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General terms and conditions of CloudInventor B.V.

1 GENERAL2 CONCLUSION OF THE AGREEMENT3 DELIVERY4 CANCELLATION5 PRICES6 FORCE MAJEURE7 INTELLECTUAL PROPERTY8 LIABILITY9 COMPLAINTS10 RETENTION OF TITLE11 PAYMENT12 TERMINATION/CANCELLATION13 APPLICABLE LAW AND DISPUTES14 PROCESSING OF PERSONAL DATA

1 GENERAL

These are the General Terms and Conditions of CloudInventor B.V. (hereinafter referred to as CloudInventor). If there is a difference in the English version and the Dutch version, The Dutch version takes precedence over the English version 

  1. All our offers, agreements and their execution are exclusively governed by these terms. Deviations must be expressly agreed upon in writing with us.
  2. In these terms, “the other party” is understood to mean: any natural or legal person who has entered into an agreement with our company, or wishes to do so, as well as their representative(s), authorised person(s), legal successors and heirs.
  3. The own terms and conditions used by the other party remain unaffected insofar as they do not conflict with these terms. In that case, our terms will always take precedence, even if priority has been agreed otherwise.
  4. The Acceptable Use Policy, Abuse Policy and Sensible Use Policy that we apply also apply to all agreements made with us and their execution.
  5. In the event of a conflict between this text and a version of these terms in another language, the Dutch text shall prevail.

2 CONCLUSION OF THE AGREEMENT

  1. All offers and quotations made by us, in whatever form, are non-binding, unless expressly stated otherwise by us.
  2. If an offer is accompanied by demos, drawings, estimates, plans, catalogues or other documents or digital information on products, these shall remain our property at all times and must be returned to us upon first request. They may not be reproduced, copied, cached or made available to third parties for inspection or provided to them without our permission.
  3. The sending of offers and/or (other) documentation does not obligate us to accept an order. Non-acceptance will be communicated to the other party as soon as possible, but in any case within 14 days. The agreement will therefore only come into effect 14 days after acceptance or sooner if we confirm the agreement in writing or commence (a start of) execution.

3 DELIVERY

  1. We reserve the right to refuse orders or requests without giving reasons, or to deliver only cash on delivery or for cash.
  2. The delivery times specified by us are indicative and should not be considered as a strict deadline. The indication of the delivery time is always given by us approximately, unless expressly stated otherwise in writing.
  3. Delivery takes place, unless expressly agreed otherwise, from our company or warehouse.
  4. We reserve the right to deliver the goods cash on delivery or to require advance payment from the other party.

4 CANCELLATION

  1. If the other party wishes to cancel an agreement after it has been established, and if we agree to this cancellation, 15% of the order price (including VAT) will be charged as cancellation costs, without prejudice to our right to full compensation, including lost profits.

5 PRICES

  1. Unless otherwise stated, our prices are:

    1. for services based on hourly rates
    2. for goods based on delivery ex works or warehouse
    3. excluding VAT, import duties, other taxes, levies and charges.
    4. excluding the costs of packaging, loading and unloading, transport and insurance
    5. excluding installation and instruction costs
    6. in euros
    7. excluding telephone or telecommunications costs

  2. In the event of an increase in one or more of the cost price factors, we are entitled to increase the order price accordingly; all this in accordance with any applicable legal regulations, with the understanding that any known future price increases will be mentioned in the order confirmation.

6 FORCE MAJEURE

  1. “Force majeure” is understood to mean: any circumstance independent of the will of the parties or unforeseeable circumstances that reasonably prevent the other party from demanding performance of the agreement.
  2. In this context, force majeure in the contractual relationship with our counterparties is understood to mean any disruption or obstruction of third-party telecommunications facilities that prevents the normal transmission of telecommunications services for a shorter or longer period.
  3. If, in our opinion, the force majeure is of a temporary nature, we have the right to suspend the performance of the agreement until the circumstance causing the force majeure no longer occurs.
  4. If in our opinion the force majeure situation is of a permanent nature, the parties may reach an agreement regarding the termination of the contract and the associated consequences.
  5. We are entitled to demand payment for the services performed in the execution of the relevant contract before the force majeure causing circumstance has become apparent.
  6. The party that believes it is (about to be) in force majeure must immediately inform the other party.

7 INTELLECTUAL PROPERTY

  1. All prototypes, demos, drawings, designs, diagrams, specifications, sketches, models, and such, produced by or on behalf of us in the execution of the contract, remain our inalienable property, as does the right to use them.
  2. The other party guarantees us at all times that the use of the data provided by the other party or otherwise will not conflict with legal regulations or protected rights of third parties.
  3. The other party fully indemnifies us against all direct and indirect consequences of claims that third parties may assert against us due to a breach of the warranty mentioned in point 7.2.
  4. We retain the copyright at all times for the software developed by us, whether or not commissioned.

