Version 2.2 – 9 March 2020
SECTION A. GENERAL
1.1 In these General Terms and Conditions, the following definitions are used, both in the singular and in the plural form.
- Account: the right to access a user interface that enables the Customer to manage and configure the Services or certain aspects of the Services, as well as the configuration(s), and the files that have been stored on the Customer's behalf.
- Customer: the Party to whom i3D.net's offer is addressed, with whom i3D.net has entered into the Agreement or for whose benefit the legal act has been/is to be performed, on the basis of which Products are delivered and/or Services are provided to that party.
- General Terms and Conditions: these General Terms and Conditions, regardless of the form in which they are communicated (on paper or electronically, for example via the i3D.net Website).
- Colocation Hardware: all network equipment, computer equipment and other equipment or property installed in the Customer's colocation room.
- Services: all the work and other activities that are the subject of any offer, quotation, Agreement or other legal act in the relationship between i3D.net and the Customer.
- i3D.net: the companies i3D.net B.V., having its registered office and its principal place of business in Capelle aan den IJssel and registered with the Chamber of Commerce under file number 14074337, and i3D.net LLC, having its registered office and its principal place of business in Pasadena and registered with the Secretary of State Filing under number 201104310169.
- i3D.net Website: i3D.net's website, available at www.i3d.net.
- Materials: all works, such as websites and applications/web applications, software, corporate identities, logos, flyers, brochures, leaflets, lettering, advertisements, marketing and/or communication plans, drafts, images, texts, sketches, documentation, consultancy, reports and other creations of the mind, as well as the preparatory material thereof and the data carriers (whether or not decoded) on which the Materials are stored.
- Products: all movable property that is the subject of any offer, quotation, Agreement or other legal act in the relationship between i3D.net and the Customer.
- Agreement: every agreement between i3D.net and the Customer on the basis of which i3D.net delivers Products and/or provides Services to the Customer.
- In Writing/Written: paper documents, as well as electronic messages and messages sent using the ticket system, provided that the sender's identity and the integrity of the message have been sufficiently established.
- High-Risk Applications: applications in which a defect in the Services could lead to death or serious injury, serious environmental damage or loss of personal or other data resulting in significant consequential damage or loss. Examples of High-Risk Applications are: transportation systems in which a defect could result in derailing trains or aircraft accidents; medical systems in which a defect could result in a patient receiving no treatment or the wrong treatment; systems on which a substantial part of the population depends for obtaining services, such as the DigiD identification code in the Netherlands; systems storing (large volumes of) medical data or other special categories of personal data within the meaning of the General Data Protection Regulation, or other highly sensitive information that i3D.net identifies as being sensitive.
- Processor: the legal entity that processes personal data on behalf of the Controller.
- Controller: a natural person who or a legal entity, government agency, service or other body that, alone or jointly with others, determines the purposes and means of the processing of personal data.
2. Scope of the General Terms and Conditions
- 2.1 The General Terms and Conditions apply to and form part of all offers, quotations, Agreements and other legal acts, regardless of whether these are performed orally, In Writing or in any other form, with regard to i3D.net's delivery of Products and/or provision of Services to or for the benefit of the Customer.
- 2.2 The General Terms and Conditions also apply to Products and/or Services that i3D.net obtains from a third party, whether in full or in part, and resells to the Customer, whether in processed form or in unprocessed form, as well as to Products and/or Services that a third party delivers/supplies to the Customer in implementation of the offer, quotation, Agreement or other legal act on the instruction of i3D.net.
- 2.3 Any derogations from these General Terms and Conditions are only legally valid if i3D.net and the Customer have expressly agreed on these In Writing.
- 2.4 i3D.net expressly rejects the applicability of any general purchase conditions or other conditions of the Customer.
- 2.5 Insofar as any provision of these General Terms and Conditions is voided or declared invalid, the other provisions of these General Terms and Conditions will remain fully in effect. In such case, i3D.net and the Customer will consult on a new provision to replace the voided or invalid provision, taking the intent of the voided or invalid stipulation into account as much as possible.
3. Amendment of terms and conditions
- 3.1 i3D.net reserves the right to amend or supplement the Services and these General Terms and Conditions. Amendments also apply to Agreements that have already been entered into, subject to a notice period of 30 days following the announcement of the amendment.
- 3.2 Amendments will be announced on the i3D.net Website, by means of an email to the Customer or via another channel that allows i3D.net to reasonably prove that the Customer received the notice. Non-substantive minor amendments can be implemented at all times, without requiring notification.
- 3.3 In this context, it is expressly noted that amendments to the Services and these General Terms and Conditions in connection with applicable laws and regulations and all measures i3D.net reasonably considers necessary in this regard do not form a basis for early termination
- 3.4 If the Customer does not wish to accept an amendment, it must inform i3D.net thereof, In Writing, within two weeks of being informed thereof, stating reasons. This may give i3D.net cause to review the amendment. If i3D.net does not subsequently revoke the amendment, the Customer may terminate the Agreement, effective from the date on which the new terms and conditions take effect.
SECTION B. THE AGREEMENT
4. Offer, quotation and Agreement
- 4.1 All offers made by i3D.net are free of obligation, unless expressly indicated otherwise In Writing.
- 4.2 The quotations provided by i3D.net are valid for the time period stated therein. If no time period is stated, the quotation is valid for sixty (60) days after the date on which it was sent.
- 4.3 Agreements are formed when i3D.net accepts the Customer's Written assignment, or when i3D.net proceeds with carrying out an assignment.
- 4.4 If the Customer is a consumer, the Customer will have fourteen (14) days from the time the order is placed to terminate the Agreement In Writing and free of charge, unless the Customer expressly waives that right. i3D.net may reasonably charge the costs incurred during this term.
- 4.5 Unless expressly otherwise agreed In Writing, Agreements are entered into for a term of sixty (60) months. Interim termination is excluded.
- 4.6 At the end of the agreed period, Agreements are tacitly renewed for successive periods of twelve (12) months, unless otherwise agreed. For Services ordered via the automatic ordering process, the agreed period is tacitly renewed for successive periods of the same term, unless a timely cancellation of the Agreement is received (Article 21.5).
- 4.7 The Customer is not allowed to transfer the Agreement to a different entity without Written permission.
5. Risk and retention of title of Products
- 5.1 The risk of loss of or damage to Products that are the subject of the Agreement between i3D.net and the Customer transfers to the Customer when the relevant Products come under the actual control of the Customer or an auxiliary person.
- 5.2 All items delivered to the Customer continue to be the property of i3D.net until the Customer has paid all the amounts it owes i3D.net in connection with Products delivered by i3D.net, as well as the interest and costs owed in respect thereof as referred to in Articles 11.5 and 11.6, in full. Insofar as it has been expressly agreed In Writing that certain rights will be granted or transferred, these will always be granted or transferred under the condition that the associated fee is paid in full and on time.
- 5.3 i3D.net is authorized to suspend compliance with an obligation to hand over an item to the Customer until the Customer has satisfied the claim. In addition, i3D.net is authorized to invoke its right of retention against:
- a) third parties that have obtained a right in respect of the item after i3D.net's claim arose and the item came under its control;
- b) third parties with an older right, in the event that i3D.net's claim arises from an Agreement that the Customer was authorized to enter into with respect to the item, or i3D.net had no reason to doubt the Customer's authority.
6. Provision of Services
- 6.1 After the Agreement is formed, i3D.net will perform it to the best of its ability and with due care and professional competence.
- 6.2 i3D.net will make every effort to realize good and uninterrupted availability of the Services and the associated systems and networks, and to realize access to the details the Customer has stored through these. However, unless otherwise agreed in the quotation by means of a Service Level Agreement (SLA) that has been designated as such, i3D.net provides no guarantee with regard to the quality or availability.
- 6.3 Terms given for delivery of Products by i3D.net only serve as a guideline and are therefore never strict deadlines, unless expressly otherwise agreed In Writing.
