Version 3.0 | 2023, March 20
i3D.net Master Services Agreement (MSA) ‘’base’’
Global Terms & Conditions
1. Ordering of Licensed Space & Services
a) Client may request that i3D.net provide Licensed Space and other Services by submitting a signed Order form. Upon i3D.net’s written acceptance of the Order, it will become a part of this MSA. Depending on the nature, types and locations of Services covered by the Order, Client may be requested to sign additional Orders and other forms of agreement for specialized Services (collectively Addenda), each of which, when fully signed, shall be incorporated into this MSA, whether or not physically attached. i3D.net shall not have any obligation to provide Licensed Space or other Services to Client until all Orders and Addenda required by i3D.net have been executed by the Parties.
b) In the event of conflict between or among the provisions of this MSA and its Addenda, the documents shall be given the following descending order of precedence in construing the controlling provision or interpretation:
i) written Order(s), including Online Order(s);
ii) Country Agreement(s);
iii) Service Agreement(s), together with any applicable SLAs;
iv) these Global Terms & Conditions;
v) Policies; and
vi) contemporaneous and mutually confirmed direct messages (e.g., Slack™ or Phone Orders).
If a Country Agreement modifies these Global Terms & Conditions, such modification will only apply to Orders for that country.
c) i3D.net expressly rejects the application of all standardized purchase terms and conditions of Client, such as those appearing on preprinted forms or purchase orders
2. Payment Terms
a) Fees for Services will accrue from the Billing Start Date and Client will be liable for Fees for the full term specified in each Order. Client will pay in full all invoices from i3D.net in the currency specified in the Order within thirty (30) days of the invoice date. i3D.net reserves the right to charge interest on all past due amounts at the lower of (i) one and a half percent (1.5%) per month; or (ii) the highest rate permitted by applicable law. If Client fails to pay any invoiced amount to i3D.net when due, Client will be deemed to be in default, without any notice of default or demand being required. In such event, in addition to all other rights and remedies available to it in law and equity, i3D.net is authorized to charge the maximum statutory interest [permitted under applicable law; 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 principal amount, which will be charged daily for so long as the outstanding amount remains unpaid. If, having been given notice of default, Client 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 that event, in addition to the principal and 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, Client will be obliged to pay all extrajudicial expenses and any legal costs, in addition to any costs determined at law. Such costs will amount to a minimum of 15% of the principal.]
b) In the absence of Client’s payment default, or a specialized or customized order, i3D.net will invoice Client monthly in advance for all recurring Fees (MRCs) and in arrears for use-based or non-recurring Fees (NRCs), such as installation, Remote Hands and technical support fees. Fees will be determined with reference to i3D.net’s then-current price list, unless otherwise provided in an Order or this Agreement.
c) Client shall not offset, deduct, set-off or suspend payments for Services. Client may, in good faith, dispute any invoice or any part thereof (a “Disputed Amount”) by submitting a written notice of such dispute along with reasonable supporting documentation within sixty (60) days of the date of the initial invoice on which the Disputed Amount appears. Initiating a dispute does not relieve Client of its obligation to pay the Disputed Amount timely. In the event no such written and supported dispute is submitted within the 60 day period, then Client shall be deemed to have accepted the invoice and to have waived all rights to challenge the Disputed Amount, including the right to file any claim pertaining to the Disputed Amount. The Parties will work together in good faith to resolve the Disputed Amount within thirty (30) days after receipt of Client’s notice.
d) Whether or not identified or estimated in any proposal or Order, Client shall be solely responsible for the payment of all (i) Taxes related to its activities and the ownership and operation of all Client’s Equipment, (ii) Taxes resulting from or pertaining to Client’s rental or use of all i3D.net Technology, Services or equipment, and (iii) Taxes imposed, levied or assessed on Client or Client’s Equipment by any governmental or other tax authorities. If Client is required to make any deduction, withholding or payment for Taxes in any jurisdiction on amounts payable to i3D.net, the gross amount due to i3D.net from Client shall be increased after Client has made the deduction, so that i3D.net receives the same amount it would have received if such deduction, withholding or payment had not been made.
