General Conditions Networking4all

1. Applicability and validity

1.1 These general conditions shall apply to all offers and agreements under which Networking4all supplies products and/or services of any nature and however described to its Customer.

1.2 With respect to specific products or services the special conditions are applicable, which amplify and supplement, if necessary, the General Conditions governing the agreement. These special conditions are stated in forms provided (whether or not on line) and apply to the products or services in question. If and so far as Networking4all and its Customer make any additional or varying agreements in writing that depart from the provisions of either these general or the special conditions, such written agreements will prevail.

1.3 Generally, the products and services supplied by Networking4all are subject to (license) terms of third parties that form an integral part of the product or service. These (license) terms can be consulted via the web site of our third parties. Prior to entering into an agreement with Networking4all the Customer is obliged to inform himself of these (license) terms. If the Customer is of the opinion that these terms are unavailable, he is obliged to inform Networking4all in writing. If, in conformity with the provisions of this article, the Customer fails to inform himself of the (license) terms, this will not constitute any ground to terminate or set aside the agreement between the Customer and Networking4all.

1.4 Stipulations varying from and additions to these conditions only apply if they have been agreed upon in writing between Networking4all and the Customer.

1.5 If any provision of either these general or the special conditions or the additional agreements in writing is null and void or is voided, the other provisions of these general conditions as well as the special conditions and the additional agreements in writing will remain fully in effect.

1.6 Should this be the case, Networking4all and the Customer will consult with each other to agree new provisions to replace the void or voided ones. In doing so, the purpose and the meaning of the void or voided provision will be taken into account as far as possible.

2. Order and additional work

2.1 All offers and other publicities of Networking4all are without any obligation unless otherwise stated in writing by Networking4all. Distance contracts will only be processed as soon as all required information has been provided to Networking4all and will only bind Networking4all as soon as the order has been officially confirmed in writing (which includes e-mail).

2.2 The Customer will vouch for the correctness and completeness of the information that he has provided to Networking4all.

2.3 With respect to non-standard products the Customer will vouch for the correctness and completeness of the defined criteria with which Networking4all has to comply. Standard products are supplied “as is”.

2.4 Measurements and information stated in web sites, offers, advertising materials, standard sheets etc. shall have no binding force on Networking4all, unless expressly stated otherwise by Networking4all.

2.5 In the case that Networking4all has performed any work or other performances, on request or with prior consent of the Customer, that do not fall under the terms of reference or size of the work and/or performances agreed upon, this work or these performances will be paid by the Customer in accordance with the rates agreed and, in case of default, according to the usual rates of Networking4all. Networking4all can never be obliged to comply with such request and may require that a separate agreement in writing be signed.

2.6 The Customer accepts that the agreed or estimated completion time of the services and the mutual responsibilities of the Customer and Networking4all may be influenced by work or performances as defined in this article. The fact that (the request for) additional work arises during the execution of the agreement never constitutes a ground for the Customer to cancel or terminate the agreement.

2.7 In so far as a fixed rate has been agreed for the services Networking4all will, if requested, inform the Customer in writing about the financial consequences of the additional work or performances as referred to in this article.

3. Price, payment and invoicing

3.1 All prices are exclusive of value added tax (VAT) and all other applicable government taxes.

3.2 Unless agreed otherwise, all prices will be calculated in the currency indicated and, in the absence of which, in Euros. The Customer is obliged to make all payments in the currency indicated within the payment term stated on the invoice.

3.3 Prices of standard products and services are published on the web site of Networking4all. Networking4all is entitled to make interim price changes at all times.

3.4 All estimated costs and budgets issued by Networking4all only have an indicative value unless otherwise notified in writing by Networking4all.

3.5 The Customer can never derive any rights or expectations from cost estimates and budgets issued by Networking4all.

3.6 Informing Networking4all of an available budget is never considered an agreement between the parties on a (fixed) price for the performances done by Networking4all. Solely if such provision has been agreed in writing between both parties Networking4all is obliged to inform the Customer of an imminent overrun of the costs or budget as estimated by Networking4all.