- 6.4 If at least one of the following situations arises, the Service will be considered to have been "provided":
- a) when the Customer uses the Service;
- b) when the Customer pays for the Service;
- c) when i3D.net has confirmed delivery of the Service In Writing.
- 6.5 If and where required for the proper performance of the Agreement, i3D.net is authorized to have certain activities performed by third parties. Any unforeseen additional costs relating to the above will only be at the Customer's expense if this has been agreed upon In Writing in advance. These General Terms and Conditions also apply to the activities performed by third parties within the framework of the Agreement.
- 6.6 If this has been agreed upon, i3D.net will provide the Customer with access to an Account. The Account will be accessible by entering a password and a username. Each action performed by means of the Customer's Account or an Account created by the Customer is deemed to take place under the responsibility and at the risk of the Customer. If the Customer suspects or should reasonably suspect or know that the Account is being misused, the Customer must report this to i3D.net as soon as possible to enable the latter to take measures.
- 6.7 i3D.net will keep itself available for a reasonable level of remote customer support by telephone and email, during regular local office hours, as indicated on the i3D.net Website, insofar as the applicable SLA does not determine otherwise.
- 6.8 In the event that, in consultation with the Customer, the original Agreement between i3D.net and the Customer is derogated from, the resulting costs for additional work will be charged to the Customer at the prices and/or rates that apply at the time of execution.
7. Obligations of the Customer
- 7.1 The Customer is obliged to do everything that is reasonably required and desired to ensure that the Agreement is performed correctly and on time. In particular, the Customer will ensure that any data that i3D.net indicates is required or that the Customer may reasonably be expected to understand to be required for the provision of the Services is made available to i3D.net on time. The term within which i3D.net is required to perform the Agreement will not commence until all the data i3D.net has requested and requires have been received. This does not release the Customer from the payment obligation with regard to Products and/or Services i3D.net has already reserved in order to enable performance of the Agreement.
- 7.2 If the Customer knows or can assume that i3D.net will need to take additional or other measures to comply with its obligations, the Customer will inform i3D.net thereof without delay. This obligation applies, for instance, if the Customer knows or should anticipate that i3D.net's systems will be affected by an exceptional peak load, which in all probability could cause unavailability of the Services. This particularly applies if the Customer knows the systems i3D.net uses to provide Services to the Customer are used to provide Services to other parties as well. Upon receiving warning thereof, i3D.net will make every effort to prevent the Services from becoming unavailable. Unless expressly agreed otherwise In Writing, all reasonable additional costs incurred for this purpose will be charged to the Customer.
- 7.3 Without prior written permission, the Customer may under no circumstances use the Services for High-Risk Applications.
- 7.4 The Customer is allowed to resell the Services, though only in combination with or as part of the Customer's own Products or Services, and without revealing that i3D.net is the supplier or subcontractor. The Customer is to indemnify i3D.net against any claims, liability and consequential loss caused by its customers. i3D.net may also act to the full extent of its authority in the event that these customers violate these General Terms and Conditions, the Acceptable Use Policy, the Anti-Spam Policy and the data center regulations.
- 7.5 If the Customer requires any license or further consent from government authorities or third parties for the Customer's specific use or intended use of the Services, the Customer itself will ensure that it obtains this. The Customer guarantees towards i3D.net that it holds all the necessary licenses and/or consent for the Customer's use of the Services.
- 7.6 Any changes in the Purchase of software licenses, for example for Microsoft and RedHat, must be reported to i3D.net at all times. Any failure will be reported to i3D.net's suppliers, following which licenses can be revoked.
- 7.7 In the event that i3D.net agrees to advertise the Customer's IP addresses, the Customer is obliged to register these correctly in the RIPE database or another database on i3D.net's instruction, and to allow or create a route object that refers to i3D.net's network.
8. Relocation of the Service
- 8.1 The Customer acknowledges i3D.net's right to relocate the Services. This applies to both the physical room within a data center and to the Services that are offered by means of the data centers.
- 8.2 i3D.net will inform the Customer thirty (30) days before the relocation of the Services, In Writing, before this relocation takes place, unless this is not possible due to force majeure.
- 8.3 In the event that i3D.net chooses to change the location of the Services within the data center, the Customer needs to move its Colocation Hardware to the indicated location. The associated costs cannot be charged to i3D.net.
- 9.1 The Customer will provide the i3D.net employees working at the Customer's office for the purpose of delivering Products and/or providing Services all the support required to enable them to perform their work.
- 9.2 For as long as the relationship between the Customer and i3D.net lasts, as well as for one year after it has ended, the Customer will not be permitted to employ i3D.net employees, or have them work for it in any other way, directly or indirectly, without i3D.net's prior Written permission. In this connection, "i3D.net employees" must be understood to be persons employed by i3D.net or one of its affiliates, or those who were employed by i3D.net or one of its affiliates no longer than six (6) months ago.
SECTION C. INVOICING
10. Prices and rates, additional work
- 10.1 Unless expressly indicated otherwise In Writing, all the prices and rates stated by i3D.net are denominated in euros (€).
- 10.2 The Customer will at all times be independently responsible for paying the taxes, penalties and customs duties owed by it.
- 10.3 i3D.net is authorized to charge the costs associated with payments made using a digital payment method, such as – without limitation – iDeal, credit card and PayPal, on to the Customer.
- 10.4 Unless expressly indicated otherwise In Writing, all the prices stated by i3D.net are exclusive of turnover tax (VAT) and other levies imposed by the government, and exclusive of transport costs and delivery charges or travel and subsistence expenses.
- 10.5 If a price is based on information provided by the Customer and the information proves to be incorrect, i3D.net is authorized to adjust the prices accordingly, even after the Agreement has already been formed.
- 10.6 i3D.net is authorized to revise its prices and rates at any time. Unless it is expressly agreed In Writing that prices and rates will apply for a certain period of time, the announced price changes with regard to the delivery of Products and/or provision of Services will apply as of thirty (30) days after the announcement thereof.
- 10.7 If the Customer does not agree to a change in prices and/or rates announced by i3D.net, the Customer will have the right to terminate the Agreement with i3D.net, In Writing, within fourteen (14) days of the change being announced, effective from the date on which the announced change is to take effect.
- 10.8 Without this resulting in grounds for early termination of the Agreement, i3D.net is authorized to charge on the costs of:
- a) increased license costs of external software Products;
- b) use of Services above the agreed service levels and/or purchase of deviating quantities, for example with regard to the use of data traffic and energy consumption;
- c) costs arising from external factors over which i3D.net has no control – imposed levies, for example, such as digitax, energy tax and energy transmission costs.
- 10.9 In the event that, in consultation with the Customer, the original Agreement between i3D.net and the Customer is derogated from, the resulting costs for additional work will be charged to the Customer at the prices and/or rates that apply at the time of execution.
- 10.10 i3D.net reserves the right to increase all prices by a certain percentage on an annual basis, without prior notice. This percentage will not exceed five (5) percent or, if this is higher, a percentage equal to the increase in the consumer price index (CPI) – the official measure for the inflation of consumer prices in the Netherlands – for the year preceding that of the price increase. In this context, it is expressly pointed out that price increases arising from the indexation applied by i3D.net do not form a basis for early termination. The indexation is an integral part of the agreed price.
- 11.1 Unless payments are made through direct debit collection, the Customer must pay i3D.net's invoices within the payment term stated on the relevant invoice. Where an invoice does not state a payment term, a payment term of thirty (30) days applies.
- 11.2 All payments by the Customer to i3D.net will be deducted from the Customer's oldest outstanding invoices, regardless of any indication to the contrary by the Customer.
- 11.3 Any reliance by the Customer on suspension, set-off or deduction is not allowed.
