GENERAL TERMS AND CONDITIONS ADPS B.V.

 

Article 1         General

1.1         These General Terms and Conditions apply to the formation, interpretation and implementation of all contracts (hereinafter: the Contract) entered into by ADPS B.V. (hereinafter: ADPS) with third parties (hereinafter: the Customer) with respect to all services and facilities provided by ADPS in the field of, but not exclusively, software (consultancy, development, supply, installation etc.), data hosting as well as general services (consulting on, maintenance of, as well as installing of equipment and various network components, telephonic help desks etc.) (hereinafter: the Services).

 

1.2         ADPS does not accept the General Terms and Conditions of the Customer or other third parties and these will not be part of the Contract entered into by ADPS and the Customer unless accepted expressly in writing by ADPS. The Customer is deemed to have agreed to the exclusive applicability of these General Terms and Conditions.

 

1.3         The General Terms and Conditions, as well as the provisions and/or contents of the order confirmation provided to the client by ADPS, including attachment(s), are exclusively applicable to all of ADPS’s contracts, offers, quotes and/or tenders (whether or not individually or jointly with third parties) unless ADPS has otherwise expressly agreed in writing.

 

 

Article 2         Formation of Contract

 

2.1       Contracts between ADPS and the Customer are formed through and at the time of ADPS’s written acceptance of a submitted Customer request or order.

 

2.2.      Services will be scheduled and implemented by ADPS after ADPS has received the legally valid and signed Contract. If the Customer uses ADPS Services without this having been agreed to in writing, a de facto Contract will exist and all the provisions of these General Terms and Conditions will apply.

 

 

Article 3         Duration and termination of Contract

 

3.1       ADPS will fulfil the contract within the time agreed to in writing in the Contract, or within the time frame that arises as a consequence of the nature of the agreed Services. The Services provided by ADPS will be available to the Customer after delivery by ADPS, unless parties agree otherwise in the Contract.

 

3.2       ADPS is entitled to terminate the Contract in writing, subject to a period of notice of one month. However, if there are serious reasons or circumstances that reasonably prevent the completion or continuation of the Contract by ADPS, ADPS can terminate the Contract with immediate effect, without being subject to a period of notice. ADPS will not accept liability in respect of the Customer if the Contract is terminated on the grounds of serious reasons.

 

3.3       Serious reasons may include, but are not confined to, circumstances in which the Customer is declared bankrupt or a petition for bankruptcy has been filed with the competent court, or if a request for suspension of payments of debts has been filed or a petition of this nature has been granted, or if the Customer has stopped business operations.

 

 3.4      The Customer is entitled to terminate the Contract in writing without being subject to a period of notice. An early termination of this sort will not prejudice ADPS’s entitlement to payment by the Customer of the agreed fee for work already completed, nor will it prejudice ADPS’s entitlement to compensation for losses. Included in this compensation, but not confined to it, are the costs that ADPS incurred during the preparatory phases of the work including, but not confined to, costs incurred for Services rendered or delivered, reserved production capacity, materials purchased, as well as services provided by third parties.

 

 

Article 4         Payments

 

4.1.      The Customer will be invoiced for Services provided by ADPS on the basis of the rates and prices included in the Contract. All rates and prices charged to the Customer by ADPS are excluding VAT (Dutch: BTW).

 

4.2.      All payments by the Customer must be deposited into a bank account provided by ADPS, with reference to the work or assignment carried out. In principle, the Customer will be invoiced for all Services on a monthly basis, unless ADPS and the Customer agree otherwise. ADPS is always entitled to charge an advance payment before the work in question has commenced.

 

4.3       All payments to ADPS must be made within 14 days of the date of invoice, regardless of whether the Customer uses the Services rendered and/or facilities offered, unless ADPS and the Customer expressly agree otherwise in writing. The payment term agreed to in this paragraph is deemed to be a final deadline. If the Customer authorises payment by direct debit, the Customer is responsible for ensuring that sufficient funds are available and for requesting the bank’s permission for direct debit payments. If a payment is not collectible, the Customer will still ensure that the payment has taken place within 14 days of the date of invoice.