3.7 If the Customer’s enterprise is composed of several natural persons and/or legal entities each and every one of these persons is jointly and severally liable for the amounts due under the agreement.

3.8 With respect to the performances done by Networking4all and the amounts due by the Customer, the relevant documents and data entered into the records or systems of Networking4all constitute conclusive proof, notwithstanding the Customer’s right to provide proof to the contrary.

3.9 If the Customer has a periodic payment obligation Networking4all will be entitled to change, by written notice, the current prices and rates at least three months in advance.

3.10 If the Customer does not wish to agree with such change he is entitled to terminate the agreement in writing within thirty days after the notice is given, the termination taking effect on the date of the price change coming into force.

3.11 The Customer will not be entitled to the above-mentioned right of termination if either both parties have agreed that the current prices and rates are changed in accordance with an index or another standard agreed on between both parties, or if the price increase is a consequence of a cost increase of third parties, the Customer being aware of the fact that products or services of third parties were used by Networking4all to provide the services or products (certificates included).

3.12 Both parties will set out in the agreement on which date or dates Networking4all will charge the Customer for the agreed performances. The amounts due will be paid by the Customer either according to the payment term agreed upon or the payment term stated on the invoice. In the absence of a special payment arrangement the Customer will have make payment within the term provided for by Networking4all.

3.13 The Customer is neither entitled to defer any payment nor to set off the amounts due.

3.14 In the case of failure to pay the amounts due or to pay them by the stipulated date, the statutory commercial interest shall be payable by the Customer without a demand for payment or a notice of default being required. If the Customer fails to pay the debt after a demand for payment or a notice of default Networking4all may assign the debt, in case of which the Customer will be obliged to pay all legal and other costs in addition to the total amount due, all expert costs included. Networking4all is also entitled to suspend the performance of all obligations and other services and deny the Customer’s access to the portal of Networking4all or to particular parts of this portal.

3.15 Invoices will be sent by e-mail, barring other mandatory provisions of law.

4. Terms of delivery

4.1 All (delivery) terms and (delivery) dates stated or agreed by Networking4all are set to the best of its knowledge based on the data as known at the time of entering into the agreement. Interim delivery dates mentioned by Networking4all or agreed between both parties are always considered target dates. Terms have no binding force on Networking4all and are always of an indicative nature. Networking4all will make a reasonable effort to comply with the final (delivery) terms and (delivery) dates as far as possible.

4.2 Networking4all is not bound by (delivery) terms or (delivery) dates, whether final or not, that cannot be met as a result of circumstances beyond its control and that occurred after entering into the agreement.

4.3 Networking4all is not bound by (delivery) terms or (delivery) dates if both parties have agreed to change the content or size of the agreement (additional work, change of specifications etc.) or the approach as to carry out the agreement.

4.4 In case of an imminent failure to meet any deadline Networking4all and the Customer will hold consultations in order to discuss the consequences for the remaining schedule that go with exceeding the deadline.

4.5 Exceeding a (delivery) term or (delivery) date stated by Networking4all or agreed upon by both parties will not be sufficient to constitute a default on the part of Networking4all.

4.6 In all cases – and consequently, also in the case of which both parties have expressly agreed on a final (delivery) term or (delivery) date in writing – Networking4all will not be in default for exceeding the delivery term or date until the Customer has given a written notice of default. The notice of default should contain as complete and detailed a description of the default as possible, so that Networking4all will be given the opportunity to respond adequately.

5. Suspension, termination and cancellation of the agreement

5.1 Each of the parties is entitled to terminate an agreement before termination by accomplishment only if, upon a proper and as detailed as possible notice of default stating a reasonable term for curing the shortcoming, the other party fails imputably in the fulfillment of the essential obligations in accordance with the agreement. The Customer’s payment obligations as well as all other obligations to cooperate or any third party engaged by the Customer are always considered essential obligations under the agreement.

5.2 In so far as the Customer fails imputably to comply with the fundamental obligations under the agreement Networking4all will also be entitled to suspend the performances of the obligations under this agreement until the Customer has complied with all due obligations at that time. In so far as any charges are made for the suspension, the costs will be payable by the Customer and will be due on call.

