1.1.1 These Terms and Conditions apply to all offers and/or deliveries made by CloudSuite, and agreements and/or other legal relationships between CloudSuite and the Customer, the resulting provisions and related activities regardless of whether they are made pursuant to a written, oral and/or electronic agreement, unless otherwise agreed in writing.
1.1.2 Any purchase or other conditions of the Customer are not applicable. The applicability of any purchase conditions or other terms and conditions of the Customer or third parties on behalf of the Customer is explicitly rejected by CloudSuite unless they are explicitly accepted in writing by CloudSuite.
1.1.3 The General Terms and Conditions of CloudSuite are filed with the Chamber of Commerce of Central Netherlands under number 50763547.
1.1.4 CloudSuite is at all times authorised to add amendments or addtions to the General Terms and Conditions of CloudSuite. The amended General Terms and Conditions of CloudSuite shall continue to apply unless a written objection is made within 30 (thirty) days after the date of the amendment.
1.1.5 Amendments and additions to the General Terms and Conditions of CloudSuite and/or the agreements concluded between CloudSuite and the Customer are only valid if they have been put down in writing by CloudSuite.
1.1.6 If the term Customer includes several persons or companies, these are jointly and severally liable for the fulfilment of all obligations under the agreement concluded
1.1.7 The article headings of these terms and conditions are only intended to increase their readability. The content and meaning of the article placed under a particular heading is therefore not limited to that heading.
1.2.1 In the General Terms and Conditions of CloudSuite, the following words and expressions are capitalized. The following words and terms in the singular shall have the same meaning in the plural and vice versa.
1.2.2 Third Party General Conditions:
Third Party General Terms and Conditions include delivery terms, licensing terms, warranty terms and other terms and conditions used by third parties.
1.2.3 CLOUD service:
includes the direct and/or indirect (through third parties) provision by CloudSuite of Products through a (web) application or website of the Customer. Hosting is a part of the CLOUD service.
CloudSuite B.V. and its legal successors or a company or partner affiliated to CloudSuite B.V. which enters into a legal relationship with the Customer and has declared the General Terms and Conditions of CloudSuite applicable.
1.2.5 CloudSuite Products:
All products and services provided by CloudSuite, the resulting provisions and related activities of which do not originate from third parties and of which any intellectual property rights, industrial property rights and other rights are vested in CloudSuite.
Reserve copies of digital data and/or files.
All courses, education, training and related activities.
1.2.8 Third Party Products:
All products and services provided by CloudSuite, the resulting facilities and related activities of which originate from third parties and of which any intellectual property rights, industrial property rights and other rights are in principle not owned by CloudSuite. Third party products may consist of Open Source Software.
1.2.9 Fair Use:
The reasonable use by the Customer of the Products, including but not limited to the load on the Servers.
As further described in article 6.3.
As further described in article 5.6.
As further described in article 5.8.
The provision and Maintenance of and access to web space for storing information, images, or other content on servers(s) located in a Data Centre anywhere in the world. Hosting can be provided as a Third Party Product.
1.2.14 Identification Data:
Log-in name, passwords, addressing data and/or other codes.
1.2.15 Post calculation:
As further described in article 6.4.
1.2.16 Object Code:
The computer programming code mainly in binary format. The Object Code is directly executable by a computer after processing, without reverse engineering, compilation, or assembly.
Maintenance of CLOUD service and/or Maintenance of Hosting.
Maintenance of CLOUD Service:
Preventive and corrective maintenance of CLOUD Service.
1.2.19 Hosting Maintenance:
Preventive and corrective maintenance on the Hosting Network and on the servers directly connected to it in the Data Centre owned by the supplier of the Third Party Hosting Product, CloudSuite Software or Customer, which are used for Hosting.
Anyone who requests and orders the delivery of Products.
1.2.21 Open Source Software:
Computer software of which the accompanying Source Code may be inspected, used, improved, supplemented and distributed by the Licensee, as further explained at: http://www.opensource.org/docs/definition.php.
1.2.22 Process Data:
The data entered within the CLOUD Service by Customer and/or the data entered by third parties.
All CloudSuite Products and/or Third Party Products provided by CloudSuite, the resulting provisions and related work. CLOUD service falls under Products.
1.2.24 Source Code:
The computer programming code which can be represented in a format readable and understandable by a programmer of average level. It includes related Source Code system documentation, comments and procedural code. The Source Code does not include the Object Code.
As further described in article 2.4.
As further described in article 6.5.
1.2.27 Working Days:
Normal Dutch working hours (8.30-17.30 CET) and days (Monday to Friday) excluding national holidays.
1.3.1 An agreement between CloudSuite and the Customer for which no further contract and/or term has been agreed has a term of 1 (one) year if the delivery concerns a Product, such as but not limited to Maintenance and Support, for which an amount is charged periodically. If this agreement is not terminated or not terminated on time, it shall be continued each time for a period of 1 (one) year.
1.3.2 Termination of the agreement, as described in article 1.3.1, takes place by means of a registered letter, which is received by the other party no later than 40 (forty) days before the extension of the agreement takes effect.
1.3.3 Each party shall be entitled to terminate the agreement in whole or in part by means of a registered letter without legal intervention if the party in default continues to fail to comply with its obligations after having been summoned to do so in writing and having been granted a reasonable period of time to do so.