8 LIABILITY

  1. Except in cases of intent or gross negligence on our part, we are not liable for any damage, of any kind and extent, direct or indirect, including business damage, to movable or immovable property, or to persons, both for the other party and for third parties arising from the execution of the concluded contract.
  2. Under no circumstances are we liable for damage that has arisen or been caused by the use of the delivered goods or by their unsuitability for the purpose for which the other party has purchased them.
  3. Even if the other party or a third party makes changes to the software we have developed or the hardware supplied, we exclude all liability regarding the operation and any (consequential) damage.
  4. We can never be held responsible for the content of any file that is posted on the Internet by the other party or third parties. We also cannot be held responsible for the consequences that may arise from viewing or executing a file by the other party. We expressly reserve the right to remove offensive, discriminatory or objectionable texts from the Internet and, where appropriate, to report them to the relevant authorities. In the case of repeated violations, we reserve the right to disconnect the other party from the Internet.
  5. If, despite the exclusion of liability as referred to in 8.1, liability on our part is legally assumed, the extent of our liability shall never exceed the total amount of the agreement or partial delivery.
  6. We are never liable for pure financial loss such as loss of profit, loss of revenue, reputational damage, etc.
  7. We are never liable for damage caused by used media or applications such as photos, images, designs, templates, modules, scripts, and the like. The other party must inform themselves of the rights of the used media and applications.

9 COMPLAINTS

  1. 9.1 Any complaints will only be processed by us if they have been received directly in writing within 3 working days after delivery of the relevant performance, stating the nature and grounds of the complaints precisely.
  2. Complaints regarding invoices must also be submitted in writing within 5 working days after the invoice date. After this period has expired, the other party is deemed to have approved the delivered goods or the invoice. Thereafter, complaints will no longer be processed by us.
  3. If the complaint is found to be justified by us, we are only obliged to deliver the agreed performance.
  4. If the complaint is found to be justified by us, this suspends the payment obligation of the other party until the complaint has been resolved, provided that this only concerns that part of the invoice which is deemed to be justified.
  5. Return of the delivered goods can only take place after our prior written consent, under conditions to be determined by us.

10 RETENTION OF TITLE

  1. Delivered goods and software remain our property until all our deliveries and work performed under the agreement, including interest and costs, have been paid by the other party.
  2. In the event of suspension of payment, bankruptcy, suspension of payment, liquidation of the other party, or death if the other party is a natural person, we are entitled to terminate the agreement in whole or in part without notice of default or judicial intervention and to reclaim the unpaid part of the delivered goods.
  3. Dissolution and withdrawal do not affect our right to compensation for damage or loss. In these cases, any claim we have against the other party will be immediately and fully payable.

11 PAYMENT

  1. Access, hosting, colocating subscriptions and agreements for related internet services, including service contracts, are invoiced in advance, monthly.

  2. Courses, servers and other hardware are invoiced prior to commencement.

  3. Domain names are invoiced in advance, annually.

  4. Payment must be made within 21 days of the invoice date without any discount or appeal to suspension or set-off, by deposit or transfer to a bank or giro account designated by us. The value date indicated on our bank/giro statements is decisive and is therefore considered the payment date.

  5. All payments made by the other party primarily serve to satisfy any interest and collection costs incurred by us, and subsequently to settle the oldest outstanding invoices.

  6. In the event that the other party:

    1. is declared bankrupt, applies for a suspension of payments, or has a seizure placed on all or part of their assets,
    2. dies or is placed under guardianship,
    3. fails to comply with any obligation arising from the agreement and/or these terms,
    4. fails to pay an invoice amount or a part thereof within the stipulated period,
  7. we have the right, by merely invoking one of the aforementioned circumstances, either to terminate the agreement, or to suspend our services, or to demand any amount owed by the other party based on the services provided by us, immediately and without any warning or notice of default being required, all without prejudice to our right to compensation for costs, damages, and interest. If payment has not been made within the period mentioned in 11.4, the other party is automatically in default and from the due date is liable to pay statutory interest on the outstanding amount.
  8. All judicial and extrajudicial costs incurred shall be borne by the other party. The extrajudicial costs will be calculated in accordance with the report Voorwerk II or, if this report is no longer current, in accordance with the rates that are deemed reasonable by the Dutch Association for the Judiciary at that time.