- 11.4 i3D.net will at all times be authorized to require advance payment in part or in full in respect of the delivery of Products and/or the provision of Services, for example by means of a direct debit mandate given to i3D.net, and to suspend the delivery/provision until the advance payment is received. In addition, i3D.net is entitled to receive security for payment in a form to be indicated by i3D.net, such as a bank guarantee. In such case, i3D.net will only deliver the Products and/or provide the Services after the required security is obtained.
- 11.5 If the Customer fails to pay any of i3D.net's invoices within the payment term (Article 11.1), the Customer will automatically be in default, without any notice of default or demand being required. In such case, i3D.net will be authorized to charge statutory interest as referred to in Section 6:119 of the Dutch Civil Code or the late payment interest as referred to in Section 6:119a of the Dutch Civil Code on the outstanding amount, which will be charged per month or part of a month.
- 11.6 If, having been given notice of default, the Customer continues to fail to pay the amount owed, plus the statutory interest as referred to in Section 6:119 of the Dutch Civil Code or the late payment interest as referred to in Section 6:119a of the Dutch Civil Code, i3D.net may pass on the claim for collection. In such cases, in addition to the principal and the statutory interest as referred to in Section 6:119 of the Dutch Civil Code or the late payment interest as referred to in Section 6:119a, the Customer will be obliged to pay all extrajudicial expenses and any legal costs, which it will expressly owe in addition to any costs determined at law. These costs will amount to a minimum of 15% of the principal.
- 11.7 If the Customer fails to pay any of i3D.net's invoices within the payment term, i3D.net reserves the right to suspend the Service(s) with immediate effect. In the event that an invoice is passed on to a collection agency, the Customer will be liable for the costs imposed by the collection agency. Reconnection can take place after payment of all the outstanding amounts, which will be subject to a minimum charge of €250 excl. VAT.
- 11.8 i3D.net reserves the right to terminate the Agreement if the Customer fails to pay the outstanding amounts with regard to the Agreement on time. i3D.net will first give the Customer notice of default by sending a Written demand. No Written demand will be sent if a communication from the Customer suggests to i3D.net that payment will not be forthcoming.
- 11.9 In the event of late payment, the Customer accepts liability for all legal costs and extrajudicial expenses and interests charged by a third party engaged by i3D.net or the collection agency.
- 11.10 In the event that it reverses any i3D.net invoice paid by direct debit collection without objecting first, the Customer will owe i3D.net an amount of €50. If the Customer reverses the direct debit collection three times without objecting first, it will be charged €500 in administrative charges per reversal from the third reversal onwards. This amount is immediately due and payable.
- 12.1 Any objections the Customer has against an invoice from i3D.net or any amounts i3D.net has collected through direct debit must be reported to i3D.net within fourteen (14) days of the invoice date, In Writing, after which the Customer will be deemed to have accepted the invoiced or collected amount.
- 12.2 If the Customer is of the opinion that a Product delivered or Service provided by i3D.net does not meet the requirements the parties agreed on in respect thereof, the Customer must inform i3D.net thereof, In Writing, within fourteen (14) days of the delivery/provision, or within fourteen (14) days of the time at which the Customer could reasonably have become aware of the alleged failure.
SECTION D. SUSPENSION OF THE SERVICES
13. Taking out of service
- 13.1 i3D.net is authorized to temporarily take the Services provided out of service for the benefit of maintenance.
- 13.2 i3D.net is authorized to (temporarily) take the Services provided out of service if it receives an order, judgment or decision from a court, enforcement authority or other government institution.
- 13.3 i3D.net is authorized to (temporarily) take the Services out of service or limit the use thereof if the Customer fails to comply with an obligation towards i3D.net under the Agreement or acts in violation of these General Terms and Conditions, the Acceptable Use Policy, the Anti-Spam Policy and the data center regulations. i3D.net will inform the Customer of this, unless i3D.net cannot reasonably be expected to do so. The restriction imposed or the taking out of service is without prejudice to the Customer's other obligations and therefore has no suspensive effect.
- 13.4 Reconnection in accordance with Article 13.3 will take place once the Customer has complied with all its obligations and has paid the actual reconnection costs, subject to a minimum charge of €250 excl. VAT.
14. Rules of conduct, notice and takedown
- 14.1 The Customer is forbidden from using the Service to violate applicable laws and regulations, or to infringe the rights of other parties.
- 14.2 Regardless of whether this is legal, i3D.net forbids using the Services to offer or spread Materials that:
- a) are indisputably primarily intended to aid others in infringing the rights of third parties, such as websites that exclusively or mainly use hack tools or provide information on computer crime with the obvious intention of enabling the reader to commit a crime or making the reader commit a crime, rather than enabling the reader to defend against such crimes;
- b) are indisputably libelous, defamatory, insulting, racist or discriminatory or incite hatred;
- c) contain child pornography or bestiality pornography or obviously aim to assist others in locating such Materials;
- d) violate the privacy of third parties, which in any case includes but is not limited to distributing third-party personal data without permission or necessity, or repeatedly harassing third parties with unwanted communications;
- e) contain hyperlinks, torrents or references to (the location of) material that indisputably infringes copyright, neighboring rights or portrait rights;
- f) contain unsolicited commercial, charity-related or ideals-related communications;
- g) contain malicious content, such as viruses or spyware.
- 14.3 The Customer will refrain from hindering other Customers or Internet users or inflicting damage on the systems or networks of i3D.net or other Customers. The Customer is forbidden from starting up processes or programs via i3D.net's systems or otherwise that the Customer is aware or may reasonably assume will obstruct or inflict damage on i3D.net, its Customers or Internet users.
- 14.4 If, in the opinion of i3D.net, the operation of the computer systems or i3D.net's network or third-party networks and/or service provision via the Internet is hindered, damaged or otherwise at risk, in particular due to the transmission of excessive amounts of email or other data, Denial-of-Service attacks, inadequately secured systems or virus activities, Trojan horses and similar software, i3D.net is authorized to take all reasonable measures it deems necessary to avert or prevent such risk. If the Customer can be blamed for this, i3D.net may charge the costs that are reasonably associated with these measures to the Customer.
- 14.5 If i3D.net receives a complaint about the Customer having acted in violation of this article, or independently comes to the conclusion that this appears to be the case, i3D.net will inform the Customer of the complaint or violation as soon as possible. The Customer will respond as soon as possible, after which i3D.net will decide on the measures to be taken.
- 14.6 If i3D.net is of the opinion that Articles 14.1 and 14.2 have been violated, i3D.net will block access to the relevant Material, though without removing this Material definitively, unless this proves to be technically impossible, in which case i3D.net will safeguard this Material to comply with applicable laws and regulations. i3D.net will endeavor to make sure that this does not affect other Materials. i3D.net will inform the Customer of the measures taken as soon as possible.
- 14.7 i3D.net will at all times be authorized to report any criminal acts discovered. In addition, i3D.net is authorized to provide the Customer's name, address and other identifying data to a third party that has complained that the Customer has infringed its rights or has violated these General Terms and Conditions, provided that the accuracy of the relevant complaint is sufficiently plausible and the third party has a clear interest in being provided with these data.
- 14.8 While i3D.net endeavors to act with due care and as reasonably and adequately as possible following complaints concerning the Customer, i3D.net can under no circumstances be held liable for damage or loss arising from the measures referred to in Articles 13.2, 13.3 and this article.
SECTION E. INTELLECTUAL PROPERTY
15. Intellectual property rights
- 15.1 All intellectual property rights to all of the Materials developed or made available by i3D.net as part of the Agreement are vested exclusively in i3D.net or its licensees.
- 15.2 i3D.net or its licensors hold all intellectual property rights to all of the software, analyses and designs, as well as to preliminary material thereof, that is developed or made available within the framework of the Service.
- 15.3 The Customer will exclusively acquire the user rights and powers expressly assigned In Writing under these General Terms and Conditions, the Agreement or otherwise, and the Customer will not reproduce these Materials or make these public in any other respect. An exception to the above will be made if i3D.net has indisputably erroneously failed to assign such right to the Customer in an explicit manner. However, i3D.net will at all times only be required to provide the source code of Materials if this is expressly agreed upon.