1.3.4 Furthermore, CloudSuite is entitled, with immediate effect and without legal intervention, by means of an extrajudicial declaration, to terminate all or part of the agreement and/or the offers or to cancel them if the Customer is a natural person and dies, if the Customer submits a legal request for debt restructuring, if a petition for bankruptcy or suspension of payment has been filed for the Customer or if the Customer is declared bankrupt or granted a suspension of payment or if the Customer's company is liquidated or defunct for any reason other than reconstruction or company merger. In these cases, any claim of CloudSuite against the Customer is immediately due and payable in full.
1.3.5 After the end of the agreement, for whatever reason, the Customer can no longer derive any rights from the agreement, leaving unaffected the existence of the obligations of the parties which by their nature are intended to continue after the end of the agreement, such as but not limited to the obligations concerning property rights, confidentiality, and non-competition clause.
1.4 Customer cooperation/information obligations
1.4.1 All assignments are carried out by CloudSuite based on the data, information, requests and/or requirements made known to CloudSuite by the Customer.
1.4.2 The Customer shall provide CloudSuite with all cooperation and all useful and necessary data and/or other information required for a proper execution of the agreement. The Customer guarantees the accuracy of these data and/or other information.
1.4.3 If data, information, requests and/or requirements necessary for the execution of the agreement are not available to CloudSuite, or not within the stipulated time frame and/or not in accordance with the agreements made, or if the Customer fails to fulfil its obligations in any other way, CloudSuite is entitled to terminate or dissolve the agreement or to suspend the execution of the agreement and will be entitled to charge the costs incurred by CloudSuite according to its usual rates.
1.4.4 If changes or new facts arise regarding the data, information, requirements and/or demands made available earlier, CloudSuite will at all times be entitled, in consultation with the Customer, to adjust the agreement to these new circumstances or to dissolve or terminate the agreement.
1.5 Confidentiality/Competition clause
1.5.1 CloudSuite and the Customer mutually undertake to keep all data and information about each other's organization, clients, files and Products, of which the parties become aware when performing work for each other or for the Customer's clients, confidential. Data and information may only be used for the execution of the agreement concluded between the parties.
1.5.2 CloudSuite is entitled to place the name and logo of the Client to which rights have been granted on the Products on the CloudSuite website and/or a reference list and to make this available to third parties for information purposes.
1.5.3 The Customer shall not enter into any direct or indirect business, employment or other similar relationship with any employee of CloudSuite for a period of 12 (twelve) months after termination or dissolution of the agreement, except with the written permission of CloudSuite. The Customer shall ensure that its customers comply with the aforementioned obligation.
1.5.4 In the event of an infringement of the provisions of article 1.5.3, the Customer shall, without further notice, owe CloudSuite an immediately payable penalty of € 50,000 (fifty thousand euro) for each infringement, without prejudice to CloudSuite’s right to claim compensation for the damage fully incurred.
1.6.1 The total liability of CloudSuite shall, subject to articles 1.6.2 and 1.6.3, remain limited to compensation for direct damage, up to a maximum of the price stipulated in the agreement (excluding VAT) with a maximum of €500,000 (five hundred thousand euro), whereby a series of related events shall be considered as a single event.
1.6.2 If the agreement also consists of a continuing performance agreement with a term of more than 1 (one) year and CloudSuite's liability arises from this continuing performance agreement, the agreed price is set at the total of the fees (exclusive of VAT) actually paid by the Customer to CloudSuite on the basis of the continuing performance agreement for 1 (one) year (i.e. the year in which the damage occurred) with a maximum of €5000,000 (fifty hundred thousand euro).
1.6.3 CloudSuite has insured itself against damage. CloudSuite is in any case not liable for any further damage and will not compensate this further damage incurred by the Customer under the agreement concluded with CloudSuite, regardless of the reason, including possible claims by third parties against the Customer, than is covered by this insurance and for which compensation has been paid plus CloudSuite’s excess, unless in the case of intent or gross negligence.
1.6.4 The total liability of CloudSuite for damage caused by death or physical injury shall under no circumstances exceed €2,500,000 (two and a half million euros), whereby a series of related events shall be regarded as a single event.
1.6.5 Direct damage is exclusively understood as:
The reasonable costs incurred to establish the cause and the extent of the damage;
The reasonable costs incurred to prevent or limit the damage, insofar as the Customer demonstrates that these costs have led to a limitation of the damage.
1.6.6 Liability of CloudSuite for indirect damage, including consequential damage, loss of profit, lost savings, destruction or loss of files and/or data, damage caused by delay, incurred losses, damage caused by the failure of the Customer to provide information and/or cooperation, damage caused by operational inactivity or claims by third parties against the Customer, is explicitly excluded.
1.6.7 Except for the case mentioned in article 1.6, CloudSuite is not liable for any damages, regardless of the ground on which an action for damages would be based.
1.6.8 The liability of CloudSuite only arises if the Customer immediately and properly gives CloudSuite written notice of default, stating a reasonable period to remedy the failure and if CloudSuite continues to fail imputably in fulfilling its obligations after this period. The notice of default should contain a description of the shortcoming that is as detailed as possible, so that CloudSuite is able to respond adequately.
1.6.9 A condition for the existence of any right to compensation is always that the Customer notifies CloudSuite in writing by registered mail within 60 (sixty) days after the damage arose and takes measures to limit the damage as much as possible.
1.6.10 The Customer indemnifies CloudSuite against all claims by third parties due to liability as a consequence of a defect in a product, system or service which the Customer delivered to a third party and which product, system or service consisted wholly or in part of what was delivered by CloudSuite.