e) All third-party service provider and, third-party datacenter charges, as well as any software licenses obtained by i3D.net on Client’s behalf (such as licenses from the Microsoft Service Provider License agreement “SPLA”) are automatically subject to price increases to match any increases made by the datacenter, software manufacturer or other provider. i3D.net will use its best efforts to provide Client thirty (30) days written notice before such a price change takes effect. To the extent that Client uses its own licenses, Client shall be responsible for accurately reporting to i3D.net all changes in the number of licenses being used at the end of each month. Client will indemnify and hold i3D.net harmless against any third-party Claim resulting from Client’s failure to do so timely and accurately.
f) Unless otherwise agreed by the Parties in writing, not more frequently than once per calendar year, i3D.net may, in addition to its other rights, increase the Monthly Fee and any other ancillary fees by a fixed percentage that is the greater of (i) five percent (5%), or (ii) the percentage increase in the CPI. Client acknowledges and agrees that this price indexation is an integral part of the negotiated prices applicable to this Agreement and that price increases arising from this provision do not provide a basis for early termination.
g) In the discretion of i3D.net, payments received will be applied to Client’s oldest outstanding invoices, without regard to any contrary directive from Client.
h) Absent i3D.net’s agreement to allow Client to pay for its Services in U.S. dollars, i3D.net will bill Client in [euros;U.S. dollars] and invoices shall be payable in [The Netherlands; United States].
3. MSA Term, Termination and Suspension
a) This Agreement begins on the Effective Date and terminates on the date the last Order then in effect expires or is terminated. A termination of this Agreement shall terminate all Order(s) and all rights of use granted to Client shall expire immediately.
b) Without effecting a termination of this MSA, Client may direct i3D.net to decommission one or more servers, Services, or licenses of Licensed Space after their applicable Initial Term by means of a written decommission directive submitted via email to support@i3d.net. Decommission directives are effective on the 30th day following their receipt by i3D.net, unless a longer or shorter period is provided under the applicable Order or Addenda.
c) Either Party may terminate this Agreement by giving written notice to the other Party if the other Party breaches any material term or condition of this Agreement and fails to cure such breach within thirty (30) days (ten (10) days in the case of a Payment Default) after receipt of such notice. If Client fails to cure a Payment Default resulting in a breach, Client shall be responsible for all costs of collection, including reasonable attorneys’ fees. If the breach (other than a Payment Default) cannot be cured within thirty (30) days, the breaching Party shall be given a reasonable period of time, not to exceed sixty (60) days after receipt of the notice, to cure the breach, provided that the breaching Party acts promptly and diligently to cure such breach.
d) Without limiting i3D.net’s rights under Section 3(b) above, if Client has been notified of a Payment Default on two (2) or more occasions during a twelve (12) month period) the time to cure any material breach of this Agreement shortens to ten (10) days after notice (or within five (5) days after notice of a third Payment Default), and i3D.net may suspend access to the Licensed Space and/or the provision of Services.
e) i3D.net may deny removal of Client’s Equipment at any time there exists a Payment Default.
f) Either Party may terminate this Agreement immediately upon giving written notice to the other if the other Party becomes insolvent or enters bankruptcy, initiates the process of liquidation, has a receiver appointed, begins winding up or makes similar arrangements.
g) i3D.net may suspend access to the Licensed Space and/or the provision of Services if (i) it receives an order, judgment or decision from a court, law or regulatory enforcement authority or other government institution, the performance of which necessitates or directs the same, (ii) Client or Client’s Equipment interferes with the delivery of Services, the operation or maintenance of the datacenter or point of presence, or with i3D.net’s or its other Clients’ use of the same, and within a reasonable time not to exceed one (1) hour after being notified of the interference by email or phone, Client fails to (a) cease such interference, (b) provide a plan acceptable to i3D.net to immediately cease such interference or (c) authorize i3D.net to take action to cease such interference (billed at Remote Hands rates as set forth on the i3D.net Website); (iii) in i3D.net’s reasonable judgment Client or Client’s Equipment has the potential to interfere with i3D.net’s delivery of Services, operation or maintenance of the datacenter or point of presence, or with one or more of its other Clients’ use of the same, and within a reasonable time not to exceed seventy-two (72) hours after being notified of the potential interference by e-mail or phone, Client fails to (a) resolve such potential interference; (b) provide a plan acceptable to i3D.net to timely resolve such potential interference; or (c) authorize i3D.net to take action to resolve such potential interference (billed at Remote Hands rates); (iv) Client commits a material breach of this Agreement. If i3D.net suspends the provision of Licensed Space and/or other Services pursuant to this Section 3 (g), unless i3D.net has elected to terminate this Agreement, i3D.net will reverse the suspension of Licensed Space and/or Services as soon as reasonably practical after it is satisfied that Client has cured the breach(es) giving rise to the suspension and paid the prescribed reinstatement Fee of € 250 (or U.S dollar equivalent) plus applicable Taxes. Further, i3D.net may terminate this Agreement if the suspension of Client’s Access or Services continues for five (5) consecutive days or occurs more than three (3) times in any twelve (12) month period.