- 15.4 Unless this has been agreed otherwise In Writing, the Customer is forbidden from removing or modifying any references relating to copyrights, trademarks, trade names or other intellectual property rights with regard to these Materials, including references relating to the confidential nature and secrecy of the Materials.
- 15.5 i3D.net is permitted to take technical measures to protect its Materials. If i3D.net has protected these Materials using technical safeguards, the Customer is not permitted to remove or circumvent such protection, except if and to the extent that mandatory law provides otherwise.
SECTION F. INFORMATION PROVISION
16. Provision of data by the Customer
- 16.1 The Customer will always provide i3D.net, on time, with any and all data requested by i3D.net and any other information that is required for the delivery of the Products and/or provision of the Services.
- 16.2 The Customer guarantees that the information referred to in Article 16.1 is correct and complete, and that it is authorized to provide that information to i3D.net for the benefit of the delivery of the Products and/or provision of the Services. The Customer indemnifies i3D.net against any third-party claims in this regard.
- 16.3 If the Customer provides data to i3D.net that can be considered personal data, the Customer guarantees that, with regard to that data, the laws that apply with regard to the protection of personal privacy at the time of the provision are complied with, and i3D.net's use and processing of the data is permitted. The Customer indemnifies i3D.net against any third-party claims in this regard.
- 17.1 i3D.net's Services can be used to process personal data. In this context, i3D.net acts as the Processor within the meaning of the General Data Protection Regulation. The Customer is the Controller. The Customer indemnifies i3D.net against any claims from interested parties pursuant to the above act.
- 17.2 A processing agreement setting out additional safeguards with regard to the processing and security of personal data forms an integral part of the Agreements between the Customer and i3D.net. This processing agreement has been included with these General Terms and Conditions as Appendix 1.
- 18.1 The Parties will treat the information that they provide each other before, during or after the performance of this Agreement as confidential if such information has been marked as confidential or the receiving Party is aware or should reasonably assume that the information was intended to be confidential. The Parties will also impose this obligation on their employees, as well as on any third parties engaged by them for the purpose of performing the Agreement.
- 18.2 i3D.net will not access the information stored by the Customer and/or distributed via i3D.net's systems unless this is required for the proper performance of the Agreement, or if i3D.net is obliged to do so pursuant to a legal provision or an injunction. In such case, i3D.net will undertake to limit access to the information as much as possible, to the extent that this is within its power.
- 18.3 The duty of confidentiality also remains in force after termination of the Agreement for whatever reason, and for as long as the Party providing the information can reasonably claim that the information is confidential in nature.
SECTION G. LIABILITY
19. Liability of i3D.net
- 19.1 i3D.net's statutory liability in connection with an attributable failure in the performance of the Agreement that consists of a failure to comply with the obligations under i3D.net's Service Level Agreement is limited to the penalty regime as contained in this Service Level Agreement.
- 19.2 i3D.net is not liable for:
- a) any loss or personal injury suffered by the Customer or its employees, customers, representatives or auxiliary persons, except where such loss or personal injury is a direct consequence of gross negligence or willful misconduct on the part of i3D.net;
- b) the contents of any information and/or communication that is sent through the Products and/or services, or for any information or content sent via the internet;
- c) the content of any information and communication, in any form, that the Customer sends via the network;
- d) the correctness or quality of the information obtained via the Services;
- e) damage to or loss of some or all of the Customer's data or one or more of their databases or the loss of technology, unless this damage is a direct consequence of gross negligence or willful misconduct on the part of i3D.net;
- f) damage to, destruction of or loss of Colocation Hardware, unless such damage or loss is a direct consequence of gross negligence or willful misconduct on the part of i3D.net;
- g) loss that is a direct or indirect consequence of the Customer acting in violation of one or more of its obligations under the Agreement;
- h) loss that is a direct or indirect consequence of incorrectness of the information provided by or on behalf of the Customer;
- i) damage to or destruction or loss of Colocation Hardware and data or databases as a direct or indirect consequence of the actions of a court, enforcement authority or other government institution;
- j) loss that is a direct or indirect consequence of the suspension of Services by i3D.net, as referred to in Articles 13, 14 and 20;
- k) loss that is a direct or indirect consequence of the customer portal being offline or otherwise unreachable, temporarily or otherwise;
- l) loss that is a direct or indirect consequence of the Customer using software not made available by i3D.net, such as the customer portal or the API (application programming interface);
- m) loss that is a direct or indirect consequence of a Denial-of-Service (DDoS) attack or other attack causing a peak in data traffic, or loss caused by one or more successful or unsuccessful hacking attempts, regardless of whether this Service is protected or managed by i3D.net;
- n) any loss insofar as this is covered by insurance taken out by or for the benefit of the Customer.
- 19.3 i3D.net's statutory liability in connection with an attributable failure to comply with the Agreement, other than the obligations contained in the Service Level Agreement, is limited to the amount that, in the relevant case, is paid out by i3D.net's general liability insurance, which liability will under no circumstances exceed the amount of the fee stipulated for the relevant Agreement. In the case of an Agreement with a term of more than one year, the stipulated fee will be the total of the fees stipulated for the year in which the failure takes place.
- 19.4 "Direct loss" refers exclusively to the costs reasonably incurred by the Customer in remedying or resolving i3D.net's failure in such a way that i3D.net's performance complies with the terms of the Agreement, as well as the reasonable costs involved in preventing or limiting such loss and the reasonable costs involved in establishing the cause and extent of that loss. If i3D.net and the Customer have expressly agreed on a binding delivery term In Writing, the costs the Customer has reasonably incurred in having to take measures in connection with i3D.net's failure to deliver within the agreed binding delivery term, less any savings, will be considered direct loss as well.
- 19.5 Any liability of i3D.net for indirect loss – including but not limited to consequential loss, lost profit and lost sales – is excluded.
- 19.6 In order to qualify for compensation, the Customer must meet two conditions. The loss must be reported to i3D.net, In Writing, within thirty (30) days of the discovery thereof. The loss must be proved through unambiguous evidence within sixty (60) days of being reported
- 19.7 The Customer indemnifies i3D.net against third-party claims concerning non-compliance with the rules of conduct when the Services are used by or with the consent of the Customer, and will hold i3D.net completely harmless in respect thereof.
20. Force Majeure
- 20.1 i3D.net will not be considered to have failed attributably in the event of force majeure.
- 20.2 Rather than reinstating the Service, i3D.net may select replacement comparable service providers for the provision of these Services.
- 20.3 Force majeure includes but is not limited to: failures of public infrastructure that is normally available to i3D.net and on which the provision of the Services is dependent, but over which i3D.net has no actual control or in respect of which i3D.net cannot rely on a contractual obligation to perform, such as the operation of – for example – the IANA, RIPE or SIDN registers and all Internet networks with which i3D.net has not entered into a contract; failures of the i3D.net infrastructure and/or Services caused by computer crimes, such as DOS or DDOS attacks or successful or unsuccessful attempts to circumvent network security or systems security; failures on the part of i3D.net's suppliers, which i3D.net could not have foreseen and for which i3D.net cannot hold its supplier liable, for example because force majeure (similarly) applied to the relevant supplier; defective items, equipment, software or other source material, the use of which the Customer has prescribed; government measures; strikes; wars; terrorist attacks and internal civil commotion.
- 20.4 If the period of force majeure has lasted longer than sixty (60) consecutive days, the Customer will have the right to terminate the Agreement extrajudicially, In Writing, without this resulting in i3D.net being obliged to compensate the loss the Customer incurs as a result of that termination in any way. i3D.net is entitled to payment by the Customer of all the Products and/Services that were already delivered/provided at the time of the termination.
