Vservs Terms of Service

These Terms of Service apply to every offer or quotation from Vservs regarding Services and form an integral part of every Agreement between Vservs and the Client. Any provisions or conditions set by the Client that deviate from, or are not included in, these Terms of Service shall only be binding on Vservs if and to the extent that they have been expressly accepted in Writing by Vservs.

Capitalized terms shall have the meaning as defined in the final article.

Article 1. Formation of the Contract

1.1. The Client may request the Services directly via the Vservs Website. The Agreement is formed at the moment Vservs sends (whether automatically generated or not) an email containing confirmation and acceptance of the request. The Client may also request a non-binding quotation. The Agreement is formed at the moment Vservs receives acceptance of the quotation, provided this occurs before the expiration date stated in the quotation.

1.2. If the Client is a consumer, the Client has the right to withdraw from the Agreement in Writing, free of charge, within fourteen days from the date the order was placed.

Article 1. Formation of the Contract

1.2. If the Client is a consumer, the Client has the right to withdraw from the Agreement in Writing, free of charge, within fourteen days from the date the order was placed.

Article 2. Performance of the Agreement

2.1. After the Agreement has been concluded, Vservs shall perform it to the best of its ability, applying due care and professional skill.

2.2. Vservs shall make reasonable efforts to ensure high-quality and uninterrupted availability of the Services and the associated systems and networks, as well as access to the data stored by the Client. However, Vservs does not provide guarantees regarding quality or availability, unless otherwise agreed in the quotation through a Service Level Agreement (SLA) expressly designated as such.

2.3. Delivery terms specified by Vservs are always indicative, except where the applicable SLA stipulates deadlines that can only be interpreted as binding obligations of result.

2.4. If and insofar as proper performance of the Agreement requires, Vservs has the right to have certain activities carried out by third parties. Any unexpected additional costs arising therefrom shall be borne by the Client, unless otherwise agreed. These Terms of Service also apply to work performed by third parties in the context of the Agreement.

2.5. If so agreed, Vservs shall provide the Client with access to an Account. The Account shall be accessible by entering a username and password. Any action carried out through the Client’s Account or an Account created by the Client shall be deemed to have been performed under the responsibility and at the risk of the Client. If the Client suspects, or reasonably should suspect or know, that misuse of an Account is taking place, the Client must notify Vservs as soon as possible so that appropriate measures can be taken.

2.6. Vservs shall remain available for a reasonable level of remote customer support by telephone and email during regular office hours, unless otherwise specified in the applicable SLA.

2.7. All changes to the Agreement, whether at the request of the Client or as a result of circumstances requiring different execution, shall be considered additional work where they result in extra costs, and reduced work where they result in fewer costs. Such changes shall be invoiced accordingly to the Client.

Article 3. Obligations of the Client

3.1. The Client shall do and refrain from doing all that may reasonably be necessary and desirable to enable timely and proper performance of the Agreement. In particular, the Client shall ensure that all information indicated by Vservs as necessary, or which the Client should reasonably understand to be necessary for the performance of the Services, is provided to Vservs in a timely manner. The period within which Vservs must perform the Agreement shall not commence until all requested and required data have been received by Vservs.

3.2. If the Client knows or can reasonably foresee that Vservs will need to take certain (additional) measures to meet its obligations, the Client shall promptly inform Vservs. This obligation applies, for example, if the Client knows or should anticipate that there will be an extraordinary peak load on Vservs’ systems which could likely cause unavailability of the Services. This applies all the more if the Client knows that Services are also being provided to others via the same systems that Vservs uses to provide Services to the Client. After such warning, Vservs will do everything reasonably possible to prevent unavailability of the Services. Unless expressly agreed otherwise in Writing, all reasonable additional costs incurred in this context may be charged to the Client.

3.3. The Client may not use the Services for High-Risk Applications under any circumstances.

3.4. If, for the specific use the Client makes or intends to make of the Services, any permit or other authorization from governmental bodies or third parties is required, the Client shall be responsible for obtaining such permit or authorization. The Client warrants to Vservs that it possesses all permits and/or authorizations necessary for the Client’s use of the Services.

Article 4. Conduct Rules and Notice/Takedown

4.1. The Client is prohibited from using the Services to violate Dutch law or other applicable laws or regulations relevant to the Client or Vservs, or to infringe upon the rights of others.