4. Representations, Warranties and Limitations of Liability
a) Each Party represents, warrants, and covenants to the other that it will comply with all applicable laws and regulations in performing this Agreement.
b) i3D.net will provide the Licensed Space and other Services in a professional and workmanlike manner. If Client concludes that any Licensed Space or Service provided by i3D.net does not meet any requirements expressly agreed upon by the Parties, Client shall inform i3D.net of its conclusion and identify the specific disparity(ies) in writing within fourteen (14) days of the earlier of (i) their delivery to Client, or (ii) the inception of the disparity, the purported disparities are waived. In the absence of an SLA or other express standard of service, i3D.net provides all Services on a Best Efforts basis.
c) Subject always to any financial liability limitations in this Agreement, if an SLA is entered into by the Parties with respect to a Service, it is the SLA that establishes the performance standard and maximum financial liability of i3D.net to Client in providing the Service(s) to Client.
d) Client represents, warrants and covenants to i3D.net that (i) it possesses and will maintain the legal right and authority (including regulatory consents) to operate, configure, install, repair and maintain Client’s Equipment throughout the Term, (ii) it is the owner, licensee or rightful user of all software used by Client in and in connection with the Licensed Space and Services, including all requisite copyrights, trademarks, patents, trade secret, and other intellectual and other property rights related thereto, and that their use and operation will comply with Client’s rights of use.
e) Client also represents, warrants and covenants that it: (i) is and will remain compliant with applicable Sanction Laws; (ii) is not listed, or owned or controlled by an entity or person, on the U.S. Department of Treasury list of Specially Designated Nationals, or located in or organized under the laws of a country subject to U.S. or E.U. embargo (collectively, “Restricted Persons”); (iii) is not providing services in connection with this Agreement to Restricted Persons, including any Sublicensees; and (iv) will not use the Licensed Space and Services, or allow them to be used, for any purposes prohibited by applicable Sanction Laws, including nuclear, chemical, or biological weapons proliferation or development of missile technology. Notwithstanding any other provision in this Agreement, i3D.net reserves the right to terminate this Agreement immediately upon written notice to Client if i3D.net is notified by a governmental regulatory, judicial or legal enforcement agency that Client is not in compliance with this Section 4(d) or is causing i3D.net to be exposed to violations under Sanction Laws.
f) EXCEPT AS MAY BE EXPRESSLY SET FORTH IN THIS AGREEMENT, i3D.net DOES NOT MAKE AND HEREBY DISCLAIMS ALL WARRANTIES, INCLUDING BUT NOT LIMITED TO EXPRESS, IMPLIED AND STATUTORY WARRANTIES THAT THE LICENSED SPACE AND SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. i3D.net ALSO DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF ANY THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS. ALL LICENSED SPACE AND OTHER SERVICES ARE PROVIDED OR PERFORMED ON AN “AS IS”, “AS AVAILABLE. BASIS, AND CLIENT’S USE OF THE LICENSED SPACE AND SERVICES IS SOLELY AT ITS OWN RISK.
g) NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR (i) LOST PROFITS; (ii) LOSS OF BUSINESS; (iii) LOSS OF REVENUES (EXCEPT THAT CLIENT SHALL BE LIABLE FOR ALL FEES AND OTHER AMOUNTS OWED TO i3D.net UNDER THIS AGREEMENT); (iv) LOSS OF DATA OR INTERRUPTION OR CORRUPTION OF DATA; (v) ANY CONSEQUENTIAL OR INDIRECT DAMAGES; OR (vi) ANY INCIDENTAL, SPECIAL, RELIANCE, EXEMPLARY OR PUNITIVE DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
h) ALSO NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, i3D.net’s TOTAL LIABILITY TO CLIENT IN THE AGGREGATE FOR THE ENTIRE TERM (REGARDLESS OF WHETHER THE CLAIMS ARE BROUGHT DURING OR AFTER THE TERM) WITH RESPECT TO ALL CLAIMS ARISING FROM OR RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT (INCLUDING ATTORNEY’S FEES) WILL NOT EXCEED THE AMOUNT ACTUALLY PAID BY CLIENT TO i3D.net FOR THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE MONTH IN WHICH THE FIRST CLAIM AROSE. AS A FURTHER LIMITATION, i3D.net’s MAXIMUM LIABILITY FOR ALL CLAIMS RELATING TO THE LICENSED SPACE AND THE SERVICES FOR A FAILURE INVOLVING A NON-RECURRING FEE OR A REMOTE HANDS SERVICE, SHALL NOT EXCEED THE AMOUNT OF THE FEE FOR SUCH SERVICES ON THE OCCASION GIVING RISE TO THE CLAIM.
i) Subject always to the limitations of this Agreement, i3D.net and Client agree to indemnify and hold harmless the other Party, including the other Party’s officers, directors, agents, and employees from all Claims.
j) The Parties each waive the right to bring any claim against the other arising out of or in any way relating to an Order more than one (1) year after the earlier of the date the Services are completed, or the Order for the Services expires or is terminated.
k) The Parties recognize and agree that the warranty disclaimers, limitations of liability and remedy limitations are integral parts of this Agreement, and their existence and protections are reflected in establishing the Fees charged by i3D.net to Client.
5. Confidentiality
a) Each Party shall hold the other Party’s Confidential Information in strict confidence and not use or disclose it to any other person or entity, except (i) with the express written consent of the Disclosing Party, or (ii) as necessary to perform obligations required by this Agreement, in which event the Receiving Party may disclose Confidential Information to those of its employees and contractors who need-to-know the information to perform this Agreement, so long as there exists a nondisclosure agreement with such persons of at least equal stringency.
b) Client acknowledges and agrees that i3D.net Confidential Information includes the i3D.net Technology.
c) If the Receiving Party is required by law or valid order of a court or other governmental authority to disclose Confidential Information of the Disclosing Party, the Receiving Party shall first, unless prohibited by applicable law, give notice to the Disclosing Party to allow the Disclosing Party a reasonable opportunity to obtain a protective order.
d) Each Party grants to the other a non-exclusive, non-transferable, and non-sublicensable license to use the other Party’s trademarks, trade names, service marks, and logos (collectively “Trademarks”) during the Term and solely in connection with the Receiving Party’s website and/or marketing and promotional efforts. The Receiving Party will ensure that its use of any Trademarks complies with the Disclosing Party’s trademark use guidelines as may be changed by from time to time. Any use of the Trademarks by the Receiving Party will first be submitted to the Disclosing Party for approval. The Receiving Party shall not alter Trademarks; nor does this right of use grant to the Receiving Party any right, title, or interest in the Trademarks. In addition, i3D.net may identify Client as a customer of i3D.net on its website and marketing and promotional materials.
6. Client Acknowledgments and Cooperation
a) The Parties agree that they have reviewed this Agreement and had an opportunity to negotiate it, and that this Agreement shall not be interpreted more strictly against the drafting Party. The section headings and captions are for convenience only and will not be used to construe this Agreement.
b) If any provision of this Agreement is held to be unenforceable, in whole or in part, such holding will not affect the validity of the other provisions of this Agreement.
c) Client acknowledges that i3D.net expressly rejects the applicability of any general purchase conditions or other conditions of Client, whether presented previously, presently or in the future.
d) Each submission and action performed using Client’s Account shall be deemed to have been authorized and taken by Client. All such activities shall be at Client’s sole risk of loss. If Client knows, suspects or should reasonably suspect or know that the Account has been “hacked” or its security compromised, or is at risk of being misused, Client must immediately report this information to i3D.net and cooperate fully with any instructions from i3D.net to prevent misuse and restore security to the Account.