1.6.11 CloudSuite accepts no liability for damage of any kind caused by Third Party Products which CloudSuite has delivered to the Customer. If possible, CloudSuite will transfer its rights to claim compensation from the supplier of the Third Party Product in question to the Customer.
1.6.12 CloudSuite is not liable for damage of any kind resulting from the failure to provide timely Support, Maintenance, CLOUD Service and Warranty.
1.7.1 The agreement concluded between CloudSuite and the Customer and the rights and obligations arising from this agreement cannot be transferred to third parties without the prior written permission of CloudSuite.
1.7.2 The Customer authorizes CloudSuite in advance, without needing the express permission of the Customer, to transfer the entire agreement or parts thereof to: 1. parent companies, sister companies and/or subsidiaries; 2. a third party in the event of a merger or takeover of CloudSuite. If this happens, CloudSuite will inform the Customer about this.
1.8 Non-attributable Failure
1.8.1 Neither party is required to fulfil any obligation if it is prevented from doing so due to a circumstance which cannot be attributed to its fault, nor can it be held accountable for by law, legal act or generally accepted practice. The aforementioned circumstances include circumstances beyond the control of CloudSuite and business risks of CloudSuite, such as but not limited to failure of suppliers of CloudSuite, the late availability of necessary data, information and/or specifications, changes in such data, incorrect specifications and/or functional descriptions of Third Party Products and/or products delivered by third parties, adverse weather conditions, fire, explosion, electricity failure, network failure, flooding, illness, lack of staff, strikes, slowdowns or other industrial disputes, accidents, acts of government, the impossibility of obtaining any required permit or licence, scarcity of materials, theft, traffic hindrance and/or transport impediments.
1.8.2 If the non-attributable failure is of a temporary nature, CloudSuite can suspend the agreement until the situation in question no longer occurs, without being required to pay any compensation.
1.8.3 In the event of an unattributable failure, CloudSuite reserves the right to claim payment for services already rendered by CloudSuite before the unattributable failure became known.
1.8.4 If the non-attributable failure of one of the parties continues for more than three months, both parties are separately entitled to terminate the agreement without being required to pay any compensation for the termination.
2.1 Right of use of Software
2.1.1 CloudSuite grants the Customer the non-exclusive right to use the Products and accompanying documentation.
2.1.2 The right of use is limited to the exclusive use of the Products on the processing unit agreed with CloudSuite and the number of named users agreed with CloudSuite.
2.1.3 The right of use for software Products is limited to the Object Code. Rights to and the Source Codes themselves are not granted, unless explicitly agreed otherwise in writing.
2.1.4 The Customer is prohibited from copying, duplicating or modifying the Products in any way, either itself and/or through third parties, without the prior written permission of CloudSuite.
2.1.5 The right to use the Products is not transferable to third parties (third parties also include holding, sister and/or subsidiary companies of Customer).
2.1.6 Customer is not authorised to make the Products available to third parties under any title or in any way whatsoever (third parties also include holding, sister and/or subsidiary companies of Customer).
2.1.7 Reverse engineering or decompilation of the Products by Customer is prohibited, unless explicitly permitted by law.
2.1.8 The right of use becomes effective after payment by Customer has been made and all other obligations incumbent on Customer have been met.
2.1.9 The extent of the right of use of Third Party Products is determined by the Third Party General Terms and Conditions as set forth in article 4.
2.2.1 CloudSuite is entitled to incorporate technical limitations and control mechanisms in the Products to prevent and/or verify that the actual number of users, servers and/or workstations does not exceed the agreed number.
2.2.2 If the aforementioned checks or other measures show that the actual number of users, servers and/or workstations exceeds the number of agreed users, servers and/or workstations, Customer must immediately purchase the number of missing user, server and/or workstation licences, increased by a penalty of 25% of the additional amount payable. Amounts due for Maintenance and Support for the missing user, server and/or workstation licences will be charged to Customer with retrospective effect, up to the moment of the last delivery of the previously agreed number of users, servers and/or workstations.
2.3.1 All Products which can be considered advice or which are of an advisory nature will only be provided to the best of CloudSuite’s knowledge and ability.
2.3.2 CloudSuite is not responsible and/or liable if the work arising from the advice results in a project of the Customer not being able to be completed within the agreed budget, the agreed time and any other previously agreed conditions.
2.3.3 CloudSuite will provide advice based on the preconditions specified by CloudSuite and information obtained from the Customer as stated in article 1.4. If it appears that not all relevant information has been obtained and/or other problems and/or insights arise, such as but not limited to incompatibility problems (products are incompatible with each other), the advice given may be adjusted to this new situation.
2.4.1 Support consists of giving verbal (telephonic) and written (e-mail) advice concerning the use and operation of the CLOUD Service. Support is in principle provided on the basis of a periodic Advance. Based on this periodic Advance Client is entitled to 16 (sixteen) response hours per year. If these pre-allocated hours are exceeded, the applicable hourly rate will be charged.
2.4.2 CloudSuite will only provide Support on the most recent updates of the CloudSuite Products. CloudSuite is at its own discretion entitled to provide Support on older versions, releases, etc. of the CloudSuite Products.
2.5.1 All assignments consisting partly or entirely of customisation are charged on
the basis of Fixed Price or Subsequent Calculation.
2.5.2 The Parties shall specify in writing which CloudSuite Product is to be developed and how this is to be done. CloudSuite will carry out the CloudSuite Product development with due care based on the data provided by the Customer, with the accuracy, completeness and consistency guaranteed by the Customer.