5.3 If the Customer at the moment of termination has already received performances in the execution of an agreement as mentioned in article 5.1., these performances and the accompanying payment obligation shall not be an object of undoing, unless the Customer is able to prove that Networking4all is in default with respect to a substantial part of these performances. Amounts invoiced by Networking4all before the dissolution in respect of whatever they have already carried out or delivered with respect to the agreement, shall remain owing with due observance of the previous sentence and become payable at the moment of dissolution.

5.4 Fixed-term agreements are always renewed for the same period of time, with the exception of cancellation subject to one month’s notice, unless agreed otherwise in writing.

5.5 The Customer is never entitled to an early termination of an agreement of services or order which has been entered into for a fixed period.

5.6 If an agreement which by its nature and content does not end in completion has been entered into for an indefinite period, this agreement can be cancelled in writing by each of the parties, in consultation and stating reasons for the cancellation. If no period of notice was agreed on by the parties a reasonable notice period should be observed. The party that dissolves the agreement in this manner shall never be liable to pay any compensation.

5.7 Each of the parties is entitled to have an agreement fully or partly terminated immediately by means of a notice in writing, without notice of default, if the other party is granted suspension of payment, whether or not temporarily, if the other party files for bankruptcy or if their company is wound up or terminated unless for the purpose of reconstruction or merger of companies or if the Customer’s decisive control over the company is altered. On account of this termination Networking4all shall never be liable to refund monies already received nor to pay any compensation. In case of bankruptcy of the Customer his rights to use the provided software, web sites and suchlike will lapse by operation of law.

6. Force majeure

6.1 None of the parties is liable to comply with any obligation, including any guarantee obligations agreed on by both parties, if a situation of force majeure exists. Force majeure shall include: (i) force majeure of the supplier’s subcontractors, (ii) failure to properly comply with the obligations of subcontractors as prescribed to Networking4all by the Customer, (iii) defectiveness of goods, equipment, software or materials belonging to third parties, the use of which prescribed to Networking4all by the Customer, (iv) government measures, (v) power grid failure, (vi) failure of the internet, computer network or telecommunication facilities (including the supported services related to these facilities), (vii) war, (viii) staffing establishment, (ix) strike, (x) general transport problems and (xi) the non-availability of one or more staff members.

6.2 If the force majeure extends a period of more than ninety days, each of the parties is entitled to terminate the agreement by means of a written announcement to the other party. Whatever has already been performed under the agreement shall be paid in proportion, but without parties remaining due to each other.

7. Property and intellectual property risks and rights

7.1 Unless expressly stated otherwise, the (intellectual) property of goods or services supplied by Networking4all will remain vested in Networking4all or its subcontractors; the Customer will only obtain a non-exclusive and temporary right of use. All intellectual property rights to the software, web sites, data files, hardware or other materials such as analyses, designs, documentation, reports, offers as well as their preparatory material developed and supplied to the Customer under the agreement will remain vested in Networking4all, their licensor or their subcontractors. The Customer will only obtain the user rights expressly granted by the special conditions or the general conditions and the law. The Customer’s right of use is non-exclusive and non-transferable to third parties and non-transferable or sub-licensable.

7.2 All objects delivered to the Customer, the ownership of which were agreed to be transferred, shall remain the property of Networking4all until such time as all amounts owed by the Customer to Networking4all pursuant to the agreement concluded between the parties have been paid in full. A Customer who acts as a retailer shall be entitled to sell and resell all objects that are subject to Networking4all’s retention of title in so far as this is customary within the context of the normal course of its business. If the Customer creates a new item (partly) from items delivered by Networking4all, the Customer shall only create this item for the benefit of Networking4all and the Customer shall retain the newly created item for Networking4all until such time as the Customer has paid all amounts due pursuant to the agreement. In this case Networking4all shall remain the owner of the newly created item until the Customer has met his payment obligations in full.The property law consequences of retention of title in respect of an item that is destined for export shall be governed by the law of State of destination if this law incorporates provisions that are more favorable for Networking4all in this regard.

