in the last six (6) months. In no event, however, the total fee for direct damage is limited to the foreseeable typical damage for the contract.
11.3. Service Provider is expressly liable only in respect of foreseeable and contract-typical damages.
11.4. The liability of Service Provider on account of attributable shortcomings in complying with the Agreement solely arises if Customer forthwith declares the default of Service Provider in Writing, thereby establishing a reasonable term to remedy the shortcoming and Service Provider after that term continues to fall short as well in complying with his obligations. The default notice must contain a description with the greatest possible detail of the shortcoming, so that Service Provider is able to respond adequately. The default notice must be received within 30 days after the discovery of the damage by Service Provider.
11.5. The exclusions and limitations intended in this article do not apply if and to the extent. the damage is caused by a grossly negligent breach of duty by the Service Provider or by an intentional or grossly negligent breach of duty by a legal representative or vicarious agent of the Service Provider. This also applies to the damages arising from injury to life, body or health due to a negligent breach of duty by the Service Provider or an intentional or negligent breach of duty by a legal representative or vicarious agent of Service Provider.
11.6. Customer is liable towards Service Provider for damage that has arisen due to an error or shortcoming that is attributable to him. Customer safeguards Service Provider against claims regarding non-compliance with the rules of conduct in these Terms and Conditions upon the use of the Services by or with permission of Customer. This indemnification also applies with regard to persons who, while not being employees of Customer, nevertheless have used the Services under the responsibility or with the permission of Customer.
Article 12. Force majeure
12.1. None of the parties can be compelled to comply with any obligation if a circumstance that lies beyond the control of parties and that upon conclusion of the Agreement could not or should not have been foreseen already, annuls any reasonable possibility of compliance.
12.2. By force majeure is intended (though not exclusively):
12.3. If a situation of force majeure lasts longer than three months, each of the parties has the right to rescind the Agreement in Writing. What has been performed already on grounds of the Agreement is settled proportionally in such case, without parties owing each other anything otherwise.
Article 13. Non-disclosure
13.1. Parties will treat all information they provide each other with before, during, or after the implementation of the Agreement with confidentiality if this information is marked as confidential or in case the receiving party knows or must reasonably suspect that the information was intended as confidential. Parties also impose this obligation on their employees, as well as on third parties deployed by them for the implementation of the Agreement.
13.2. Service Provider will not take cognisance of data that Customer stores and/or distributes via the systems of Service Provider, unless this is necessary for the proper implementation of the Agreement or Service Provider is obliged to do so pursuant to a legal provision or court order. In that case, Service Provider will exert himself to limit cognisance of the data as much as possible, to the extent this lies within his power.
13.3. The obligation of confidentiality remains effective as well after termination of the Agreement for any reason whatsoever, and specifically for as long as the providing party is reasonably able to appeal to the confidential nature of the information.
Article 14. Duration and cancellation
14.1. The duration of the Agreement is the period of time that is required to provide the Services. If the Agreement is a Subscription, it is entered into for a one-year term.
14.2. If a fixed term has been established for the Subscription, none of the parties may unilaterally terminate the Agreement before the term has expired, except in the event special grounds for cancellation pertain, as further described below. Each of the parties may cancel an Agreement entered into for an indefinite time with due regard for a notice period of 14 days.
14.3. Failing timely notice, a Subscription is converted after expiry of the first contract term into one for an indefinite time. Thereby, cancellation is possible at any time with due observance of a notice period of one month.
14.4. Service Provider may suspend or cancel the Agreement with immediate effect in Writing if at least one of the following special grounds applies:
14.5. If Service Provider suspends compliance with the obligations, he retains his entitlements from the law and the Agreement, also including the entitlement to payment for the Services that have been suspended.
14.6. If the Agreement is terminated or rescinded, the claims of Service Provider on Customer become instantly exigible. In case of the rescission of the Agreement, sums already invoiced for performances conducted remain due, without any obligation of annulment. In case of rescission by Customer, Customer may exclusively rescind that part of the Agreement that has not been carried out yet by Service Provider. If the rescission is attributable to Customer, then Service Provider is entitled to compensation of the damage that directly and indirectly arises as a result.
14.7. The right to suspension in the above cases applies for all Agreements concluded with Customer simultaneously, even if Customer is only in default with regard to a single Agreement, and without prejudice to the right of Service Provider to compensation of damage, lost profit, and interest.
Article 15. Procedure after termination
15.1. Upon termination of the Agreement, as a result of cancellation or rescission, Service Provider may immediately eliminate the Account of Customer and Service Provider will delete the data stored for Customer as soon as possible. Service Provider is not obliged in such case to provide a copy of such data to Customer.
15.2. The deletion of data stored for Customer always occurs without any special precautions to render the deletion irreversible. This means that 'delete' is pressed, for example, in a (standard) operating system.
Article 16. Hierarchy and modification conditions
16.1. Service Provider reserves himself the right to modify or supplement the Services and these Terms and Conditions. Modifications also apply with regard to Agreements that have already been concluded, with due observance of a term of 30 days after announcement of the modification.
16.2. Modifications are announced by e-mail to Customer, or through a different channel for which Service Provider can prove that the announcement reached Customer. Non-substantive modifications of minor importance may be implemented at all times and do not require notification.
16.3. If Customer does not want to accept a modification, Customer must communicate this within two weeks after announcement in Writing and in a motivated fashion to Service Provider. Service Provider subsequently can reconsider the modification. If Service Provider subsequently does not withdraw the modification, Customer can terminate the Agreement until the date on which the new conditions become effective against that date.
16.4. Provisions that regard specific Services prevail, if applicable, over general provisions that regard all services. Further arrangements between Service Provider and Customer only prevail over these Terms and Conditions if they are in Writing and if such has expressly been established, or unmistakably was the intention of both parties.
Article 17. Miscellaneous provisions
17.1. To the Agreement, Netherlands law applies. This does not apply to Agreements concluded with consumers. In these cases, the respective law of the country in which the respective consumer has his habitual residence applies.
17.2. To the extent it is not prescribed otherwise by the rules of mandatory law, all disputes that may arise in connection with the Agreement will be presented to the competent court of law for the district in which Service Provider is established.
17.3. If any provision from the Agreement turns out to be void, this does not affect the validity of the entire Agreement. Parties will in such case establish (a) new provision(s) in replacement, whereby as much as is legally possible the intent of the original Agreement and Terms and Conditions will be given shape.
17.4. Information and announcements, including price indications, on the Website of the Service Provider are subject to coding and typing errors. In case of any inconsistency between the Website and the Agreement, the Agreement prevails.
17.5. The logfiles and other records, whether or not electronical, of Service Provider form full proof of contentions of Service Provider and the version received or stored by Service Provider of any (electronic) communication counts as authentic, barring proof to the contrary to be provided by Customer.
17.6. Parties always inform each other without delay of any changes to name, mail address, e-mail address, phone number, and, if so requested, bank account.
17.7. Each party is only entitled to transfer its rights and obligations from the Agreement to a third party with the prior Written consent of the other party. Such permission is not required, however, in case of company takeover or of the takeover of the majority of the shares of the relevant party.