2.5.3 CloudSuite is entitled, but not obliged, to investigate the accuracy, completeness and/or consistency of the data or specifications provided to CloudSuite and, if any inaccuracies, incompleteness, or inconsistencies are found, to suspend the agreed activities until the Customer has remedied the deficiencies in question.
2.5.4 The development of custom work takes place according to the following primary phases:
Functional design phase.
Technical design phase.
Development of modules phase.
If Customer does not wish to follow the aforementioned phases, this will be entirely at the risk (and expense) of Customer.
2.5.5 After contact between CloudSuite and the Customer, a report can be provided to the Customer. If the Client does not expressly indicate to the contrary in writing within 4 (four) Business Days after the report has been sent to the Customer, the Customer is deemed to have approved the report and to agree with its contents. If urgency is required, CloudSuite can request the Customer to immediately report whether or not it approves the report.
2.5.6 Overruns of up to 10% of the fees on which the price is based are deemed to be tacitly accepted and do not need to be reported as such to and/or approved by the Customer.
2.5.7 Intellectual property rights, industrial property rights or other customary rights remain with CloudSuite at all times, as described in article 7.1.
2.6 Additional work
2.6.1 If CloudSuite believes that a project change specified by the Customer is an additional work order, CloudSuite will report this to the Customer before proceeding to execute the order. The notification will be followed by a statement of the price and other conditions on the request of the Client. The Customer shall decide on the proposed additional work as soon as possible.
2.6.2 Customer is deemed to have agreed to the performance of additional work and the associated costs if Customer has allowed the additional work to take place without first indicating in writing that it does not wish to see the additional work done.
2.7 Work performed
3.1 Cloud Service General
3.1.1 The Cloud Service is provided exclusively at a location approved
by CloudSuite and on equipment approved by CloudSuite.
3.1.2 CloudSuite may at its sole discretion offer the Customer the possibility to make adjustments, additions and/or changes to the Cloud Service offered. If this option is offered to the Customer, the Customer is responsible and liable for all adjustments, additions and/or changes and the resulting consequences.
3.1.3 In the context of access to and use of the Cloud Service, Customer has equipment and software directly or indirectly available that comply with the standards and/or requirements set by CloudSuite and communicated to Customer directly or indirectly. The Customer shall also continue to comply with the conditions set out in this paragraph. If and as long as equipment and/or software do not meet these requirements, the obligation of CloudSuite to provide access to the Cloud Service and its use by CloudSuite will be suspended.
3.1.4 The Customer shall enable CloudSuite to check whether the standards and/or requirements referred to in article 3.1.3 are observed.
3.1.5 If, after the check referred to in article 3.1.4, the Customer still fails to comply with the standards and/or requirements referred to in article 3.1.3, CloudSuite is entitled to terminate or dissolve the agreement in whole or in part without prior written notice of default and/or judicial intervention.
3.1.6 The Customer is obligated to follow the instructions of CloudSuite regarding the Cloud Service.
3.1.7 CloudSuite is entitled to inspect log files and the like for the purpose of analysing the use of the Cloud Service. The results of such an analysis will not be made available to third parties (third parties do not include parent companies and/or subsidiaries of CloudSuite). This does not apply to figures and data regarding the use of the Cloud Service that are not directly traceable to the use of Customer.
3.1.8 If the Customer discovers a malfunction, it must immediately report this to CloudSuite. After the Customer has reported a failure, CloudSuite will take the measures that lead to or could possibly lead to a recovery.
3.1.9 The costs for remedying the failure are for the account of the Customer if it appears that the cause of the failure is the result of its injudicious use or is due to its actions or omissions contrary to the agreement.
3.1.10 CloudSuite shall notify Customer in advance of intended Maintenance with regard to the Cloud Service if this Maintenance will lead to problems with regard to gaining access to the Cloud Service or to the Cloud Service not being available. In that case Maintenance will take place from 18.00 until 08.00 hrs (CET). Other Maintenance will be carried out during Business Days.
3.2 Obligations of CloudSuite Cloud Service
3.2.1 CloudSuite shall ensure that the Cloud Service is made available. To the best of its ability and where CloudSuite can exert influence, CloudSuite will strive for an availability percentage of:
99% from Monday to Friday between 08.00 and 18.00 (CET);
95% from Monday to Friday between 18.00 and 08.00 (CET);
90% from Saturday to Sunday between 00.00 and 24.00 (CET).
3.2.2 The percentage referred to in article 3.2.1 is measured over a calendar year. This does not include the time for Maintenance.
3.2.3 CloudSuite does not guarantee that telephone lines, the Internet and/or other networks will provide optimal use and access.
3.2.4 CloudSuite has no obligations regarding the availability, reliability or other performance requirements of telephone lines, the Internet and/or other networks and the resulting facilities.
3.2.5 CloudSuite shall endeavour to take all useful and necessary measures to ensure the proper functioning and continuity of the Cloud Service. CloudSuite uses the most recent and market-prevailing virus protection programs.
3.2.6 CloudSuite shall endeavour to ensure adequate physical and logical security against unauthorised access by third parties to the computer equipment and computer programs used by CloudSuite and/or stored Process Data in the context of the provision(s) agreed in the Agreement.
3.3.1 The Cloud Service is accessible to Customer by means of a browser. CloudSuite will specify the browsers for which the Cloud Service is optimised at the time the agreement is concluded.