4.2. It is prohibited (whether legal or not) to offer or distribute, using the Services, Materials that:

are unmistakably primarily intended to assist others in infringing the rights of third parties, such as websites containing (exclusively or primarily) hacking tools or explanations of computer crime clearly intended to enable the reader to commit the described criminal acts, rather than to defend against them;
are unmistakably defamatory, libelous, offensive, racist, discriminatory, or incite hatred;
contain child pornography or bestiality pornography, or are clearly intended to assist others in finding such materials;
constitute a violation of the privacy of third parties, including but not limited to distributing personal data of third parties without consent or necessity, or repeatedly harassing third parties with unwanted communications;
contain hyperlinks, torrents, or references to (locations of) material that unmistakably infringes copyrights, neighboring rights, or portrait rights;
contain unsolicited commercial, charitable, or ideological communications;
contain malicious content such as viruses or spyware.

4.3. The distribution of pornographic Materials via the Services is permitted only insofar as this is expressly indicated as permitted in the offer.

4.4. The Client shall refrain from hindering other customers or internet users, or from causing damage to systems or networks of Vservs or other customers. The Client is prohibited from initiating processes or programs, whether or not via Vservs’ systems, that the Client knows or can reasonably suspect will hinder or cause damage to Vservs, its customers, or internet users.

4.5. If, in Vservs’ opinion, there arises any hindrance, damage, or other danger to the functioning of Vservs’ or third-party computer systems or networks and/or the services provided via the internet—particularly due to excessive sending of email or other data, denial-of-service attacks, poorly secured systems, or activities by viruses, Trojans, and similar software—Vservs is entitled to take all measures it reasonably deems necessary to avert or prevent such danger. Vservs may charge the Client for the costs reasonably necessary to implement these measures.

4.6. When Vservs receives a complaint regarding a violation of this article by the Client, or itself determines that such a violation appears to be occurring, Vservs will notify the Client as soon as possible of the complaint or violation. The Client shall respond as soon as possible, after which Vservs will decide how to proceed.

4.7. If Vservs determines that a violation exists, it will block access to the relevant Material, without permanently deleting such Material (unless this proves technically impossible, in which case Vservs will create a backup). Vservs will endeavor to avoid affecting other Materials. Vservs will notify the Client of the measures taken as soon as possible.

4.8. Vservs is at all times entitled to file a criminal complaint regarding observed criminal acts. Furthermore, Vservs is entitled to provide the name, address, and other identifying data of the Client to a third party who complains that the Client is infringing its rights or these Terms of Service, provided the accuracy of such complaint is reasonably sufficiently plausible and the third party has a clear interest in obtaining such data.

4.9. Although Vservs strives to act as reasonably, carefully, and adequately as possible following complaints about the Client, Vservs shall never be obliged to compensate damages resulting from measures as referred to in this article.

4.10. The Client is permitted to resell the Services, but only in combination with or as part of the Client’s own products or services and without disclosing Vservs’ name as supplier or subcontractor. The Client shall indemnify Vservs against all claims by the Client’s customers. Vservs may act directly and without limitation against violations of these Terms of Service by such downstream customers.

Article 5. Domain Name Applications

5.1. The application for, allocation, and any use of a domain name are subject to the applicable rules and procedures of the relevant registering authorities, such as the Stichting Internet Domeinregistratie Nederland for .nl domain names. The relevant authority decides on the allocation of a domain name. In the application process, Vservs acts solely as an intermediary and does not guarantee that an application will be honored.

5.2. The Client may only infer registration from Vservs’ confirmation stating that the requested domain name has been registered. An invoice for registration fees is not a confirmation of registration.

5.3. The Client shall indemnify and hold Vservs harmless from all damage related to (the use of) a domain name on behalf of or by the Client. Vservs is not liable for the Client’s loss of its rights to a domain name or for a domain name being applied for and/or obtained by a third party in the interim, except in cases of intent or willful recklessness by the Client.

5.4. The Client shall comply with the rules established by registering authorities for the application, allocation, or use of a domain name. Vservs will refer to these rules during the registration process.

5.5. Vservs has the right to render the domain name inaccessible or unusable, or to have it placed in its own name, when the Client is demonstrably in default of performing the Agreement, but only for the duration of such default and only after a reasonable cure period set in a written notice of default has lapsed.

5.6. In the event of termination of the Agreement due to the Client’s breach, Vservs is entitled to cancel the Client’s domain name subject to a two-month notice period.

Article 6. Storage and Data Limits

6.0. Vservs may set a maximum for the amount of storage space or monthly data traffic that the Client may or can actually use in connection with the Services.