e) Client shall take all reasonable steps to ensure that its obligations under this Agreement are performed correctly and on time. To that end, Client agrees that it will provide i3D.net all information and data that it reasonably requests (or that Client should reasonably expect to be required) for the establishment, operation or maintenance of the Services is delivered to i3D.net on time and is accurate and complete. Any time period within which i3D.net is required to perform any act under this Agreement shall be automatically extended until all the information and data i3D.net has requested (or that Client should reasonably expect to be required) has been delivered and is accurate and complete. Client’s delay in delivering required information or data does not defer or relieve Client from any Fee obligations.
f) If Client knows or should reasonably know that due to a change in circumstance or use, i3D.net will need to take additional measures to comply with its obligations under this Agreement, Client shall inform i3D.net as soon as it becomes aware of the likelihood of such change in circumstance or use. By way of example only, if Client knows or should know that it will be entering a period of high use which might cause i3D.net’s systems to experience an exceptional peak load and degradation or unavailability of Services. Given adequate advance notice, i3D.net will use its Best Efforts to prevent the Services from becoming degraded or unavailable. Whether or not i3D.net receives advance notice, all additional costs (e.g., bandwidth, managed services charges, and remote hands expenses) reasonably incurred by it to avoid or mitigate the impact of Client’s change in circumstance or use will be the responsibility of and charged to Client.
g) Without full disclosure and specific advance written permission of i3D.net, Client may not use the Services for High-Risk Applications.
h) Client shall keep its name, postal address, email address, contact persons, telephone number and, if requested, credit card and bank account numbers up to date throughout the Term.
i) Regardless of whether Materials are legal, Client agrees not to use or distribute, or to suffer others using or distributing, via the Licensed Space or Services, any Materials, that in i3D.net’s reasonable discretion:
i) are intended primarily to aid others in infringing the rights of third parties, such as websites that present or distribute hack tools or information to enable those with Access to commit a crime, rather than enabling the reader to defend against such crimes;
ii) are libelous, defamatory, insulting, racist or discriminatory or incite hatred;
iii) contain child pornography, beastiality or appear intended to assist others in locating such Materials;
iv) 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;
v) contain hyperlinks, torrents or references to the location of Materials that infringe copyright or other intellectual property of another without appropriate licensure;
vi) contain unsolicited commercial, charity-related or ideals-related communications;
vii) contain malicious content, such as viruses, malware or spyware.
j) Client also acknowledges and agrees that:
i) No access is given by i3D.net to its network infrastructure (switches, routers, monitoring equipment, PDU’s etc.) — unless specifically granted in an Order or other Addenda.
ii) All rented devices will have a pre-installed administrator account that allows access by i3D.net which Client shall not remove, tamper with or change. If i3D.net agrees in writing to waive this limitation and remove its administrator account from any device(s), a one-time Fee will be charged to Client. Notwithstanding anything to the contrary in this Agreement, no SLA shall apply and it shall be deemed stricken from this Agreement at the moment the administrator account is removed.
iii) Client is responsible for the security of its rented devices and is strongly advised to abide by industry “best practices” including cybersecurity protocols.
iv) i3D.net disclaims all responsibility or obligation to use, fix or access any and all Client software or systems whatsoever.
v) Unless specifically agreed in an Order or other Addenda, i3D.net has not been requested to provide backup services of any kind and specifically disclaims all responsibility to perform backups of Client materials, data or Client software. If backup storage solutions are desired by Client a separate Order and/or Service Agreement that identifies the backup/storage responsibilities must be entered into by the Parties and additional Fees attributable to the backup/storage solution paid by Client. Absent a specific assumption of responsibility by i3D.net Client is advised to and shall be deemed to have elected to perform its own backups and data storage protocols and is solely responsible for backing up and storing all Client data and software.
7. Miscellaneous Provisions
a) Law & Jurisdiction. This Agreement is made under and will be governed by and construed in accordance with the laws of [The Netherlands; the State of California] without regard to conflicts of laws principles. If any legal action is brought to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to recover reasonable attorneys’ fees in addition to any other relief to which it may be entitled. The Parties agree that jurisdiction over any dispute arising under this Agreement shall be resolved in the [district of Rotterdam, The Netherlands; state or federal courts within Los Angeles County State of California] and the Parties expressly consent to such jurisdiction.
b) Independent Contractor. Client acknowledges and agrees that i3D.net is an independent contractor and not an employee, partner, joint venturer or in any like relationship with Client. net retains all rights to perform services for others during and after the Term.