3.3.2 CloudSuite is not obliged to maintain optimal access to the Cloud Service through the browsers referred to in article 3.3.1. CloudSuite is entitled, without being obligated to pay any compensation, to make changes to the Cloud Service that may affect the browsers used by the Customer and/or recommended by CloudSuite.
3.3.3 If a situation as described in article 3.3.2 occurs, CloudSuite will make reasonable efforts to enable the Customer to switch to a different browser. The costs incurred by the Customer in this regard shall be borne by the Customer.
3.4 Use of Identification Data
3.4.1 CloudSuite will only make Identification Data available to the Customer for the use of Products. The Customer will handle these Identification Codes with care. In the event of loss, theft and/or other forms of unlawful use, the Customer will notify CloudSuite, so that the parties can take appropriate measures.
3.4.2 The Customer bears all responsibility, liability and costs caused by the use of the Identification Data, used and/or distributed by the Customer. In no event shall CloudSuite
be liable for the misuse and/or illegal use of the Identification Data.
3.4.3 If it can be reasonably suspected that misuse or illegal use has been made of the Identification Data of the Customer, CloudSuite can give the Customer instructions, which must be complied with.
3.4.4 If it is established that misuse has been made of the Identification Data or that the Customer has not complied with the instructions as referred to in article 3.4.3, the Customer is immediately in default.
3.5 Changes in the Cloud Service
3.5.1 CloudSuite is entitled to make additions and/or changes to the Cloud Service without any written notice concerning but not limited to the following
1. access procedures, such as:
– procedures relating to operational rules;
– security requirements.
2. changes to a third-party provider/supplier, location, hardware, software and other facilities that are important for making the Cloud Service available;
3. interface, look and feel;
3.5.2 If the changes result in a demonstrable and significant negative change to the working method of the Customer’s company and/or the functionality of the Cloud Service, the Customer may, after having demonstrated the deterioration in writing, request CloudSuite in writing to offer an alternative. If CloudSuite does not offer a reasonable alternative, the Customer is entitled to terminate the use of the Cloud Service, without CloudSuite being required to pay any compensation or refund of any amounts already paid.
3.6 Data Traffic of the Customer
3.6.1 CloudSuite has no control over and/or insight into the content of the data traffic from and/or to the Customer. CloudSuite only acts as an intermediary. CloudSuite does not give any guarantees regarding the content of data, including its reliability and completeness.
3.6.2 The Customer is responsible for the content of data traffic originating from the Customer. Where applicable, the code of conduct, as set out in article 3.9, applies to Customer and its users.
3.6.3 The Customer indemnifies and holds CloudSuite harmless from any claim, accusation or court action by a third party in connection with (the content of) the data traffic or the information originating from the Customer.
3.6.4 Notwithstanding the provisions of article 7, Process Data remains the (intellectual) property of the Customer. The Customer grants CloudSuite a perpetual user and processing right to the Process Data free of charge. Process Data can only be made available to third parties if it is not directly traceable to Customer.
3.6.5 Process data is in principle stored for a maximum period of 3 (three) years as long as the agreement continues. After the end of the agreement, CloudSuite is not required to store Process Data.
3.6.6 CloudSuite will cooperate in transferring Process Data and/or other data to another application if requested by the Customer. CloudSuite never guarantees that the Process Data and/or other data present during the term of the Agreement and/or after the end of the Agreement can be transferred to another application.
3.6.7 All costs related to the transfer of Process Data and/or other data at the request of the Customer to another application are fully for the account of the Customer.
3.7 Customer Obligations of the Cloud Service
3.7.1 If the Cloud Service includes hosting a website of the Customer and/or on behalf of the Customer, the Customer must have a domain name issued and registered by an authorised institution in accordance with the Third Party General Terms and Conditions used by the relevant institution. The Customer indemnifies and holds CloudSuite harmless from any claim, accusation or litigation related to (the use of) the domain name on behalf of or by the Customer.
3.7.2 If by means of the Cloud Service personal data and/or other data is transported or commercial and/or other activities are undertaken through the Cloud Service, the Customer shall indemnify CloudSuite against any liability, costs or damage as a result of claims from third parties in the event that these personal data and/or other data are exported or commercial and/or other activities are undertaken in violation of the relevant (privacy) laws and/or other regulations.
3.7.3 The Customer shall immediately inform CloudSuite in writing of any changes relevant to the proper execution of the Cloud Service.
3.7.4 The Customer shall comply with the instructions of CloudSuite regarding Fair Use. If the Customer does not follow the instructions given by CloudSuite, CloudSuite is authorised to use technical means to reduce the load caused by the Customer or, if the load continues to be excessive, to stop providing the Cloud Service to the Customer. CloudSuite shall never be liable for damage of any kind incurred by the Customer or third parties as a result of the measures taken by CloudSuite and/or third parties.
3.8 Personal data
3.8.1 The Customer is the "responsible party" in the meaning of the Dutch Law for the Protection of Personal Information [Wet bescherming persoonsgegevens] and is therefore responsible for the protection of personal data which are sent or processed by the equipment and/or software of CloudSuite on behalf of the Customer.
3.8.2 The Customer shall indemnify CloudSuite against any claims for infringement of privacy.
3.8.3 Insofar as Customer is entitled to do so, Customer explicitly agrees to the inclusion of (personal) data of users in the personal data records of CloudSuite for administrative and management purposes. This registration of persons includes Identification Data and Process Data and is only accessible to CloudSuite. This data is not provided to third parties, except when CloudSuite is required to do so by law or a court order.