6.1. If the Client exceeds the applicable limits, Vservs may, after sending at least one warning to the Client regarding the exceedance, charge an additional amount per data unit (e.g., MB or GB) equal to the exceedance, in accordance with the applicable amounts in the price list.

6.2. Vservs accepts no liability for the consequences of being unable to send, receive, store, or modify data if an agreed storage or data traffic limit has been exceeded.

6.3. When an excessive amount of data traffic is caused by an external factor (such as a denial-of-service attack), Vservs is entitled to charge the costs to the Client on a reasonable basis.

Article 7. Intellectual Property Rights

7.1. All intellectual property rights to all Materials developed or made available by Vservs in the context of the Agreement are vested exclusively in Vservs or its licensors.

7.2. The Client shall acquire only those usage rights and authorities that are explicitly granted in these Terms of Service, the Agreement, or otherwise expressly in Writing, and the Client shall not reproduce or disclose these Materials otherwise. The foregoing is subject to exception only where an unmistakable error has been made in failing to expressly grant such a right to the Client. Delivery of source code of Materials shall only be obligatory if explicitly agreed.

7.3. Unless otherwise agreed in Writing, the Client is not permitted to remove or alter any indication concerning copyrights, trademarks, trade names, or other intellectual property rights from these Materials, including indications concerning the confidential nature and secrecy of the Materials.

7.4. Vservs is entitled to take technical measures to protect its Materials. If Vservs has secured these Materials by means of technical protection, the Client is not permitted to remove or circumvent such protection, except where mandatory law dictates otherwise.

Article 8. Prices

8.1. Unless expressly stated otherwise with an amount, and unless the Client is a consumer, all prices quoted by Vservs are exclusive of value-added tax and other government-imposed levies.

8.2. If a price is based on data provided by the Client and such data proves to be incorrect, Vservs has the right to adjust the prices accordingly, even after the Agreement has been concluded.

8.3. If the Agreement is a Subscription, Vservs is entitled to change the applicable rates at any time.

8.4. The same conditions and procedures that apply to changes to the Services and to these Terms of Service shall apply to price changes.

Article 9. Payment Terms

9.1. Vservs will invoice the amounts owed by the Client. Vservs may issue electronic invoices. Vservs has the right to charge periodically due amounts in advance of delivering the Services.

9.2. The payment term of an invoice is the term indicated on the invoice, unless otherwise agreed in Writing.

9.3. If the Client has not paid in full within 14 days after the payment term, the Client shall be in default automatically, without any notice of default being required.

9.4. If the Client is in default, the following consequences shall apply: (i) statutory interest is due on the outstanding amount; (ii) the Client owes 15% of the principal sum as collection costs, or 40 euros if that amount exceeds 15% of the principal sum; (iii) websites and other Materials hosted for the Client may be made inaccessible until the outstanding amounts, interest, and related charges are paid.

9.5. Unless the Client is a consumer, the Client may not rely on suspension, set-off, or deduction.

9.6. If the Client fails to comply with any obligation under the Agreement, Vservs shall be entitled, without any notice of default, to suspend Services and to retake delivered goods, without prejudice to Vservs’ right to compensation for damages, lost profits, and interest.

Article 10. Liability

10.1. Vservs shall not be liable in connection with the formation or performance of the Agreement, except in the cases mentioned below and only up to the limits specified therein. However, in cases where the compensation scheme in the SLA—constituting a penalty clause—applies, payment thereunder shall replace compensation for actual damages arising from breach of the SLA standards.

10.2. The total liability of Vservs for damage suffered by the Client as a result of an attributable failure by Vservs to perform its obligations under the Agreement—including any failure to comply with a warranty obligation agreed with the Client—or as a result of tort by Vservs, its employees, or third parties engaged by it, is per event or series of related events limited to an amount equal to the total fees (excluding VAT) that the Client will owe under the Agreement, or, if the Agreement has a term of more than six (6) months, an amount equal to the fees paid by the Client in the last six (6) months. In no event shall the total compensation for direct damages exceed ten thousand (10,000) euros (excluding VAT).

10.3. Vservs shall expressly not be liable for indirect damages, consequential damages, lost profits, missed savings, and damages due to business interruption.