 

4.4       With regard to extra costs or hours that ADPS has had to incur, including providing additional services, if the Customer has caused these extra costs and hours to be incurred, ADPS is entitled to invoice the Customer for these separately. The Customer acknowledges that, if ADPS carries out additional Services, the agreed or expected time of completing the Services may be affected.

 

4.5       If any payments by the Customer have not been made within the agreed timeframe, the Customer will be in default without notification of this being required. In this case, the Customer will be obliged to pay, over and above the principal amount owed, 1.5% default interest per month on the amount outstanding including statutory interest, whereby a part of the month will be counted as a full month.


Article 5         Customer shortcomings

 

5.1       If the Customer is in default or in breach of contract or fails to meet their obligations in terms of the Contract, then ADPS is entitled to suspend Services to the Customer with immediate effect and for an indefinite period; this will include retaining the software and/or materials and/or products produced by third parties appointed by ADPS, until such time as the Customer has settled ADPS’s claim(s). In particular, ADPS is entitled to discontinue the website and domain names in question (temporarily or permanently).

 

5.2       In the case referred to in the previous paragraph, all reasonable costs, both judicial and extrajudicial, as well as damages incurred by ADPS and third parties appointed by it, as a result of the default or other shortcomings on the part of the Customer, will be for the account of the Customer. The amount of extrajudicial costs is set at 15% of the total contractual amount owed to ADPS, with a minimum of EUR 500 (in words: five hundred euro), or as much as the actual extrajudicial costs amount to.

 

 

Article 6         Customer obligations

 

6.1       The Customer will provide ADPS on an ongoing basis with all the useful and necessary data or information on time, and extend all the cooperation that is required for proper implementation of the Contract.

 

6.2       If it has been agreed that the Customer will make available programs, material or data on data carriers, these will meet the required specifications for the implementation of the work.

 

6.3       If the Customer does not make available to ADPS the data required for implementing the Contract, or does not make it available on time or according to the written agreements, ADPS is entitled to suspend the implementation of the Contract, and has the right to charge for costs, according to the normal rates, that have arisen.

 

6.4       If the Customer causes damages to ADPS or to third parties, whether or not this is in contravention of the provisions of these General Terms and Conditions, the Customer is liable to pay compensation for these damages. The Customer will indemnify ADPS against all possible claims by third parties, regardless of how these may arise, whether or not through the Customer’s use of ADPS’s Services.

 

6.5       The Customer is obliged to notify ADPS, within 24 hours of detection, of any malfunctioning, defect or supposed liabilities on the part of ADPS in writing, and the Customer will allow ADPS a reasonable period of time to resolve these; if the notification in question does not take place in time, the Customer will lose all rights to any claim. If the damage is attributable to ADPS, the compensation will never amount to more than the amount that the Customer in question was invoiced per year.

 

6.6       If ADPS staff members are required to work at the Customer’s site, the Customer must provide, at no cost, the facilities that the staff members reasonably require, including, but not confined to, a work room with telecommunication facilities etc. The Customer will indemnify ADPS against all possible claims by third parties, including ADPS staff members, who suffer damages in connection with the implementation of the Contract, as a consequence of the acts or omissions by the Customer, or as a consequence of unsafe conditions in the Customer’s organisation.

 

6.7       The Customer will not disclose to third parties, or to legal or natural persons related to these, information, data, feeds, login specifications, user IDs, and password(s) provided by ADPS.

 

6.8       The Customer will not use the facilities made available by ADPS for actions and conduct that are against the law, public morality, public order, the Contract and these General Terms and Conditions. Included, but not confined to these, are the following actions and conduct: the dissemination of child pornography, sexual intimidation, spamming, infringement of copyright on work(s) protected by copyright, or acting in any way that is in contravention of third party intellectual property rights, or in any other way harassing people, or breaking into other computers on the internet without permission whereby the Customer breaches security and/or gains access using a technical intervention employing a false signal or a false key or by assuming a false identity.