3.8.4 With the exception of the provisions of article 3.8.1, CloudSuite, as a “processor” within the meaning of the Law for the Protection of Personal Information, is responsible for the protection of personal data, the use of which by CloudSuite is necessary for the proper execution of the agreement, and it shall indemnify the Customer against liability in the event that the Customer is sued by a person on the grounds of a violation of privacy as a result of an act or omission by CloudSuite.
3.9 Code of Conduct
3.9.1 The Cloud Service and/or the other facilities offered shall be used in a responsible manner. It is prohibited to use the Cloud Service and/or the other facilities offered in such a way that: damage may occur to the systems of CloudSuite and/or third parties; disruptions may occur in its use.
3.9.2 Customer shall ensure that such damages and/or disruptions are not the result of misconfiguration on its part.
3.9.3 It is prohibited to use the Cloud Service and/or other facilities offered for illegal practices and/or in breach of the Agreement. This includes the following actions and behaviour:
1. infringing on the rights of third parties or enabling the infringement of the rights of third parties, such as but not limited to intellectual property rights and privacy rights;
2. non-compliance with the applicable laws and/or other regulations in this field;
3. spamming (the unsolicited distribution – or enabling third parties to distribute – of advertising messages and other communications);
4. the unauthorised penetration (hacking) of accounts, systems and/or networks of third parties and/or CloudSuite and/or the performance and/or omission of any other act which enables hacking.
3.9.4 CloudSuite reserves the right, at its own discretion, if compelled to do so by law or court order and/or if a third party informs CloudSuite and/or suspects that by means of the Cloud Service, the rights of a third party are infringed, violates the provisions of the CloudSuite General Terms and Conditions and/or the agreement, and fails to fulfil its obligations in this regard, or fails to do so properly or in full, to discontinue the use of the Cloud Service and/or the other facilities offered, to remove the information in question and/or to suspend its obligations, until the obligations in question have been fulfilled.
3.9.5 CloudSuite and/or third parties will never be liable for damage of any kind suffered by the Customer and/or third parties as a result of the measures taken by and/or on behalf of CloudSuite based on article 3.9.4. The obligations to pay the agreed amounts remain fully applicable during the measures taken by and/or on behalf of CloudSuite under article 3.9.4.
3.9.6 If the seriousness of the actions and/or failure to act of the Customer justifies this and/or these actions are continued despite the measures taken by and/or on behalf of CloudSuite, as set out in article 3.9.4, CloudSuite will be entitled to terminate the agreement in accordance with article 1.3.3, without CloudSuite being obliged to pay any compensation or to refund any monies already paid.
4.1 Third Party Products
4.1.1 CloudSuite is entitled to provide Third Party Products or to use Third Party Products to fulfil its obligations under the agreement. CloudSuite is not responsible for Third Party Products, unless otherwise agreed in writing.
4.1.2 If CloudSuite supplies Third Party Products to the Customer, the Third Party General Terms and Conditions apply to the agreement in addition to these General Terms and Conditions of CloudSuite.
4.1.3 CloudSuite delivers rights to Third Party Products under the conditions described in the Third Party General Terms and Conditions.
4.1.4 No Maintenance, Support or other services are provided by CloudSuite for Third Party Products, unless otherwise agreed in writing.
4.1.5 With regard to Third Party Products delivered, CloudSuite provides the following services:
the service for Third Party Products, under no more than the same terms and conditions as stated in the General Terms and Conditions for Third Parties.
The warranty for the period and under no more than the same conditions as those stated in the Third Party General Terms and Conditions.
4.1.6 Repairs of Third Party Products:
Under no circumstances shall replacement of Third Party Products delivered take place, unless Customer explicitly requests this and pays the related costs as an Advance.
All repairs are subject to handling costs. If repairs are performed elsewhere than at CloudSuite, call-out charges, hourly wages and other related costs will also be charged.
4.2 Third Party General Terms and Conditions
4.2.1 The Third Party General Terms and Conditions stated to be applicable in these General Terms and Conditions of CloudSuite will be sent to you on request, if available from CloudSuite. The Third Party General Terms and Conditions will be made available in the same format and language as received by CloudSuite.
4.2.2 The General Terms and Conditions of CloudSuite take precedence over the Third Party General Terms and Conditions, unless stated otherwise. In the event of conflict between the General Terms of CloudSuite and the Third Party General Terms, CloudSuite can declare the conflicting provisions in the Third Party General Terms inapplicable or applicable.
5.1 (Delivery) terms
5.1.1 All delivery terms mentioned by CloudSuite and applicable to CloudSuite are determined to the best of its knowledge based on the data made known to CloudSuite and will be observed as much as possible.
5.1.2 (Delivery) periods are not considered to be strict deadlines within which delivery must take place, but periods within which CloudSuite will strive to deliver what has been agreed. If it is possible that any period will be exceeded, CloudSuite and the Customer will consult as soon as possible about a new period.
5.1.3 Exceeding any applicable (delivery) period by CloudSuite never constitutes an attributable failure by CloudSuite. CloudSuite accepts no liability whatsoever in the event that a delivery period is exceeded.
5.2.1 CloudSuite only undertakes to execute the agreement concluded between CloudSuite and the Customer after a signed copy of the agreement drawn up by CloudSuite has been received by CloudSuite and/or if all fees due have been paid on time and in full. If CloudSuite commences execution of the agreement before it has received a signed copy of the agreement and/or all due fees have been paid on time and in full, CloudSuite reserves the right to suspend execution of the agreement until a signed copy of the agreement has been received and/or all due fees have been paid on time and in full.