7.3 Rights, including rights of use, shall be granted to the Customer or transferred, where appropriate, subject to the condition that the Customer has paid all of the fees due pursuant to the agreement concluded between the parties in full. If the parties have agreed that the Customer shall be subject to a periodic payment obligation in respect of the granting of a right of use, the Customer shall be entitled to the right of use for as long as he continues to meet his periodic payment obligation. Networking4all may retain any items, products, proprietary rights, data, documents, software, data files and (interim) results of the service provided by Networking4all that are received or created within the context of the agreement, contrary to an existing obligation to deliver or transfer these, until such time as the Customer has paid all amounts due to Networking4all.

7.4 The risk of loss, theft, conversion of or damage to items, product data/documents, software, data files or data (codes, passwords, documentation etc.) that are created or used under the execution of the agreement, will pass to the Customer when the Customer or one of the Customer’s agents comes into actual possession of them. In so far as these objects are in the actual possession of Networking4all or one of Networking4all’s agents, Networking4all will carry the risk of loss, theft, conversion or damage.

7.5 The Customer is not permitted to remove or change any detail regarding the confidential nature or regarding the copyrights, brand names, trade names or any other intellectual property rights from the software, web sites, data files, hardware or materials. Even if the agreement does not explicitly provide for such authority, Networking4all is entitled to take technical measures in order to protect the software, hardware, data files, web sites and suchlike on account of an agreed restriction on the content or duration of right to use these objects. Never shall the Customer be permitted to remove or to circumvent such technical provision or arrange these acts to be carried out.

7.6 Networking4all indemnifies the Customer against any claims by third parties based on the allegation that software, web sites, data files, hardware or other materials developed by Networking4all themselves infringe an intellectual property right of the third party in question, on condition that the Customer immediately informs Networking4all in writing on the existence and the content of the claims and leaves the settlement of the case, including effecting possible settlements, entirely to Networking4all. To this end, the Customer shall provide Networking4all with the power of attorney, information and assistance required to defend themselves, if necessary in the name of the Customer, against these claims. This obligation of indemnification will not apply if the alleged infringement relates to (i) materials made available to Networking4all by the Customer for the purpose of use, adaptation, processing or incorporation, or (ii) changes made by the Customer, or by a third party on behalf of the Customer, to the software, web site, data files, hardware or other materials, without Networking4all’s written consent.

7.7 If it is irrevocably established in law that the software, web sites, data files, hardware or other materials developed by Networking4all themselves infringe any intellectual property right of a third party of if Networking4all believes there is a reasonable chance that such infringement may occur, Networking4all will, where possible, ensure that the Customer can continue to use the software, web sites, data files, hardware or materials delivered, or functionally similar alternatives, in so far as these are part of the agreed service between the Customer and Networking4all. Goods and/or services, including “self-service” portals and administrative tools, that cannot be made available as a service, may at all times be shut down by Networking4all without the liability to compensate or provide the Customer with alternative services.

7.8 Any other or further-reaching obligation to indemnify on the part of Networking4all shall be excluded.

7.9 The Customer warrants that no rights of third parties preclude the provision to Networking4all of hardware, software, materials destined for web sites (visual material, text or music, domain names, logos, hyperlinks etc.), data files or other materials including draft materials, for the purpose of use, adaptation, installation or incorporation (e.g. in a web site). The Customer indemnifies Networking4all against any claims by third parties based on the allegation that the provision, use, adaptation, installation or incorporation of these objects infringes any right of the third party in question.

8. Liability

8.1 The total liability of Networking4all for an attributable failure in the performance of the agreement or on any other basis, expressly including each failure in the performance of any guarantee obligation agreed on with the Customer, is limited to reimbursement of direct damage up to a maximum of the stipulated price under the agreement (VAT excluded). This limitation of liability applies equally to the indemnification obligation of Networking4all as mentioned in article 6.