SECTION H. TERMINATION
- 21.1 Each party is authorized to terminate this Agreement extrajudicially if the other party fails attributably in the compliance with essential obligations under the Agreement, and – having been given proper Written notice of default – does not remedy this failure within a reasonable term. Termination does not release the Customer from any payment obligation with regard to Products and/or Services i3D.net had already delivered/provided at the time of the termination, unless i3D.net is in default with regard to a certain Product or Service.
- 21.2 i3D.net is authorized to terminate the Agreement with immediate effect, without any further notice of default being required and without this resulting in i3D.net being liable to pay the Customer compensation, if the Customer has been granted a provisional or definitive moratorium, the Customer's bankruptcy is petitioned for, all or a portion of the Customer's assets are attached, the Customer's company is wound up or its business is discontinued, or if the Customer acts in violation of national or international laws and regulations or has provided false data to i3D.net.
- 21.3 i3D.net is authorized to terminate the Agreement within thirty (30) days of receiving a written confirmation that the lease of any space in which the Services are provided is being terminated or is about to expire, without this resulting in it being liable to pay the Customer compensation.
- 21.4 Immediately after the Agreement is terminated, for whatever reason, the Customer will stop using the Products and/or the results of Services made available and will return all copies of software, documentation and other Materials that have been made available to the Customer within the framework of the Agreement.
- 21.5 Unless otherwise stated in the Agreement, the Agreement must be terminated In Writing, subject to a notice period of three (3) months, effective from the end of the agreed period. The notice period starts after i3D.net receives Written confirmation of the termination. Unless otherwise agreed, Services ordered via the automatic ordering process are subject to a notice period of one (1) month. A custom quotation/invoice is subject to a notice period of three (3) months. Upon termination, the customer number and the customer name must be indicated. In addition, the termination must be signed by the legal representative. Termination before the end of the term is not possible.
- 21.6 Unless the Customer can be considered a consumer, Sections 6:227b, subsection 1, and Section 6:227c of the Dutch Civil Code do not apply to the Agreement.
22. Procedure upon termination of the agreement
- 22.1 After the Agreement has ended, whether through termination or cancellation, i3D.net may deactivate the Customer's Account immediately. The Account will not be deleted. Unless otherwise agreed, i3D.net is not obliged to provide the Customer with a copy of the relevant data in such case. The Customer is personally responsible for safeguarding the Materials before the Agreement is terminated.
- 22.2 After termination of the Agreement:
- a) i3D.net will stop providing the Services;
- b) i3D.net will be authorized to remove and delete all the Customer's data and all the data of the Customer's end users from the i3D.net Products, including dedicated hardware Products.
- c) i3D.net will be authorized to make dedicated hardware Products and colocation room available to other Customers;
- d) i3D.net will add up all the outstanding invoices on the date of termination, which amounts will become immediately due and payable;
- e) subject to Article 22.4, the Customer will remove all Colocation Hardware from the data center and transfer the colocation room to i3D.net in the state it was in at the start of the Service;
- f) the Customer will transfer the registered domains that were purchased from i3D.net to another registrar.
- 22.3 If the Customer does not remove the Colocation Hardware within five (5) working days, in accordance with Article 22.2e, i3D.net may remove, retain or return all Colocation Hardware to the Customer at the Customer's expense, without being liable for the loss suffered as a result. In such case, the Customer will owe i3D.net a penalty equal to one month's worth of Colocation Service(s) for each month or part of a month in which the Customer failed to remove the Colocation Hardware.
- 22.4 i3D.net is authorized to retain the Colocation Hardware for up to ninety (90) days after termination of the Agreement until any outstanding invoices have been paid, without being liable for the loss suffered as a result. After this term, i3D.net will be authorized to sell the Colocation Hardware insofar as this is required to set off all outstanding invoices, for the price i3D.net receives for this on the open market.
- 22.5 If the Customer is the owner of IP addresses advertised by i3D.net, these will not be released until the outstanding invoices have been paid.
- 22.6 If the Customer does not transfer the registered domains within five (5) working days of termination of the Agreement, in accordance with Article 22.2f, i3D.net will be authorized to deregister or cancel the domain without this resulting in any obligation towards the Customer.
SECTION I. OTHER PROVISIONS
23. Final provisions
- 23.1 The offers, quotations, Agreements and other legal acts concerning i3D.net's delivery of Products and/or provision of Services are subject to Dutch law.
- 23.2 Insofar as mandatory statutory provisions do not provide otherwise, all disputes between i3D.net and the Customer that arise from or relate to the offers, quotations, Agreements and other legal acts concerning i3D.net's delivery of Products and/or provision of Services will exclusively be submitted to the competent court in the district of Rotterdam.
- 23.3 Any information and announcements on the i3D.net Website and Materials, including price indications, may be subject to programming and typing errors. In the event of any inconsistencies between the Website and the Agreement, the Agreement will prevail.
- 23.4 Subject to evidence to the contrary to be submitted by the Customer, the log files and electronic or other i3D.net administrative records constitute conclusive evidence of i3D.net's statements, and the version of any electronic or other communication received or stored by i3D.net is considered authentic.
- 23.5 The Parties will at all times inform each other immediately, In Writing, of any relevant changes in name, postal address, email address, telephone number and, if requested, bank account numbers.
- 23.6 i3D.net is unilaterally authorized to assign its rights and obligations under the Agreement to a third party or one of its affiliates that takes over the Service or the relevant business activity from i3D.net. i3D.net will inform the Customer of this.
- 23.7 Terms and periods referred to in these General Terms and Conditions are determined on the basis of Dutch local time.
- 23.8 i3D.net is authorized to inform third parties that i3D.net provides Services to the Customer – for example in the form of a customer case (case study) of the Customer – during sales activities, third-party events, in marketing and sales communication and on the i3D.net Website, without requiring the Customer's permission.
Version 1.0 | 2018
Please note that the Dutch version of the General Terms is binding. The English General Terms are a free translation of the Dutch ‘Algemene Voorwaarden’.
Article 1 Definitions
In the present General Terms, the following definitions are applicable in singular as well as in plural.
1.1 General Terms: the present General Terms, regardless of the form in which they are presented (on paper or electronically, e.g. through the i3D.net website).
1.2 i3D.net: company and place of business established in Rotterdam.
1.3 Instructing Party: party to whom i3D.net’s offer has been directed, with whom i3D.net has reached an agreement or for whom the legal act takes place, on grounds of which Products or Services are delivered to this party.
1.4 Products: all moving things which are the object of any offer, agreement or other legal act in the frame of the relationship between i3D.net and the Instructing Party.
1.5 Services: all work and other activities which are the object of any offer, agreement or other legal act in the frame of the relationship between i3D.net and the Instructing Party.
1.6 Agreement: any reciprocal acceptation, confirmed in writing or through e-mail, with respect to i3D.net’s Services. Orders placed electronically are explicitly included herein.
Article 2 Applicability of the General Terms
2.1 The General Terms are applicable to and are part of all offers, agreements and other legal acts, regardless of the way in which they have been made (orally, in writing, electronically or in any other form), in the frame of delivery by i3D.net of Products and/or Services to or for the Instructing Party.
2.2 The General Terms are also applicable to Products and/or Services i3D.net obtained from a third party and delivered (be it with or without having treated them before delivery) to the Instructing Party as well as to Products and/or Services delivered to the Instructing Party for i3D.net by a third party, as a result of the execution of an offer, agreement or any other legal act.
2.3 Derogations of the General Terms are only valid providing both i3D.net and the Instructing Party have explicitly agreed to them in writing.
2.4 i3D.net explicitly rejects the applicability of possible General Terms (of purchase) belonging to the Instructing Party.
2.5 In the event that a condition should become or should be declared void, the remaining conditions of the General Terms shall remain in full effect. i3D.net and the Instructing Party will agree mutually to a new condition in order to replace the void/annulled condition, thereby trying to approximate the intentions of the void/annulled condition as much as possible.