5.2.2 Rights, such as but not limited to the (ownership) transfer of Products, are granted to the Customer under the suspensive condition that the Customer pays the agreed fees on time and in full. In the event of default in payment, the Customer must return the Products to CloudSuite at its own expense within one week after receiving the instruction from CloudSuite to do so. All other remedies remain applicable.
5.2.3 If the Customer creates a new product from Products delivered by CloudSuite, the Customer shall do so for CloudSuite and shall keep the new product for CloudSuite until the Customer has paid all amounts due under the agreement in time and in full. CloudSuite retains all rights as owner of the new product until the Customer has paid in full and on time.
5.3.1 The Product is at the risk of the Customer from the moment of delivery, even if the ownership or the right of use has not yet been transferred. The Customer therefore remains liable for the (purchase) price, regardless of the destruction or loss of the Product due to a cause not attributable to CloudSuite.
5.3.2 The same applies from the moment when the Customer is in default with regard to an action with which the Customer must cooperate with the delivery.
5.4 Delivery, Installation and Acceptance Procedure
5.4.1 CloudSuite will deliver the Products to the Customer in accordance with the specifications recorded in writing by CloudSuite and, if desired by the Customer, install them.
5.4.2 Delivery of Products takes place by making the Products available to the Customer by means of log-in codes.
5.4.3 The delivery of services by or through CloudSuite takes place at the location(s) and at the times at which the services are performed.
5.4.4 The acceptance period for the Customer is 14 (fourteen) days after completion of the installation. During the acceptance period, Customer is not permitted to use the Products for productive and/or operational purposes.
5.4.5 The Products will be considered as accepted between the parties:
1. if an acceptance period applies: on the first day after the acceptance period; or
2. if CloudSuite receives a Test Report (article 5.5) before the end of the acceptance period: at the time that the Errors mentioned in that Test Report (article 5.6) have been repaired, without prejudice to the presence of minor Errors that do not prevent acceptance according to article 5.6.3.
5.4.6 If the Products are delivered and tested in phases and/or parts, non-acceptance of a certain phase and/or part will not affect possible acceptance of an earlier phase and/or another part.
5.4.7 In deviation of the above, if Customer makes any use of the Products for productive or operational purposes before the moment of acceptance, the Products will be considered fully accepted from the start of that use.
5.5 Test Report
5.5.1 If it becomes apparent during the acceptance period that the Products contain Errors, as described in article 5.6, which hinder the progress of the acceptance test, the Customer shall inform CloudSuite no later than the last day of the acceptance period by means of a written and detailed Test Report about the Errors, in which case the remaining acceptance period will be suspended until the Product has been adapted in such a way that the Errors are corrected.
5.6.1 Error(s) means the failure to satisfy the functional specifications established in writing
by CloudSuite and, in case of the development of customised CloudSuite Products, the functional specifications expressly agreed upon in writing. An Error is only deemed to exist if it can be demonstrated and reproduced. The Customer is required to report possible Errors to CloudSuite immediately.
5.6.2 The repair of Errors will take place at a location designated by CloudSuite. CloudSuite is entitled to implement temporary solutions, emergency solutions, workarounds and/or other problem-limiting measures.
5.6.3 Acceptance of the Products may not be withheld on grounds other than those related to the specifications explicitly agreed between the parties, nor due to the existence of minor errors which do not reasonably prevent the operational or productive use of the Products.
5.7 Change of Performance
5.7.1 CloudSuite may deliver other (Third Party) Products instead of the Products ordered by the Customer, provided that the operation and capacity do not differ substantially from the Products originally ordered.
5.7.2 If the agreement has been concluded with the intention of being executed by a specific person, CloudSuite will always be entitled to replace this person with one or more other persons with the same qualifications.
6.1 Prices and Payments
6.1.1 All prices are exclusive of VAT and exclusive of any other taxes imposed by the government. The amounts due will be charged inclusive of VAT and any other government taxes.
6.1.2 CloudSuite will invoice the Customer for the amounts due on a monthly basis and/or within other periods specified in the agreement. The Customer shall pay the amounts due within 14 (fourteen) days after the invoice date without being entitled to any deduction or set-off.
6.1.3 If the Customer fails to fulfil any payment obligation, the Customer is in default without any further demand or notice of default being required. The Customer owes CloudSuite all judicial and extrajudicial costs incurred for the collection of all amounts due by the Customer to CloudSuite, including but not limited to the reasonable costs of legal assistance. Extrajudicial collection costs amount to 15% of the amount owed, with a minimum of € 500 (five hundred euro). In any case, a monthly interest rate equal to the statutory interest rate increased by 3% will be charged on the amount owed by the Customer as from the date on which the Customer is in default.
6.1.4 CloudSuite is entitled to suspend its activities and other obligations until full payment has been made, without prejudice to the obligation of the Customer to fulfil its obligations.
6.1.5 If CloudSuite is not able to deliver due to a default of the Customer, CloudSuite is entitled to charge a monthly interest rate of 1.5% on the amount due.
6.1.6 The fee for Maintenance, Support and any other annual or periodic fees are due as an Advance at the conclusion of the agreement between the parties and will be charged to the Customer in a properly itemised manner prior to each new year or any other period during which the agreement between the parties continues.