 

6.9       Notwithstanding the provisions of Article 6.4, the Customer will not use their webhosting facilities to use or rent texts, images, promotions or other publicity related to pornographic material, Warez sites, illegal software sites, mp3 sites, chat sites, webcam sites and so on.

 

6.10     On moving internet domains to ADPS, the Customer is responsible for the timely termination of the contract with the provider in question and for acquiring their permission if necessary. The Customer will, however, remain obliged to pay ADPS for Services already rendered, regardless of if and when the former provider extends their cooperation to the Customer.

 

6.11     If the Customer moves their domain or has their domain moved from ADPS to another provider, the provisions of these General Terms and Conditions remain in full force until such time as the Customer has terminated the contract according to the provisions of Article 3. ADPS is entitled to refuse to cooperate with the moving of domains to another provider if it concerns a wrongful termination by the Customer. The rights of unpaid domains belong to ADPS and all damages and costs arising from the attachment and other measures related to the collection of these are entirely for the account of the Customer.

 

6.12     The Customer will never damage the systems or settings of ADPS or others or use the Services for hacking, sniffing, DOS attacks, TADPS/SYN, SPOOF, or similar activities. Furthermore, the Customer will not remove or extend, or allow to be removed or extended, the security settings with respect to third parties, on the facilities that have been made available by ADPS.

 

6.13     The Customer will not send unsolicited e-mails (spam) and will not commission anyone else to do so. The Customer will not appoint third parties that send out mails in newsgroups (similar to spam) or are otherwise engaged in the sending of emails in large numbers. Violations of this article are considered to be serious reasons within the meaning of Article 3.2.

 

6.14     If the Customer violates any of this article’s provisions, the Customer will incur an immediately payable penalty of EUR 15,000 (in words: fifteen thousand euro), as well as a penalty of EUR 1,000 (in words: one thousand) per day for as long as the violation continues, regardless of the authority that ADPS has to recover the actual damages from the Customer.

 

 

Article 7         Liability

 

7.1       ADPS is not responsible for any of the liabilities that the Customer assumes with respect to third parties, or for any other liabilities for the Customer that may arise in relation to the Contract with ADPS (or its implementation).

 

7.2       ADPS is not liable for any damage to the Customer’s information carriers (or those of third parties) that is caused by ADPS’s equipment or programming, or for any damages or costs that arise as a consequence of these.

 

7.3       ADPS is only liable for damage that arises as a consequence of defects in the Service provided by ADPS or damage to the Customer’s property if and insofar as this damage is caused through deliberate intent or recklessness on the part of ADPS.

 

7.4       Shortcomings on the part of ADPS in the performance of the Contract with the Customer can only be attributed to ADPS if they are due to fault on ADPS’s part, or if they are considered to be for ADPS’s account in terms of the law, the Contract or according to generally accepted standards.

 

7.5       ADPS is not responsible for the tools, applications and software belonging to third parties, either on their servers or on the local equipment that the Customer works on, unless otherwise agreed to in writing by the Customer and ADPS.

 

7.6       The Customer indemnifies ADPS for third parties claims against ADPS in relation to the Services rendered to the Customer by ADPS.

 

7.7       The liability and indemnification regime as embodied in the articles above also applies to ADPS’s employees and those that have been assigned by ADPS to implement the Contract.

 

 

Article 8         Intellectual and industrial property rights

 

8.1       ADPS is not responsible for any infringement of third party intellectual or industrial property rights. The Customer indemnifies ADPS for all third party liability for compensation as a consequence of any infringement of intellectual or industrial property rights. This explicit indemnification applies indefinitely from the time that the Contract between ADPS and the Customer has been entered into.

 

8.2       At no time is ADPS obliged to become acquainted with the Customer’s lawful intellectual and/or industrial property rights with respect to material delivered and/or Service rendered as a consequence of this Contract.