Article 3 Offer and agreement
3.1 All offers made by i3D.net are made without purchase obligation, unless explicitly specified in writing.
3.2 Offers made by i3D.net are valid for the term indicated on the offer. In case no term has been indicated, the offer will be valid for two (2) weeks after the date of emission of the offer.
3.3 Agreements come into effect through the acceptance by i3D.net of the order given in writing by the Instructing Party or at the moment of execution of an order by i3D.net.
3.4 Agreements are always closed for a duration of thirty-six (36) months, unless otherwise agreed. Premature termination is out of the question.
3.5 At the end of their established term, agreements are always prolonged with consecutive terms of twelve (12) months, unless otherwise agreed. Services ordered through the automated ordering process are automatically renewed with the same period as the initial ordering period, unless a cancellation has been received in time (article 13.4).
3.6 In the frame of any remote purchase in the sense of articles 7:46a to 7:46j of the Civil Code, the Instructing Party – providing it is a physical person and doesn’t operate in a professional frame or on account of a company – has the right to revoke the purchase within seven (7) days after placement of the order of (the) Service(s) without justification. In the event that the Instructing Party should want to exert its revocation right, it should notify i3D.net in writing of this decision. In that case, the Instructing Party may have to return to i3D.net any equipment delivered to it in the frame of the agreement as soon as possible and at its own risk and expense (postal parcel). In the event that the returned equipment should have suffered any damage ascribed to the Instructing Party, the Instructing Party empowers i3D.net beforehand to claim compensation of the damage suffered by i3D.net through the direct debit authorization the Instructing Party has provided.
Article 4 Prices, rates and surcharges
4.1 All prices and rates mentioned by i3D.net are in euros, unless explicitly specified otherwise in writing.
4.2 All prices and rates mentioned by i3D.net are given VAT excluded and without taking into account any other taxes imposed by the government. Similarly, transportation and delivery costs or travel expenses have not been taken into account, unless explicitly specified otherwise in writing.
4.3 At all times, i3D.net has the right to modify its prices and rates. Unless explicitly agreed in writing that prices and rates are valid for a given period, the announced price changes for delivery of Products and/or Services will come into effect two (2) months after their announcement.
4.4 If the Instructing Party doesn’t agree with a price and/or rate change announced by i3D.net, the Instructing Party has the right to terminate the agreement with i3D.net in writing, within fourteen (14) days following the announced change and by the time the announced change will come into effect.
4.5 In the event of a derogation of the original agreement between i3D.net and the Instructing Party, authorized by the Instructing Party, the ensuing surcharge will be calculated by means of the prices and/or rates in vigour at the time of execution of the additional service and presented to the Instructing Party.
4.6 Indexation: i3D.net reserves the right to increase rates yearly with a given percentage, without advance notice. This percentage equals five (5) per cent at most, augmented by a percentage equalling the increase of the cost-of-living index, as established by the CBS, during the year preceding the increase in rates. It should be mentioned explicitly that increases of rates on grounds of the indexation applied by i3D.net do not constitute a valid motive for premature termination of the agreement. The indexation is an integral part of the agreed price.
Article 5 Payment
5.1 The Instructing Party must pay invoices issued by i3D.net within the term mentioned on the invoice in question. In the event that no deadline for payment is mentioned on an invoice, a term of thirty (30) days will be applicable.
5.2 All payments by the Instructing Party to i3D.net are deduced from the old unpaid invoices addressed to the Instructing Party, regardless of any other indication given by the Instructing Party.
5.3 Any request for suspension, clearance or deduction submitted by the Instructing Party will be rejected.
5.4 At all times, i3D.net has the right to request (partial) payment in advance for the delivery of Products and/or Services, for instance through an authorisation of direct debit given to i3D.net. i3D.net also has the right to suspend delivery until the advance payment has been received. Furthermore, i3D.net has the right to request security of payment in the form preferred and indicated by i3D.net (e.g. banker’s guarantee). In that case, i3D.net will not deliver the Products and/or Services until the desired security has been provided. 5.5 If the Instructing Party fails to pay any invoice issued by i3D.net within the deadline for payment, the Instructing
Party will automatically be considered in breach of the agreement, without advance notice. In that event, i3D.net has the right to claim interests by right, in accordance with article 6:119 of the Civil Code, or compensation of loss caused by delay in accordance with article 6:119a of the Civil Code, at a per month rate or for part of the month and to be calculated in accordance with the amount of the unpaid invoice.
5.6 If, after the notice of default, the Instructing Party remains indebted of the owed sum augmented by the interest by right as provided for by article 6:119 of the Civil Code or the surcharge for loss caused by delay as provided for by article 6:119a of the Civil Code, i3D.net has the right to pass on the claim. On top of the main sum with the additional late payment interest by law (as provided for by article 6:119 of the Civil Code) or the surcharge for loss caused by delay (as provided for by article 6:119a of the Civil Code), the Instructing Party will then also be liable to cover all extra-judicial and possible judicial costs, explicitly in addition to the possible costs established by right. These costs will amount to at least 15% of the main sum.
5.7 In the event of late payment, i3D.net reserves the right to immediately suspend services. The party concerned accepts liability for the following surcharge per invoice in respect to i3D.net (in order to cover administration costs) in the event that the invoice should be passed on to a debt collection agency: € 90,- augmented by € 10,- per exhortation and € 35,- per cost for charge from a debt collection agency; for an exhortation sent by registered mail, € 25,- will be charged. These in-house administration costs and the invoice total will be augmented by the collection costs and all judicial and extra-judicial costs entailed by the collection procedure. After payment of all outstanding sums, reconnection can be performed at a one-time charge of € 250,-.
5.8 i3D.net reserves the right to dissolve the agreement and consider it dissolved by right if the party concerned doesn’t timely pay the amounts due in accordance with this agreement.
5.9 In the event of late payment, the party concerned accepts liability for all judicial and extra-judicial costs and interests by right incurred by any third party involved by i3D.net or the debt collection agency.
5.10 In the event the Instructing Party performs a charge back on any payment without filing a reclamation or objection with i3D.net first, the Instructing Party will be invoiced at €25,- per charge back to cover administrative fees.
Article 6 Delivery, risks and retention of title
6.1 The terms of delivery announced by i3D.net for Products and/or Services are presented only for information purposes, thus are never to be considered a deadline, unless explicitly agreed otherwise in writing.
6.2 The risk of loss or damage to the Products in the frame of the agreement between i3D.net and the Instructing Party is transferred to the Instructing Party from the moment the Products in question become the actual possession of the Instructing Party or any proxy acting on its behalf.
6.3 It is compulsory that the Instructing Party should check all delivered Products for possible defects or flaws immediately following delivery.
6.4 The title to all goods delivered to the Instructing Party shall remain vested in i3D.net, until full payment of all due sums by the Instructing Party for Products and/or Services delivered by i3D.net and all due interests and surcharges, as provided for by articles 5.5 and 5.6. Inasmuch as it was agreed explicitly in writing that certain rights will be granted or transferred, the rights will always be transferred or granted providing the charges pertaining thereto have been
fully and timely paid.
Article 7 Reclamations
7.1 Any contestation from the Instructing Party regarding a i3D.net invoice or an amount recovered by i3D.net through direct debit should be notified in writing to i3D.net within fourteen (14) days following the invoice date or the date on which the direct debit was performed; past this deadline, the invoiced or debited sum shall be considered approved by the Instructing Party.
7.2 Should the Instructing Party consider that a Product or Service delivered by i3D.net does not meet the criteria agreed on between both parties, then the Instructing Party should immediately notify i3D.net within fourteen (14) days following delivery or following the moment starting from which the Instructing Party could have reasonably noticed the
shortcoming indicated by it.
Article 8 Intellectual property
8.1 All rights on intellectual property pertaining to the Products and/or Services as well as to designs, programs, documentation and any other material developed and/or used for the preparation or implementation of the agreement between i3D.net and the Instructing Party – or the rights deriving thereof – are solely vested in i3D.net or its suppliers. The delivery of Products and/or Services doesn’t entail any transfer of rights of intellectual property.