10.4. Vservs’ liability for attributable failure to perform the Agreement shall arise only if the Client promptly and properly puts Vservs in default in Writing, granting a reasonable period to remedy the failure, and Vservs continues to fail to perform its obligations after that period. The notice of default must contain as detailed a description of the failure as possible to enable Vservs to respond adequately. The notice of default must be received by Vservs within 30 days after discovery of the damage.

10.5. The exclusions and limitations referred to in this article shall not apply if and insofar as the damage is the result of intent or willful recklessness by Vservs’ executive management.

10.6. The Client is liable to Vservs for damage arising from a fault or failure attributable to the Client. The Client shall indemnify Vservs against claims relating to non-compliance with the conduct rules in Article 4 when using the Services by or with the Client’s permission. This indemnity also applies to persons who, although not employees of the Client, have used the Services under the Client’s responsibility or with the Client’s permission.

Article 11. Force Majeure

11.1. Neither party shall be obliged to perform any obligation if an event beyond the control of the parties, which could not or should not have been foreseen at the time of entering into the Agreement, nullifies any reasonable possibility of performance.

11.2. Force majeure shall include (but not be limited to): failures of public infrastructure normally available to Vservs and on which the delivery of the Services depends, but over which Vservs has no actual power or contractual obligation to ensure performance (such as the operation of the registers of IANA, RIPE, or SIDN, and all networks on the internet with which Vservs has no contract); failures in Vservs’ infrastructure and/or Services caused by computer crime (e.g., (D)DOS attacks or attempts—successful or not—to bypass network or system security); failures of Vservs’ suppliers that Vservs could not foresee and for which Vservs cannot hold its supplier liable (for example because the supplier was likewise affected by force majeure); defects in items, equipment, software, or other source materials the use of which has been prescribed by the Client; government measures; general transport problems; strikes; wars; terrorist attacks; and civil unrest.

11.3. If a force majeure situation lasts longer than three months, either party shall have the right to terminate the Agreement in Writing. In that case, what has already been performed under the Agreement shall be settled proportionally, and parties shall not otherwise owe anything to each other.

Article 12. Confidentiality

12.1. The parties shall treat as confidential any information they provide to each other before, during, or after performance of the Agreement if such information is marked as confidential or if the receiving party knows or should reasonably suspect that the information was intended to be confidential. The parties shall impose this obligation on their employees and on third parties engaged by them for the performance of the Agreement.

12.2. Vservs shall not access data stored and/or distributed by the Client via Vservs’ systems, unless this is necessary for proper performance of the Agreement or Vservs is obliged to do so pursuant to a statutory provision or court order. In such cases, Vservs shall endeavor to limit access to the data as much as possible, insofar as such limitation lies within its power.

12.3. The obligation of confidentiality shall continue after termination of the Agreement for any reason, for as long as the disclosing party may reasonably claim the confidential nature of the information.

Article 13. Term and Termination

13.1. The term of the Agreement is the period required to deliver the Services. If the Agreement is a Subscription, it is entered into for the period paid in advance.

13.2. If a fixed term has been agreed for the Subscription, neither party may unilaterally terminate the Agreement before the end of the term, except where a special ground for termination applies as described below. Either party may terminate an Agreement entered into for an indefinite period subject to a notice period of 14 days.

13.3. A Subscription is not tacitly renewed, and the Client is solely responsible for submitting a timely request for renewal.

13.4. Vservs may immediately suspend or terminate the Agreement in Writing if at least one of the following special grounds applies: (a) the Client is in default with respect to a material obligation; (b) the Client’s bankruptcy has been filed; (c) the Client has applied for a moratorium of payments; (d) the Client’s activities are discontinued or liquidated.

13.5. If Vservs suspends performance of its obligations, it shall retain its claims under law and the Agreement, including the claim to payment for the Services that are suspended.

13.6. If the Agreement is terminated or dissolved, Vservs’ claims against the Client shall become immediately due and payable. In the event of dissolution of the Agreement, amounts already invoiced for work performed shall remain payable without any obligation to undo performance. In the event of dissolution by the Client, the Client may dissolve only that part of the Agreement that has not yet been performed by Vservs. If the dissolution is attributable to the Client, Vservs shall be entitled to compensation for damages directly and indirectly arising therefrom.

13.7. The right to suspend in the above cases applies to all Agreements concluded with the Client simultaneously, even if the Client is in default with respect to only one Agreement, and without prejudice to Vservs’ right to compensation for damages, lost profits, and interest.