12 TERMINATION/CANCELLATION

  1. Access, hosting, colocating subscriptions and agreements for related internet services, including service contracts, that are entered into for a fixed term can only be terminated at the end of the period for which they were entered into, by means of written notice with a minimum notice period of one month. In the absence of timely cancellation, these contracts are deemed to be tacitly extended for the same duration for which they were previously entered into, under the conditions applied by CloudInventor for similar contracts at the time of tacit extension.
  2. Access, hosting, and colocating subscriptions and agreements for related internet services, including service contracts, which are entered into for an indefinite period can only be terminated at the end of each calendar quarter, by means of written notice with a minimum notice period of one month.
  3. Agreements regarding the registration and operation of internet domain names can be terminated by written notice at the end of each year, with a notice period of one month. Insofar as the agreements for the registration and operation of internet domain names form part of a larger whole of contractual relationships between the counterparty and CloudInventor, termination of a registration contract or a request for transfer to another provider can be made at a time when the other agreements have been validly terminated.
  4. Notwithstanding what is stipulated in the previous articles, CloudInventor may terminate the agreements concluded with the counterparty at any time by written notice if the counterparty acts in violation of the agreements concluded with CloudInventor or the acceptable use policy and/or abuse policy employed by CloudInventor, or otherwise harms the interests of CloudInventor in such a way that the continuation of the relationship cannot reasonably be expected from CloudInventor.

13 APPLICABLE LAW AND DISPUTES

  1. All our offers, agreements, and their execution are exclusively governed by Dutch law.
  2. All disputes, including those which are only considered as such by one party, arising from or related to the agreement to which these terms apply or the relevant terms themselves and their interpretation or execution, both of a factual and legal nature, shall be decided by the competent court in Arnhem, unless the sub-district court has jurisdiction.

14 PROCESSING OF PERSONAL DATA

If CloudInventor processes personal data while executing the agreement, the following conditions apply:

  1. General

    1. The terms defined in this Annex in the General Data Protection Regulation (hereinafter: “GDPR”) have the meaning assigned to them in the GDPR.
    2. In the processing of Personal Data, the other party may be designated as the Data Controller, or if the Other Party processes the Personal Data for a third party as a Data Processor. CloudInventor acts (depending on the capacity in which the other party processes Personal Data) as Data Processor or Sub-Data Processor.

  2. Purposes of processing

    1. CloudInventor commits to processing Personal Data under the terms of the Agreement on behalf of the other party. Processing will only take place within the framework of the execution of the Agreement, plus those purposes that are reasonably related to it or that have been determined with further consent.
    2. CloudInventor will not process personal data for purposes other than those specified by the other party and for the execution of the Agreement. The other party will inform CloudInventor of the processing purposes to the extent that these have not yet been mentioned in these terms or the Acceptable Use Policy. The other party must report which categories of data subjects and personal data are involved based on the document: SPECIFICATION OF PERSONAL DATA AND DATA SUBJECTS. If the other party does not report this, the other party will not process or store special personal data and the other party will always be the Data Controller and CloudInventor will at all times be the Data Processor.
    3. CloudInventor has no control over the purpose and means of processing Personal Data. CloudInventor does not make decisions regarding the receipt and use of Personal Data, the provision to third parties, and the duration of the storage of Personal Data.

  3. Obligations of CloudInventor

    1. With regard to the processing activities mentioned in Article 2, CloudInventor will ensure compliance with the conditions established in the GDPR for the processing of Personal Data.
    2. CloudInventor will process Personal Data and other data provided to CloudInventor by or on behalf of the other party.
    3. CloudInventor will inform the other party, at the latter's request and within a reasonable timeframe, about the measures it has taken regarding its obligations under this Annex.
    4. The obligations of CloudInventor arising from this Annex also apply to those who process Personal Data under the authority of CloudInventor.
    5. CloudInventor will inform the other party if it believes that a request from the other party is in violation of relevant privacy laws and regulations.
    6. In the context of processing, CloudInventor will cooperate with the other party if a data protection impact assessment, or prior consultation with the supervisory authority, is necessary.

  4. Transfer of personal data

    1. CloudInventor may process personal data in countries within the European Union, subject to relevant laws and regulations.
    2. CloudInventor will inform the other party, upon request, about the relevant country or countries.

  5. Distribution of responsibilities

    1. The parties will ensure that they comply with applicable privacy laws and regulations.
    2. The permitted processing operations will be carried out by CloudInventor within a (semi) automated environment.
    3. CloudInventor is solely responsible for the processing of Personal Data under this Annex, in accordance with the instructions of the other party and under the explicit responsibility of the other party. CloudInventor is not responsible for any other processing of Personal Data, including but not limited to the collection of Personal Data by the Other Party, processing for purposes not reported to CloudInventor by the Other Party, processing by third parties and/or for other purposes. The responsibility for these processing operations lies solely with the other party.
    4. The other party guarantees that the content, use, and instructions for the processing of Personal Data, as stated in this Annex, are not unlawful and do not infringe the rights of third parties.