8.2 The Instructing Party is always granted a mere non-exclusive and non-transferable right to use the Products and results of the Services for the agreed purposes. The Instructing Party will, during such use, strictly adhere to conditions specified in the General Terms or otherwise imposed on the Instructing Party.
8.3 Products and results of the Services will never, in any way, be disclosed to the public, multiplied or held at a third party’s disposal by the Instructing Party without prior authorisation in writing from i3D.net.
8.4 The Instructing Party will never remove or modify notices placed by i3D.net or its suppliers and pertaining to authors’ rights, brands, trade marks or other rights of intellectual property.
8.5 i3D.net guarantees that it holds the right to transfer the rights mentioned in article 8.2 to the Instructing Party; i3D.net will also keep the Instructing Party indemnified from possible claims from third parties in the frame of this article. This condition will not be valid in case and insofar as the Products and/or results of the Services have been altered and/or have been delivered in connection with goods delivered by a third party, unless – in the last case – the Instructing Party can prove that the rights of the third party only pertain to the Products and/or results of Services delivered by i3D.net.
Article 9 Supply of information by the Instructing Party
9.1 The Instructing Party will always timely supply complete information as requested by i3D.net, as well as any other type of information required for the delivery of Products and/or Services.
9.2 The Instructing Party guarantees that the information mentioned in article 9.1 is accurate and complete and that it is entitled to provide the information to i3D.net in the frame of delivery of Products and/or Services. The Instructing Party will indemnify i3D.net from all possible claims from third parties in this frame.
9.3 In the event that part of the information supplied by the Instructing Party to i3D.net could be considered personal information, the Instructing Party guarantees that the information complied with the privacy laws in vigour at the time the information was supplied and that its use and treatment by i3D.net is authorized. The Instructing Party indemnifies i3D.net from all possible claims from third parties in this frame.
Article 10 Confidentiality
10.1 The parties will not disclose any confidential information concerning the company of the other party, obtained in the frame of the agreement. Parties will also impose this restriction on their employees and on third parties employed for the implementation of the agreement between both parties.
10.2 Information will by all means be considered confidential if any one of the parties indicates it as such.
Article 11 Liability of i3D.net
11.1 The legal liability of i3D.net for imputable faults in the frame of the implementation of the agreement is restricted to the compensation of direct damage suffered by the Instructing Party up to a maximum amount equalling the compensation established in the agreement in question. If the agreement has a term exceeding one year, the established compensation will equal the sum total of compensations established for the ongoing year at the time the fault occurs. In no case will the total compensation for direct damage exceed € 250,- and – if the damage is of physical or material nature – € 250,- per event, whereby a series of events will be considered one event.
11.2 With direct damage is exclusively meant: costs the Instructing Party had to reasonably incur in order to repair or discontinue the shortcomings of i3D.net so that i3D.net’s performance would again be in accordance with the agreement, as well as reasonable costs incurred to prevent or restrict such damage and reasonable costs incurred to establish the cause and the importance of the damage. If i3D.net and the Instructing Party have agreed on a binding term of delivery, the costs will be taken into account, which the Instructing Party had to reasonably incur to take emergency dispositions on account of i3D.net’s failure to deliver within the binding term of delivery, less possible savings, also in the case of direct damage.
11.3 Each liability of i3D.net for indirect damage, including but not limited to consequential loss, loss of profits and loss of revenue is excluded.
Article 12 Force Majeure
12.1 There will be no imputable faults ascribed to i3D.net in case of Force Majeure.
12.2 If the circumstances of Force Majeure have lasted for longer than sixty (60) consecutive days, the Instructing Party will have the right to dissolve the agreement in writing and out of court. No damage compensation whatsoever will be imputable to i3D.net for damages suffered by the Instructing Party on account of the dissolution of the agreement. i3D.net has the right to claim payment from the Instructing Party for all Products and/or Services delivered to the Instructing Party up to the moment of dissolution of the agreement.
Article 13 Termination
13.1 Each party has the right to dissolve the agreement out of court in the event that the other party should fail to fulfil its obligations in the frame of the agreement and should remain incapable of remedying the breach within a reasonable timeframe after having received due notice in writing. Dissolution does not discharge the Instructing Party of any obligation of payment for Products and/or Services already delivered by i3D.net, unless i3D.net is to be considered in breach with respect to a certain Product or Service.
13.2 i3D.net has the right to dissolve the agreement immediately without advance notice and without being considered liable for any kind of damage compensation to the Instructing Party if suspension of payment has been granted to the Instructing Party, if a declared state of bankruptcy has been requested for the Instructing Party, if (part of) the possessions of the Instructing Party have been seized, if the company of the Instructing Party finds itself in a state of liquidation or goes out of business, if the Instructing Party commits acts in violation of the (inter)national laws and regulations or if the Instructing Party has supplied false information to i3D.net.
13.3 Immediately after the dissolution of the agreement (whichever the reason of dissolution), the Instructing Party will stop using Products and/or results of Services provided to it and will return all programs, documentation and other material provided to it in the frame of the agreement.
13.4 Early termination of the agreement must be notified in writing, observing a period of notice of three (3) months at the end of the agreed on period, unless otherwise agreed. The termination may be notified through (E)-mail, fax, or trough i3D.net’s online ticket system on the understanding that the period of notice will begin on the day that i3D.net receives the notice of termination. Gameservers and voiceservers have a minimum renting period of one (1) month and period of notice of one (1) month. Dedicated servers ordered through the automatic ordering process have a minimum renting period of one (1) month and a period of notice of one (1) month. A custom order/invoice has a minimum agreement of twelve (12) months and a period of notice of three (3) months. The notice of termination should mention the personal information and the customer number (if any). The notice should also bear the signature of the Instructing Party.
Article 14 Personnel
14.1 In the event that i3D.net personnel should perform its duties in the frame of the delivery of Products and/or Services on the premises of the Instructing Party, the Instructing Party will offer all the support necessary for the accomplishment of these duties.
14.2 Throughout the duration of the agreement between Instructing Party and i3D.net and for one year following termination thereof, the Instructing Party shall not hire or employ in any other way, be it directly or indirectly, personnel of i3D.net without prior written authorisation of i3D.net. With personnel of i3D.net is meant: all persons which i3D.net or one of its associated enterprises has hired or which have stopped working for i3D.net or one of its associated enterprises less than 6 (six) months ago.
Article 15 Disputes
15.1 Offers, agreements and other legal acts in the frame of delivery of Products and/or Services by i3D.net are governed by Dutch law.
15.2 Disputes between i3D.net and the Instructing Party, resulting from or pertaining to offers, agreements and other legal acts in the frame of delivery of Products and/or Services by i3D.net will be exclusively presented to the competent judge in the district of Rotterdam.
Article 16 Disablement of services
16.1 i3D.net has the right to temporarily disable delivered Services for maintenance purposes.
16.2 i3D.net has the right to (temporarily) disable delivered Services or limit their use if the Instructing Party should fail to fulfil one of its obligations toward i3D.net or displays conduct that is in breach with the present General Terms. i3D.net will notify the Instructing Party thereof, unless this cannot be reasonably expected from i3D.net. The imposed restriction or disablement doesn’t affect the other obligations of the Instructing Party and thus has no suspending effect.
16.3 The Instructing Party will be reconnected upon the fulfilment of all its obligations within a deadline imposed by i3D.net and upon payment of the thereto established reconnection fee (€ 25,- VAT excluded).
Annex 1: Data Processing Agreement
This Data Processing Agreement is an integral part of the agreements between the Customer and i3D.net. i3D.net is the Processor of the personal data and the Customer is the Controller with regard to the personal data.