6.1.7 The amount owed as referred to in article 6.1.1 may be increased by any order costs, shipping costs and costs of third parties. An increase can also occur if work for the Customer is performed outside the office of CloudSuite. For work performed outside the office of CloudSuite, hourly wages, travel and waiting time compensations, travel and/or mileage allowances, hotel expenses and any other costs related to such work are charged. The travel and waiting time allowance amounts to 50% of the applicable hourly rate. The method of transport is determined by CloudSuite. The foregoing also applies to work to be performed outside the Netherlands.
6.1.8 The above provisions do not affect other rights of CloudSuite based on shortcomings in the performance by the Customer.
6.2 Price changes
6.2.1 The prices agreed between CloudSuite and the Customer are based on, among other things, the costs of salaries, social security contributions, materials, and travel and accommodation costs etc., as well as the exchange rate between the currencies as applicable at the time of concluding the agreement. In the event of a change in one or more cost items and/or a change in the exchange rate, a change in the [Dutch] Consumer Price Index (CPI), or the CBS Business Services Index (Software Consultancy), CloudSuite is entitled to adjust its prices to these changes. CloudSuite will adjust its prices at least annually, on 1 January, based on the figures published by CBS, the Dutch Office for Statistics, on 1 January (and therefore possibly based on third-quarter figures) “CBS Price Index Software Consultancy”. Price revisions are rounded up to a multiple of € 5.
6.2.2 CloudSuite will offer the Customer the opportunity to take note of any price changes. If the Customer does not agree with a price change, the Customer is only entitled to terminate the agreement from the date the price change takes effect if the total price increase during 1 (one) year exceeds the inflation rate of the current year (or the previous year for price increases announced for the next year) published by CBS by more than 10%.
6.3 Fixed Price
6.3.1 In the case of a Fixed Price agreement, the work will be performed for a previously agreed amount.
6.3.2 Unless CloudSuite can invoke article 1.4.4, additional hours will not be charged.
6.5 Advance payment
6.4 Subsequent Calculation
6.4.1 If settlement takes place on the basis of Subsequent Calculation, this means that before CloudSuite commences the agreed work, it can make a rough estimate of the expected costs. After completion of the work, all actual costs incurred related to the work will be charged. The Customer is therefore aware that there is a possibility that the estimate made earlier could be lower than the costs actually incurred. If no settlement method is agreed upon beforehand, work will be performed on the basis of Subsequent Calculation.
7.1 Rights of CloudSuite and Customer
7.1.1 CloudSuite has the exclusive right to further develop the CloudSuite Products and to make their use available to third parties by means of licences.
7.1.2 Except in the case of Third Party Products, all intellectual property rights, industrial property rights and other rights resulting from any assignment carried out by CloudSuite, regardless of whether it concerns the delivery of an existing Product or a Product yet to be developed, remain vested in CloudSuite.
7.1.3 The Customer acknowledges that all present and future intellectual property rights, industrial property rights, other rights and the registration and/or application of the aforementioned rights and/or similar rights for the entire term and any extensions or renewals thereof now or in the future shall belong to CloudSuite or shall be transferred to it
7.1.4 The Customer is not permitted to remove or change any designation concerning intellectual property rights, industrial property rights, other rights, brands and trade names from the Products or to have a third party perform such actions.
7.1.5 The intellectual property rights, industrial property rights and other rights of a Product, or a part thereof, can only be transferred to the Customer by means of a written deed if CloudSuite has these rights.
7.1.6 If CloudSuite, the Customer or third parties make functional improvements or other changes to the Products, the intellectual property rights, industrial property rights and other rights vested in the improved or changed Products shall remain vested in CloudSuite or the third party entitled thereto. If CloudSuite or the third party entitled does not own the rights, the Customer will transfer the rights to CloudSuite or the third party entitled to them free of charge.
7.2.1 CloudSuite shall indemnify the Customer against any action based on the allegation that the CloudSuite Products infringe a copyright valid in the Netherlands. CloudSuite will pay the costs and damages awarded in the final judgment, provided that the Customer:
1. immediately, but no later than within 10 (ten) days after the alleged copyright infringement has been brought to the attention of the Customer or when the Customer could reasonably have taken note of it, inform CloudSuite in writing of the claim; and
2. leave the overall handling of the case, including negotiations about a settlement, to CloudSuite.
If such an action is brought or the possibility thereof exists, CloudSuite reserves the right to acquire the licensing right or sub-licensing right to the CloudSuite Product or to modify the CloudSuite Product in such a way that it no longer infringes a copyright valid in the Netherlands. If CloudSuite deems the foregoing options to be unreasonable, CloudSuite may take back the delivered CloudSuite Product in exchange for payment of the price already paid for this CloudSuite Product minus a reasonable fee for the use made of the CloudSuite Product.
7.2.2 CloudSuite will not indemnify the Customer against an action if:
1. such action is based on the allegation that the Third Party Products delivered to the Customer infringe an intellectual property right, industrial property right or other right applicable in the Netherlands or elsewhere;
2. the products delivered by the Customer are part of, or are delivered in connection with, a Product and this combination infringes an intellectual property right, industrial property right or other right applicable in the Netherlands or elsewhere;
7.2.3 If CloudSuite and the Customer have agreed that the intellectual property rights, industrial property rights or other rights of a Product or part thereof are to be transferred to the Customer, the Customer shall indemnify CloudSuite against any action based on the allegation that the Product or part thereof infringes an intellectual property right, industrial property right or other right belonging to a third party.