c) Counterparts & Entire Agreement. This Agreement and its Addenda may be executed in counterparts, each of which will be deemed an original, and all of which together will constitute one and the same instrument. This Agreement, together with its Addenda, constitutes the entire final agreement between the Parties with respect to the matters described herein and supersedes all prior or contemporaneous communications, agreements, and understandings between the Parties with respect to the subject matter hereof.
d) This Agreement may not be altered, amended, or otherwise modified in any respect, except by a writing duly executed by the Parties. Notwithstanding the general application of the preceding sentence, the Parties acknowledge and agree that i3D.net may amend its Policies by giving Client thirty (30) days advance written notice of the change(s) via the i3D.net Website, an email to the Client or a message posted in Client’s Account. Client shall be deemed to have accepted the Policy change(s) if it does not specifically reject the change(s) by written notice to i3D.net prior to the end of the thirty day notice period. Upon receipt of Client’s objection, i3D.net may, in its sole discretion, modify or revoke the Policy change(s) or allow Client to initiate the termination of this Agreement.
e) This Agreement may be assigned only to an Affiliate of i3D.net or to a third party which acquires a majority voting interest in a Party or which acquires substantially all of the assets of a party hereto, provided that the assignee is at least as fiscally sound as the assignor at the inception of this Agreement and the person or entity to whom this Agreement is assigned agrees in writing to be bound by all of the terms and conditions of this Agreement. The rights and duties of the Parties shall be binding upon and shall inure to the benefit of their respective heirs, successors, and permitted assigns.
f) No Waiver. None of the provisions of this Agreement shall be deemed to have been waived by any act or acquiescence by a Party or its representatives, unless in a writing signed by an authorized officer of the Party sought to be charged with the waiver. No waiver of any provision of this Agreement shall constitute a waiver of any other provision or of the same provision on another occasion.
g) Unless an alternative method of notice is specifically provided in this Agreement, all notices, consents, or approvals must be given in writing and sent by (i) certified or registered mail, postage prepaid; (ii) overnight delivery requiring a signature upon receipt; (iii) delivery by hand; or (iv) facsimile or e-mail (promptly confirmed by mail), to the Parties at the respective addresses in this Agreement or as otherwise designated in writing by the Parties and be deemed effective on the date of receipt. Notwithstanding anything to the contrary in this Agreement, notices relating to i3D.net Policies shall be deemed to have been received five (5) days after mailing if sent by mail, two (2) days after mailing if sent by overnight courier or on the date of dispatch if sent by email or posted on a public or customer accessible portion of the i3D.net Website.
h) Force Majeure. Except for Client’s obligation to pay Fees and other amounts due under this Agreement, neither Party will be responsible or in any way liable to the other Party, and neither Party will have any termination or other rights, arising out of or resulting from a Force Majeure Event.
i) Subcontractors. net may permit Smartdc or any other Affiliate, independent contractor or other third party, to perform any of i3D.net’s obligations hereunder, provided that i3D.net remains primarily responsible to Client for the performance of its obligations.
j) Non-Solicitation of Personnel. Neither Party shall during the Term or for one (1) year thereafter make a targeted solicitation to any of the other Party’s personnel to leave their employment.
k) No Third-Party Rights. No one except the Parties to an Order have any rights or obligations under such Order. The i3D.net entity that enters into an Order with Client for Services will be solely responsible for providing the Services in accordance with the Agreement, and no other i3D.net or parent entity will be jointly, severally, or otherwise liable in connection with that Order or this Agreement.
l) Time of the Essence. Time is of the essence in all things to be done, including all payments to be made, by Client under this Agreement.
m) Sections 3 through 8 shall survive any termination or expiration of this Agreement.
8. One Platform
a) Client may utilize the One Platform available at i3d.net or through the Application Programming Interface for administrative purposes such as the decommissioning, reviewing and monitoring current services as well as ordering additional services.
b) Everything ordered by the Client through the One Platform is automatically a part of this MSA and subject to the terms and conditions of this MSA.
9. Definitions
Capitalized terms in this Agreement shall have the meanings set forth below unless an alternate definition is provided in writing in an Order or other Attachment to this Agreement.
Accompanying Person: Each person (other than an employee of i3D.net) accompanied by an Authorized Person while at an i3D.net datacenter or point of presence.