8.2 If the agreement is primarily a continuing performance contract with a term of more than one year the aforementioned amount shall be fixed at the total of the payment (not including VAT) stipulated for one year. The total compensations for direct damage per year, however, shall not in any event exceed € 500,000 (five hundred thousand euros). Networking4all’s total liability for damage resulting from death or bodily injury or for material damage to property shall not in any event exceed € 1,250,000 (one million two hundred and fifty thousand euros).

8.3 Excluded is any liability by Networking4all for indirect damage, including consequential loss, loss of profit, lost savings, reduced goodwill, loss due to business stagnation, loss as a consequence of claims by the Customer’s suppliers, loss relating to the use of goods, materials or software of third parties prescribed to Networking4all by the Customer and loss due to employing suppliers prescribed to Networking4all by the Customer. Also excluded is any liability by Networking4all for mutilation, destruction or loss of data or documents.

8.4 The exclusions and limitations of the supplier’s liability, as set out in the above-mentioned paragraphs of this article 8 will not affect the other exclusions and limitations of Networking4all’s liability under these general conditions and the special conditions.

8.5 The exclusions and limitations as referred to in article 8 will be cancelled if and in so far as the loss sustained was caused by an intentional act or willful recklessness on the part of the Networking4all management.

8.6 Unless Networking4all permanently fails to comply with the agreement, Networking4all will be liable for an attributable failure in the performance of the agreement only if the Customer provides Networking4all with a written notice of default forthwith, setting a reasonable term in which the breach can be remedied, and only if, after this period of time, Networking4all is still in breach of the obligations under the agreement. The notice of default should contain as complete and detailed a description of the default as possible, so that Networking4all will be given the opportunity to respond adequately.

8.7 A claim for compensation cannot be considered unless written notice of the loss has been given to Networking4all as soon as possible. Any claim against Networking4all for compensation will lapse within twelve months after the inception of the loss.

8.8 The Customer indemnifies Networking4all against all possible claims by third parties for product liability stemming from a defect in a product of system that was delivered to a third party by the Customer and that partly consisted of hardware, software or other materials delivered by Networking4all, unless and in so far as the Customer submits proof that the loss was caused by that specific hardware, software or other materials.

8.9 The provisions of this article as well as all other exclusions and limitations of liability that are set out in these general conditions are valid in favor of all (legal) persons which Networking4all engages to execute the agreement.

8.10 The Customer indemnifies Networking4all against all possible claims by third parties related to “content” published on the Networking4all web site by the Customer or on the storage media provided by Networking4all (hosting).

9. Protection (personal) data

9.1 As defined by the Personal Data Protection Act, the controller of the processing of all personal data provided to us with regard to the performance of the agreement with the Customer, is Networking4all B.V., based in Amsterdam and listed in the Commercial Register of the Chamber of Commerce, under file number 20099481.

9.2 In the context of providing certain services or of the request to do so, Networking4all may need to register personal data of the Customer or his employees involved, which relates to one or more of the following data: first name; surname; job title; company name; address; E-mail address; financial data (hereinafter referred to as “Personal Data”).

9.3 If Networking4all needs to use the Personal Data, this will be done in order to: (i) complete the contracted agreement; (ii) inform the Customer in the context of the execution of the agreement; (iii) create an account for the Customer; (iv) inform the Customer about other products/services that may be interesting for the Customer or the employees involved.

9.4 Networking4all will only use the Personal Data for the above-mentioned purposes and will not retain them any longer than necessary. For information regarding the data Networking4all collects from (all) visitors of its web site(s), the applicable Privacy Policy will be used.

9.5 If the Customer purchases any services/products that are provided to Networking4all by a foreign supplier (e.g. a certificate supplied by Symantec in the United States), Networking4all may need to pass certain Personal Data on to these suppliers in order to execute the agreement with the Customer. Networking4all would like to point out that the protection of Personal Data in non-EU countries may not be of the same level. If Personal Data are passed on to countries outside the European Union Networking4all will try to make agreements in order to provide an adequate level of Personal Data protection.

9.6 Networking4all will not pass any Personal Data on to third parties, unless express permission is given by the Customer or his employee involved or unless Networking4all is obliged to do so under the law or under a court decision. Networking4all will take adequate technical and organizational measures to protect your data. However, full protection can never be guaranteed.