 

8.3       All ADPS’s intellectual or industrial property rights that are a result of or arise from the Services that ADPS provides the Customer rest solely with ADPS, its licensors or its suppliers. The Customer is not allowed to reproduce, disclose to third parties, allow third parties to use, give to third parties, or to issue licences for material produced or provided by ADPS including, but not confined to, databases, offers, concepts, strategies, designs, documentation, software or other material, without the prior and express written permission of ADPS.

 

8.4       If, contrary to the provisions of 8.3, ADPS is prepared to undertake the transfer of intellectual or industrial property rights, such an undertaking can only expressly be entered into in writing. If the parties expressly agree in writing that the intellectual or industrial property rights in respect of databases, offers, concepts, strategies, designs, documents, software or other material, developed specifically for the Customer, will be transferred to the Customer, this will not curtail ADPS’s authority to apply and exploit the parts, general principles, ideas, designs, documentation, works and so on in question, without any restrictions whatsoever, for other purposes, either for themselves or for third parties. Nor does the transfer of intellectual or industrial property rights affect ADPS’s right to undertake developments, either on their own behalf or on behalf of third parties, that are similar to the ones that have been or will be done for the Customer.

 

 

Article 9         Force majeure

 

9.1       If ADPS, through circumstances beyond its control, cannot meet its obligations to the Customer, these obligations will be suspended for as long as the circumstances persist. At the same time, ADPS is entitled to terminate the Contract, in part or entirely, in the event of circumstances beyond its control.

 

9.2       Circumstances beyond ADPS’s control are understood to mean any circumstances that are independent on ADPS’s will, through which the performance of its obligations to the Customer are hindered in part or entirely, or through which the performance of its obligations cannot be expected to be met, in all reasonableness, regardless of whether the circumstances at the time of entering the Contract could have been foreseen. These circumstances include: strikes and lockouts, interruptions to business operations or other problems in production among ADPS’s suppliers, and/or in its own or third party transport and/or measures taken by any government authority.

 

 

Article 10       Miscellaneous

 

10.1     ADPS is permitted to delegate the rights and obligations described in the Contract with the Customer to third parties.

 

10.2     ADPS is entitled to increase the agreed rates on the grounds of subsequent increases in cost prices and charge the Customer directly.

 

10.3     In the event of the Customer’s death, in the event of a merger of the Customer’s business with a third party, or the transfer of the Customer’s business to a third party, the Contract will continue in the name and for the account of the Customer’s successor in title, unless otherwise agreed to in writing.

 

10.4     If any of the provisions of these General Terms and Conditions prove to be non-binding, void or voidable, the remaining provisions of these General Terms and Conditions will remain in force. Parties will negotiate to amend these General Terms and Conditions in such a way that they remain as far as possible in agreement with the subject and objectives of these General Terms and Conditions.

 

10.5     If any of the provisions of these General Terms and Conditions are contrary to the Contract, the General Terms and Conditions will prevail.

 

 

Article 11       Amendments to General Terms and Conditions

 

11.1     ADPS is entitled to amend the General Terms and Conditions and to declare the amended General Terms and Conditions to be applicable to existing contracts.

 

11.2     If ADPS declares the amended General Terms and Conditions to be applicable to existing contracts, ADPS will make the amendments known in a timely fashion. These amendments will enter into force 30 days after written notice of the changes has been made, or at a later date given in the notification.

 

11.3     If the Customer does not wish to accept an amendment to the General Terms and Conditions, the Customer can terminate the agreement on the date on which the amended condition enters into force, on the condition that the Customer notifies ADPS in writing and by registered post as soon as possible, but not later than two weeks after the written notification of the amendment. 

 

 

Article 12       Disputes and applicable law

 

12.1     Any disputes arising from these General Terms and Conditions and/or the Contract between ADPS and the Customer are subject exclusively to the jurisdiction of the competent court in Amsterdam, the Netherlands, unless ADPS and the Customer agree otherwise in writing.

 

12.2     The Contract upon which these General Terms and Conditions apply, as well as all ADPS offers, are governed exclusively by Dutch law.