Account: means the enabled user interface that allows a Client to access, manage and configure the Services to the extent permitted, as well as use configuration(s) and files that may be stored on Client’s behalf from time to time during the Term.
Addenda: means the collections of Orders, Service Agreements, Country Agreements and other forms of written agreement signed by the Parties
Affiliate: An entity that controls, is controlled by, or under common control with a Party, by virtue of legal, beneficial or equitable ownership, directly or indirectly,
of more than fifty percent (50%) of the aggregate voting equity interests in the entity.
Agreement, Master Services Agreement or MSA: means this Master Services Agreement, together with all written and signed Orders and Addenda that are incorporated by reference or that by virtue of their timing and object are within the scope of Services the Parties would reasonably expect to be covered by this MSA.
Associated Entity: means (i) each individual, company, partnership or other entity which employs, contracts with, or is otherwise associated with Client, Authorized Persons or Accompanying Persons, (ii) any of Client’s end users and (iii) Sublicensees.
Authorized Person: Each person included on the most recent list of Authorized Persons given to i3D.net by Client in accordance with i3D.net’s then-current forms and procedures, who may be authorized by Client to, for example, access a datacenter, place Orders or act as Client’s shipping contact.
Best Efforts: means a process in which i3D.net takes all commercially reasonable steps to achieve the stated objective, diligently and in good faith.
Billing Start Date: For Licensed Space or a Service ordered in an Order (other than Online Orders or Phone Orders), the date designated in the Order as the start date or if there is no start date designated in the Order, then the date on which the Licensed Space is provided or the Service is delivered to Client. i3D.net will inform Client of the actual Billing Start Date (which may be via email). Services may have different Billing Start Dates under the same Order, in which case billing will commence for each Service upon the dates that each individual Service has delivered, as informed by i3D.net.
Claims means claims, demands, lawsuits, losses, liabilities, damages and expenses, including without limitation costs of suit and attorneys’ fees arising out of a Party’s breach of this Agreement or any representations or warranties in this Agreement.
Client’s Equipment: All network, computer and other equipment provided, owned or controlled by Client, Client’s Affiliates, Client’s Authorized Persons, Accompanying Persons or Associated Entities (including wiring and connections between such equipment and
Client’s demarcation equipment), excluding Cross-Connects or i3D.net’s demarcation equipment.
Confidential Information: means each Party’s financial, business, marketing, customer communications, benchmarking data, product development and other non-public information and technical documents, including the terms of this Agreement, the Disclosing Party’s internal business operations and internal economics, business plans, relationships with employees, customers, vendors and contractors, business and technological processes, design details, specifications, software code, demos and product samples, (including all copies, summaries, notes and extracts thereof) that was obtained or disclosed pursuant to or in connection with this Agreement. Confidential Information does not include documents or information that: (a) is or becomes known to the general public without fault or breach on the part of the Receiving Party; (b) the Receiving Party receives from a third party without breach of a nondisclosure obligation and without restriction on disclosure; (c) was in the possession of the Receiving Party prior to disclosure by the Disclosing Party; or (d) is independently developed by the Receiving Party’s personnel having no access to the Disclosing Party’s confidential information.
Country Agreement: means any written agreement between the Parties for Licensed Space or Services bearing the designation “Country Agreement” and containing specialized terms and conditions of service.
CPI means the year over year increase in The Netherlands consumer price index in the calendar year preceding that of the price increase permitted under this Agreement.
Cross-Connect: A physical or wireless interconnection within an i3D.net datacenter or point of presence that (i) exits Client’s Licensed Space or (ii) connects Client to another i3D.net Client.
Fees: means all charges and fees charged to Client by i3D.net, including but not limited to those for Licensed Space and Services of all types, exclusive of Taxes.
Force Majeure: means events or circumstances beyond its reasonable control, including, but not limited to, acts of God, war, labor strike, terrorist act, fire, flood, earthquake, health epidemic or any law, order, regulation or other action of any governing authority or agency, failures of public or private infrastructure that is typically
available to i3D.net and on which the provision of the Services is dependent, but over which i3D.net lacks direct actual control, computer or internet sourced disruptions or crimes, such as DOS or DDOS attacks or successful or unsuccessful attempts to circumvent or “hack” network or systems security; and failures on the part of i3D.net’s vendors or suppliers.
Force Majeure Event: means a failure by a Party to perform any of its obligations under this Agreement if the failure is caused by Force Majeure.