9.7 The customer indemnifies Networking4all against claims of persons whose Personal Data have been registered or are processed for the purposes of a register of personal data kept by the Customer or for which the Customer is otherwise liable under the law, unless the Customer proves that the facts that are the basis for the claim should be attributed solely to Networking4all.

9.8 The processing of Personal Data has been reported to the Dutch DPA (College Bescherming Persoonsgegevens). If the Customer or his employee involved wishes to access or change the Personal Data that are processed by Networking4all for your benefit, or to object to the use of those data, you can contact Networking4all via privacy@networking4all.com.

9.9 The responsibility for the data that are processed or stored using a service provided by Networking4all lies solely with the customer. The customer guarantees Networking4all that the content, the use and/or the processing of the data are not unlawful and do not infringe any right of a third party. The customer indemnifies Networking4all against any possible legal claim by third parties, of whatever nature, in connection with these data or the performance of the agreement.

9.10 These general conditions will be available in several languages. On entering into the agreement both parties will set out which language version will apply. If no such agreement is made on the matter, those agreements set out in the Dutch text will be binding on the parties.

9.11 Networking4all is entitled at any time to amend these general conditions. Networking4all will inform the Customer each time such changes are made, in so far as they concern the Customer. If an amendment results in an essential change of rights and duties of the parties the Customer is entitled to terminate the agreement affected by the change within thirty days after receiving the notification, by giving notice in writing. In that case, Networking4all will have the opportunity to void the termination by maintaining the old conditions with respect to the Customer.

9.12 Both the Customer and Networking4all will undertake not to disclose any of the information received from the other party that are known or reasonably known to be confidential. The party receiving confidential information shall only use this information for the purpose of which it was provided. Information is regarded in any case confidential if this information has been designated as such by one of the parties.

9.13 The Customer indemnifies Networking4all against claims of persons whose personal data have been registered or are processed for the purposes of a register of personal data kept by the Customer or for which the Customer is otherwise liable under the law, unless the Customer proves that the facts that are the basis for the claim should be attributed solely to Networking4all.

9.14 The responsibility for the data that are processed or stored using a service provided by Networking4all lies solely with the Customer. The Customer guarantees Networking4all that the content, the use and/or the processing of the data are not unlawful and do not infringe on any right of a third party whatsoever. The Customer indemnifies Networking4all against any possible legal claim by third parties, of whatever nature, in connection with these data or the performance of the agreement.

9.15 If Networking4all is liable to provide some form of information security under the agreement, such security will comply with the specifications regarding security as agreed upon in writing between the parties. Networking4all never guarantees the information security to be effective under all circumstances. If any security features expressly stated in the agreement are missing, the security will meet a level which, considering the state of the art, the data sensitivity and the costs involved in taking the security measures is not unreasonable.

9.16 In order to perform the agreement, computer, data and telecommunication facilities will be used, in the context of which Networking4all will assign access and identification codes to the Customer. Networking4all is at all times entitled to change the assigned access or identification codes. The Customer will treat these access and identification codes in confidence and with care and will only make them known to authorized staff members. Networking4all shall never be liable for any damages or costs resulting from the use or misuse of access or identification codes, unless the misuse results from an intentional act or gross negligence of the Networking4all management.

9.17 The Customer is obliged to provide Networking4all with all cooperation necessary for a proper performance of the agreement and, in the context of which, to provide Networking4all on request or otherwise with all relevant information on the matter.

9.18 All written communication between the parties shall be by e-mail, unless prescribed otherwise by mandatory provisions of law or stated otherwise by Networking4all.

10. Dispute resolution policy

10.1 The agreement between the Customer and Networking4all is governed by Dutch law. The application of the 1980 Vienna Convention on Contracts for the International Sale of Goods (CISG) is excluded.

10.2 Any dispute which may arise between the parties in connection with or as a result of the agreement will be settled by the competent court in Utrecht, The Netherlands.

Information

Do you have any questions regarding these documents? Please contact us.


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