Article 1. Purposes of data processing operations
1.1. The Processor commits to processing personal data on the instructions of the Controller, subject to the conditions of this Data Processing Agreement. The data will only be processed for the purpose of storing data of the Controller in the 'cloud', the related online services, colocation and those purposes that can be reasonably associated with it or will be determined by mutual agreement.
1.2. The Controller will decide which types of personal data it requires the Processor to process and therefore also to which (categories of) data subjects the personal data relate. The Processor exerts no influence on this decision. This relates in any case to personal data of customers of the Controller, and staff of the Controller, that are stored by the Customer at the Processor. The Processor will refrain from using the personal data for any purpose other than that determined by the Controller. The Controller will inform the Processor of the purposes of the processing where these are not already stated in this Data Processing Agreement.
1.3. The personal data to be processed on the instruction of the Controller will remain the property of the Controller and/or the data subjects concerned.
Article 2. Obligations of the Processor
2.1. In respect of the processing referred to in Article 1, the Processor will ensure compliance with applicable legislation and regulations, including in any event the legislation and regulations in the field of the protection of personal data, such as the General Data Protection Regulation.
2.2. All subsidiaries, sister companies and parent companies in the Processor's Performance Group have the same rights and associated obligations under this Data Processing Agreement as the Processor.
2.3. The Processor will inform the Controller, upon the latter’s first request, of the measures it has taken to meet its obligations under this Data Processing Agreement.
2.4. The Processor’s obligations arising from this Data Processing Agreement also apply to any party processing personal data under the authority of the Processor, including, but not confined to, employees, in the broadest sense.
2.5. The Processor will notify the Controller if it feels that an instruction provided by the Controller violates the legislation referred to in paragraph 1.
Article 3. Transfer of personal data
3.1. The Processor is allowed to process the personal data in European Union member states. In addition, the Processor is allowed to transfer the personal data to a country outside the European Union, provided the Processor ensures an adequate level of protection and it complies with the other obligations to which it is subject pursuant to this Data Processing Agreement and the General Data Protection Regulation.
3.2. Upon request, the Processor will inform the Controller of the country or countries involved.
3.3. In particular, the Processor will, in determining an adequate level of protection, take account of the duration of the intended processing, the country of origin and the country of final destination, the general and sectoral rules of law that apply in the country concerned, as well as the professional rules and the security measures complied with in those countries.
Article 4. Division of responsibility
4.1. The Processor will make ICT means available for the processing that can be used by the Controller for the purposes stated above. The Processor will itself only perform processing on the basis of separate agreements.
4.2. The Processor is solely responsible for the processing of the personal data under this Data Processing Agreement, in accordance with the instructions of the Controller and under the express (ultimate) responsibility of the Controller. The Processor is expressly not responsible for any other processing operations involving personal data, including in any event, but not confined to, the collection of personal data by the Controller, processing for purposes that the Controller has not notified to the Processor and processing by third parties and/or for other purposes.
4.3. The Controller warrants that the content, the use and the instructions for the processing of personal data as referred to in the Agreement are not unlawful and do not infringe any third-party right.
Article 5. Engagement of third parties or sub-contractors (sub-processors)
5.1. The Processor engages third parties, which are available on request and for which the Controller hereby provides authorisation. In the case of new third parties, the Processor will inform the Controller thereof. If the Controller has well-founded objections to the engagement of the third party, a suitable solution must be sought in consultation. If the parties are unable to reach a suitable solution, the Controller may give notice to terminate the Agreement if the use of a specific third party of which it has been notified is unacceptable to it.
5.2. All of the companies within the Performance Group, are part of the parties which the Processor engages.
5.3. The Processor will in any case ensure that these third parties assume similar obligations in writing as those agreed between the Controller and Processor.
5.4. The Processor warrants correct compliance with the obligations in this Data Processing Agreement by such third parties and, in the event of errors committed by such third parties, is liable itself for any and all damage or loss as if it had committed the error(s) itself.
Article 6. Security
6.1. The Processor will endeavour to take sufficient technical and organisational measures against loss or any form of unlawful processing (such as unauthorised disclosure, interference, alteration or provision of personal data) in connection with the processing of personal data to be performed.
6.2. The Processor does not guarantee that the security is effective in all circumstances. If the Agreement does not include explicitly defined security, the Processor will endeavour to ensure that the security provided shall meet a standard that is not unreasonable, taking into account the state of the art, the sensitivity of the personal data and the costs associated with implementing the security measures.
Article 7. Notification obligation
7.1. The Controller is at all times responsible for reporting data leaks (which includes a breach of the security of personal data that leads to a risk of negative consequences, or has negative consequences, for the protection of personal data) to the supervisory authority and/or data subjects. In order to enable the Controller to meet this legal obligation, the Processor must inform the Controller without delay of a data leak after it has detected one and if the leak relates to the personal data that are processed by the Processor on behalf of the Controller.
7.2. The notification obligation shall in any case include reporting that a leak has occurred, as well as:
- The supposed or known cause of the leak;
- the consequences (that are currently known and/or are to be expected);
- the solution or proposed solution.
Article 8. Handling requests from data subjects
In the event that a data subject submits a request to exercise their statutory right of inspection or their statutory right to improvement, addition, amendment, blocking, erasure of data or data portability to the Processor, the Processor shall forward the request to the Controller and the Controller will handle the request. The Processor may inform the data subject about this.
Article 9. Privacy and confidentiality
9.1. All personal data the Processor receives from the Controller and/or collects itself within the framework of this Data Processing Agreement is subject to a duty of confidentiality towards third parties. The Processor will not use this information for any purpose other than that for which it was provided.
9.2. This duty of confidentiality does not apply insofar as the Controller has expressly granted permission to provide the information to third parties, if providing the information to third parties is logically required in view of the nature of the work assigned and the performance of this Data Processing Agreement or if there is a statutory obligation to provide the information to a third party.
Article 10. Audit
10.1. The Controller may have an audit conducted at the Processor by an independent ‘Register EDP Auditor’ who is bound by a duty of confidentiality in order to verify compliance with the agreements under this Data Processing Agreement concerning the protection of the personal data processed by the Processor on behalf of the Controller.
10.2. This audit will only take place where there is a specific and well-founded suspicion of misuse of personal data, and only after the Controller has requested and assessed similar existing reports from the Processor, and has made reasonable arguments to justify an audit being initiated by the Controller. Such an audit is justified if the similar reports that the Processor has available provide an insufficient or inconclusive answer regarding compliance with this Data Processing Agreement by the Processor. The Controller will notify the Processor of the audit in advance, giving at least two weeks’ notice.
10.3. The Parties will jointly assess the findings of the audit that has been conducted and will determine on that basis whether or not those findings will be implemented by one of the Parties or by both Parties jointly.
10.4. Insofar as possible and reasonable, the Processor will cooperate with the Controller in carrying out a data protection impact assessment.
10.5. The costs of the audit described in paragraphs 1 and 4 above will be borne by the Controller.
Article 11. Duration and termination
11.1. This Data Processing Agreement will enter into effect once it has been signed by the Parties, on the date of the second signature.
11.2. This Data Processing Agreement has been entered into for the term specified in the Agreement between the Parties, in the absence of which it will at least apply for the duration of the collaboration.
11.3. Upon termination of the services by the Processor, the Controller is itself responsible for making copies of, exporting or otherwise returning, in good time, the personal data that the Processor processes on behalf of the Controller. After the end of the term of the Agreement, the Processor will remove or destroy the (personal) data of the Controller.
11.4. The Processor is entitled to revise this agreement from time to time. It will inform the Controller of the changes at least three (3) months in advance. The Controller may lodge a notice of objection by the end of these three (3) months if it does not agree to the changes. If the Processor does not receive a notice of objection within this period, the changes will be deemed to have been accepted by the Controller.
Article 12. Applicable law and settlement of disputes
12.1. The Data Processing Agreement and its execution are governed by Dutch law.
12.2. Any disputes that may arise between the Parties in connection with the Data Processing Agreement will be submitted to the competent court in Rotterdam.