Article 14. Procedure After Termination

14.1. After termination of the Agreement, whether by cancellation or dissolution, Vservs may immediately close the Client’s Account and shall erase data stored for the Client as soon as possible. In such case, Vservs is not obliged to provide the Client with a copy of such data.

14.2. Deletion of data stored for the Client shall always be performed using a software “data shredder” to make deletion irreversible. (“Irreversible” refers to the deletion process and does not imply that the data would no longer exist anywhere else in the world.)

Article 15. Order of Precedence and Amendments

15.1. Vservs reserves the right to amend or supplement the Services and these Terms of Service. Amendments shall also apply to Agreements already concluded, subject to a period of 30 days after publication of the amendment.

15.2. Amendments shall be announced via an electronic ticketing system, on the Vservs Website, by email to the Client, or via another channel for which Vservs can prove the announcement reached the Client. Non-material amendments of subordinate importance may be implemented at any time and require no notification.

15.3. If the Client does not wish to accept an amendment, the Client must notify Vservs in Writing, with reasons, within two weeks after publication. Vservs may then reconsider the amendment. If Vservs does not withdraw the amendment, the Client may terminate the Agreement as of the date on which the new terms take effect, by giving notice effective on that date.

15.4. Provisions relating to specific Services shall, where applicable, take precedence over general provisions that relate to all Services. Additional agreements between Vservs and the Client shall prevail over these Terms of Service only if they are in Writing and expressly state such precedence, or if it is unmistakably the mutual intention of both parties.

Article 16. Miscellaneous Provisions

16.1. Dutch law shall apply to the Agreement.

16.2. Unless mandatory law provides otherwise, all disputes arising from or related to the Agreement shall be submitted to the competent Dutch court for the district in which Vservs is established.

16.3. If any provision of the Agreement is found to be null and void, this shall not affect the validity of the entire Agreement. In such case, the parties shall establish a new provision to replace the void provision, approximating the intention of the original Agreement and these Terms of Service as closely as legally possible.

16.4. Information and communications, including price indications, on the Vservs Website are subject to programming and typographical errors. In the event of any inconsistency between the Website and the Agreement, the Agreement shall prevail.

16.5. The log files and other—electronic or otherwise—administration of Vservs constitute full proof of Vservs’ assertions, and the version of any (electronic) communication received or stored by Vservs shall be deemed authentic, subject to proof to the contrary by the Client.

16.6. The parties shall promptly notify each other in Writing of any changes in name, postal address, email address, telephone number, and, upon request, bank or giro account number.

16.7. Each party may transfer its rights and obligations under the Agreement to a third party only with the prior Written consent of the other party. Such consent is not required in the event of a business acquisition or acquisition of a majority of the shares of the party concerned.

Article 17. Definitions

Vservs: the company Vservs B.V., established in Uithoorn and registered with the Dutch Chamber of Commerce under file number 56993803.

Vservs Website: the website of Vservs, accessible via the domain https://vservs.nl.

Subscription: the Agreement under which one or more of the parties undertakes to perform continuously or repeatedly over a certain period (e.g., a 12-month hosting contract).

Account: the access right to a user interface by which the Client can manage and configure (certain aspects of) the Services, as well as the configuration(s) and the files stored for the Client.

Terms of Service: the provisions of this document.

Client: the natural or legal person with whom Vservs has concluded an Agreement. Also included is any party negotiating with Vservs regarding such Agreement, as well as its representative(s), authorized agent(s), successors, and heirs.

Services: the products and/or services that Vservs shall deliver to the Client under an Agreement.

Materials: all works, such as websites and (web) applications, software, corporate identities, logos, folders, brochures, leaflets, signage, advertisements, marketing and/or communication plans, concepts, images, texts, sketches, documentation, advice, reports and other products of the mind, as well as preparatory materials thereof and (whether or not encoded) files or data carriers on which the Materials are located.

Agreement: any agreement between Vservs and the Client under which Vservs provides Services to the Client.

Writing/Written: in addition to paper documents, also email and fax communications, provided the identity of the sender and the integrity of the message are sufficiently established.

High-Risk Applications: applications in which an error in the Services may lead to death or serious injury, serious environmental damage, or loss of (personal) data with very high consequential damage. Examples include transportation systems where an error could cause trains to derail or aircraft to crash; medical systems where an error could prevent a patient from receiving correct treatment; systems on which a substantial part of the population depends for the allocation of crucial government services (such as DigiD); systems containing (large amounts of) medical data or other special data within the meaning of applicable data-protection law, or otherwise highly sensitive data.