High Risk Applications: means applications in which a failure or deficiency in the Services could lead to death or serious injury, serious environmental damage or loss of personal or other data that Client or i3D.net identifies as being sensitive and the loss or destruction of which might result in significant direct or consequential damage. By way of example only, transportation systems in which a deficiency could result in derailing trains or aircraft accidents; medical systems in which a deficiency could result in a person 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.
i3D.net Technology includes but is not limited to all i3D.net software, including administration, monitoring and reporting tools; i3D.net server information and specifications, including usage and performance records and information, passwords, domains, domain names, hardware and software configurations, bandwidth and disk space information; any materials, software or technology used or provided via the i3D.net Website or by i3D.net in connection with its Services; network information, including usage and performance records and information, configurations and passwords; i3D.net non-public information, including financial and business information, product content, hosting service protocols and procedures, software development efforts, source code, software and hardware configurations; and i3D.net strategies, business methods, practices and procedures.
i3D.net Website: means the website at https://www.i3d.net.
Licensed Space: means the specific space licensed by Client from i3D.net in an i3D.net datacenter or point of presence and made available to Client for access and use with permission.
Materials: means all works, including programs, software, websites, applications, branding, logos, flyers, brochures, leaflets, lettering, advertisements, marketing and/or communication plans, drafts, images, texts, sketches, documentation, consultancy, reports, code and other creations of the mind, as well as the data media (whether or not encrypted) on which the Materials are stored.
One Platform means the application programming interface as well as the user interface for the i3D.net client administration panel found at one.i3d.net.
Online Order: An order placed by Client using the One Platform.
Order: An order from Client for Licensed Space or Services, including a Service Agreement, order follow-on order or amendment that references this Agreement, and an Online Order or Phone Order pertaining to the Licensed Space or existing Services. Orders are not valid until signed by the Parties, or in the case of an Online Order or Phone Order until expressly accepted or performed by i3D.net. i3D.net is under no obligation to accept any Order.
Payment Default: means the existence of unpaid and overdue Fees following a written notice to Client that Fees are past due.
Phone Order: An Order from Client pertaining to the management of Licensed Space or Services, such as a Remote Hands request. Orders for new Services or new Licensed Space may not be placed by phone.
Policy or Policies: means i3D.net’s then-current collection of procedures, rules, requirements and other policies, including but not limited to its Access, Fair Use and Acceptable Use policies.
Services: means all services, goods, equipment, products and other offerings provided by i3D.net pursuant to an Order or Service Agreement covered by this Agreement.
Remote Hands: means onsite technical assistance provided by i3D.net or its agents for a Fee, which may include following Client’s express instructions relating to remote management, installation or troubleshooting of Client’s Equipment or any other agreed upon assistance by i3D.net that exceeds or is outside the scope of its pre-paid or included Services.
RIPE: means Réseaux IP Européens.
Sanction Laws: Sanction and embargo laws and regulations in effect at the applicable time, including sanctions instituted by the government of The Netherlands or the United States, including the U.S. Treasury Office of Foreign Assets Control, that extend to the Client’s Equipment, or the Services or locations utilized by Client.
Service Agreements: means any written agreements between the Parties for dedicated infrastructure, dedicated hosting, colocation, networking, Remote Hands and other managed and unmanaged services, equipment, goods and other offerings provided by or through i3D.net.
Services: means all work, services and activities performed or to be performed, equipment, goods, products and other offerings delivered, to be delivered, used or made available for use that are the subject of or encompassed by any applicable Order, Addenda, Policy or directive between the Parties.
SLA: means a signed Service Level Addendum pertaining to a Service.
Taxes: means sales, use, transfer, privilege, excise, consumption tax, Value Added Tax (“VAT”) or Goods and Services Tax (“GST”) as applicable, and other similar taxes and duties, whether foreign, national, state or local, however designated, levied or imposed (whether as a deduction, withholding or payment) now in force or enacted in the future, which apply to the Licensed Space or the Services performed by i3D.net or Client for its operations and use of the Licensed Space or Services, but excluding taxes on i3D.net’s income.
Term: means the duration of this Agreement or, as the case may be, its Addenda as determined under Section 3 of this MSA with reference to [The Netherlands; United States Pacific Coast local time].
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.