  6. Use of third parties or subcontractors

    1. The other party hereby grants CloudInventor permission to engage third parties (sub-processors) during the processing.
    2. At the request of the other party, CloudInventor will inform the other party as soon as possible about the sub-processors it has engaged. The other party has the right to object to the use of a sub-processor. This objection must be submitted in writing, within two weeks and substantiated with arguments.
    3. CloudInventor unconditionally ensures that these third parties enter into the same obligations in writing as agreed between the other party and CloudInventor. CloudInventor guarantees the correct compliance with these obligations by these third parties.

  7. Security

    1. CloudInventor will endeavour to take appropriate technical and organisational measures regarding the processing of Personal Data to protect against loss or against any form of unlawful processing (such as unauthorised inspection, breach, alteration, or provision of personal data).
    2. CloudInventor does not guarantee that the security is effective under all circumstances. CloudInventor will endeavour to ensure that the security meets a level that, considering the state of the art, the sensitivity of the Personal Data, and the costs associated with security, is not unreasonable.
    3. The other party will only provide Personal Data for processing to CloudInventor if the other party has ensured that the required security measures have been taken. The other party is responsible for compliance with the measures agreed upon by the Parties.

  8. Notification obligation

    1. In the event of a security breach and/or a data leak (which is understood as: a breach of security that unintentionally or unlawfully leads to the destruction, loss, alteration, or unauthorised disclosure of or unauthorised access to the transmitted data, stored or otherwise generated data), CloudInventor will do its best to inform the other party as soon as possible, after which the other party will assess whether to inform the supervisory authorities and/or affected individuals. CloudInventor aims to make the provided information as complete, correct, and accurate as possible.
    2. If legally and/or regulatory required, CloudInventor will cooperate in informing the relevant authorities and any stakeholders. The other party is responsible for reporting to the relevant authorities.

    3. The notification obligation includes at least reporting the fact that there has been a leak, as well as:

      1. What is the (alleged) cause of the leak;
      2. What is the (currently known and/or expected) consequence;
      3. What is the (proposed) solution;
      4. What measures have already been taken;
      5. Contact details for follow-up on the report;
      6. Who has been informed (such as the affected individual, the other party, the supervisor).

  9. Handling of requests from the affected individual.

    1. In the event that a data subject submits a request regarding their personal data to CloudInventor, CloudInventor will forward the request to the other party and inform the data subject accordingly. The other party will then continue to process the request independently. If it appears that the other party requires assistance from CloudInventor in fulfilling a request from a data subject, CloudInventor will cooperate and may charge costs for this.

  10. Audit

    1. The other party has the right to have audits conducted by an independent IT expert bound by confidentiality to verify compliance with all points in this Annex.
    2. Such an audit will only take place after the other party has requested, reviewed existing audit reports from CloudInventor, and presented reasonable arguments justifying an audit initiated by the other party. Such an audit is justified when the comparable audit reports at CloudInventor provide no or insufficient information regarding CloudInventor's compliance with this Annex. The audit initiated by the other party will take place two weeks after prior notice from the other party and no more than once a year.
    3. CloudInventor will cooperate with the audit and provide all relevant information that is reasonably relevant to the audit, including supporting data such as system logs, and will make staff available as promptly as possible and within a reasonable timeframe, with a maximum period of two weeks being reasonable, unless an urgent interest contradicts this.
    4. The findings resulting from the conducted audit will be assessed by the Parties in mutual consultation and, as a result, will be implemented by one of the Parties or jointly by both Parties.
    5. The reasonable costs for the audit are to be borne by the other party with the agreement that the costs for the hired ICT expert will always be the responsibility of the other party.

  11. Confidentiality and privacy

    1. All Personal Data that CloudInventor receives from the other party and/or collects itself within the framework of this Annex is subject to a confidentiality obligation towards third parties. CloudInventor will not use this information for any purposes other than the purpose for which it was obtained, unless it is formulated in such a way that it cannot be traced back to the individuals concerned.

    2. This confidentiality does not apply:

      1. Insofar as the other party has given explicit consent to provide the information to third parties; or
      2. If the provision of the information to third parties is logically necessary for the execution of the Main Agreement or this Annex; and
      3. If there is a legal obligation to provide the information to a third party.

  12. Duration and cancellation

    1. The Annex is valid for the duration as stipulated in the Agreement between the Parties and in the absence thereof for at least the duration of the collaboration.
    2. The Annex cannot be cancelled prematurely.
    3. The Parties can only amend this Annex with mutual consent.
    4. CloudInventor will immediately destroy the Personal Data received from the other party after the termination of the Annex, unless the Parties agree otherwise.