Article 1. DEFINITIONS
1.1 ‘Account’: name under which the customer gets access to ‘HENSEL HOSTING’ system.
1.2 ‘Account data’: data collected and stored by ‘HENSEL HOSTING’ for the latter to send the invoice to the customer, including, if necessary for invoicing, the terms regarding data traffic.
1.3 ‘E-mail address’: an address made under the customer’s name with a view to exchanging electronic messages via the Internet.
1.4 ‘Fair use’: correct system use by the customer.
1.5 ‘Homepage’: Internet page created under the customer’s name or a title or introduction page of a website on the Internet.
1.6 ‘Customer’: the party having concluded an agreement with ‘HENSEL HOSTING’.
1.7 ‘Netiquette/Internet etiquette’: the generally accepted rules of conduct on the Internet, as defined in RFC 1855 (ftp://ftp.ripe.net/rfc/rfc1855.txt), and any further adaptation thereof.
1.8 ‘Contract’: the contract between ‘HENSEL HOSTING’ and a customer, under which ‘HENSEL HOSTING’ provides services to the customer.
1.9 ‘Writing space: storage space ‘HENSEL HOSTING’ makes available to a customer, e.g. for sending and receiving e-mail messages, hosting a homepage or a website and ‘HENSEL HOSTING’ general services.
1.10 ‘System’: computer and auxiliary equipment, by means of which ‘HENSEL HOSTING’ provides services to the customer (via the Internet).
1.11 ‘Website’: one or several Internet pages, preceded by a homepage.
1.12 ‘Circulated data’: the general data the customer generates on ‘HENSEL HOSTING’ systems, by using the services provided by ‘HENSEL HOSTING’
1.13 ‘HENSEL HOSTING’: the ‘HENSEL HOSTING B.V.’ Company, based in Amsterdam, Overtoom 473 I, 1054 LE, the Netherlands.
1.14 ‘HENSEL HOSTING services’: the services or tasks performed by ‘HENSEL HOSTING’ for the customer’s benefit.
Article 2. GENERAL TERMS
2.1 These general terms apply to any offer and to any contract between ‘HENSEL HOSTING’ and a customer, except where the parties expressly vary these terms.
2.2 All offers made by ‘HENSEL HOSTING’ are not subject to obligations. A contract takes effect upon ‘HENSEL HOSTING’ receiving back the contract or proxy form, previously sent to an applying customer, fully filled out and signed, or, otherwise, if ‘HENSEL HOSTING’ provided services to the applying customer. After the customer’s acceptance, immediate cancellation by ‘HENSEL HOSTING’ is possible. By such cancellation, the contract shall no longer take effect and ‘HENSEL HOSTING’ is bound to return to the customer everything the former has received from the latter (regarding the offer). ‘HENSEL HOSTING’ may refuse to state its reasons wherefore to the customer.
2.3 ‘HENSEL HOSTING’ is entitled at any time to amend these general terms and the additional ones. Such amendments become operative one (1) month after communication thereof, as described under article 12.2. If the customer does not agree to such amendments, he or she is entitled, as per article 10.1, and by the effective date of the amendments, to waive the contract, as of when the amendments become operative. If the customer uses this right to cancel the contract, ‘HENSEL HOSTING’ is bound to make repayments, as specified under article 11.3. Exception: the customer is not entitled to waive the contract if the amendments made to the general or additional terms are related to the obligations imposed by the government or by the ICANN (Internet Corporation for Assigned Names and Numbers).
Article 3. ‘HENSEL HOSTING’’S OBLIGATIONS
3.1 ‘HENSEL HOSTING’ is bound, as service provider, to abide by the following rules:
o) to ensure operation of the system Internet connections;
o) to ensure the saved data security.
3.2 ‘HENSEL HOSTING’ cannot guarantee a trouble-free access to the system and cannot guarantee, either, the operation of the system Internet connections, nor the unlimited use, at any time, of ‘HENSEL HOSTING’ services.
3.3 ‘HENSEL HOSTING’ shall not look into the contents of personal e-mails and/or customer information and shall not disclose them to a third party, unless ‘HENSEL HOSTING’ is bound to take such action by the law or by a court ruling, in case the customer acts or is suspected to act contrary to the provisions of article 4.2 and/or 4.3 of these general terms. ‘HENSEL HOSTING’ largely described this policy in a special privacy statement. This is posted on the ‘HENSEL HOSTING’ website.
Article 4. CUSTOMER’S OBLIGATIONS
4.1 The customer shall introduce himself or herself and act according to the expectations as a responsible and careful Internet user and/or website administrator. The customer shall notify in writing ‘HENSEL HOSTING’, as soon as possible, of any relevant change in his or her data.
4.2 The customer shall not affect other customers or Internet users and shall not cause any damage to the system. The customer is forbidden to initiate programs or processes – even though not via the system – the customer knows or may suspect that will affect or damage the ‘HENSEL HOSTING’ company, other customers or Internet users. This also means any indirect damage caused by a flawed setup of the customer – for instance, without limitation, ‘open relaying’ via an incorrectly set-up mail server. The customer is allowed to initiate programs or processes if there is a direct connection to the system, permitted by ‘HENSEL HOSTING’.
4.3 The customer is forbidden to use the system and the writing space for actions and/or deeds contradictory to the relevant applicable legal regulations, the Internet etiquette, the directives of the Advertising Code Committee, the contract or these general terms. This regulation applies to, without limitation, the following actions or deeds:
o) spamming: non-requested forwarding of large amounts of e-mail with the same contents, and/or posting on the Internet, on a large number of forums, of a message with the same contents. This includes e-mails sent via any other provider, relating to a website, e-mail address or other ‘HENSEL HOSTING’ service;
o) violation of copyright regulations or other deeds contradictory to the (intellectual property) rights of a third party;
o) posting or spreading of pornography (involving minors);
o) sexual intimidation or any other attack against individuals;
o) hacking: entering against permission into other computers or computer systems on the Internet.
4.4 The customer is forbidden to transfer his or her e-mail account or other rights arising out of this contract to third parties, or to cause the same to be used, without the written consent of ‘HENSEL HOSTING’. Notwithstanding all of the above, the customer may allow the building, posting and maintenance of a website for him or her by a third party. The customer continues to be responsible for the use of his or her account and password.
4.5 The customer is in charge of the necessary hardware and software, of the setup, of the auxiliary equipment and of the connections ensuring system access.
4.6 The customer is limited to the writing space as described under the contract. The customer should see to such limit not being exceeded. If so happens, ‘HENSEL HOSTING’ is authorized, for a good performance of the ‘HENSEL HOSTING’ services, to delete information.
4.7 The customer is bound to limit himself or herself to a certain data traffic specific to the customer’s product. The customer should see to it that such amount not be exceeded. If so happens, ‘HENSEL HOSTING’ is authorized, for a good performance of the ‘HENSEL HOSTING’ services, to delete information and charge the payment wherefore to the customer.
4.8 The customer hereby authorizes ‘HENSEL HOSTING’ to record his or her personal data in the individuals’ register of ‘HENSEL HOSTING’, necessary for administration and management tasks. This individuals’ register contains data regarding the account and traffic and is accessible only by ‘HENSEL HOSTING’, without being disclosed to third parties, unless ‘HENSEL HOSTING’ is bound to do this by the law or by a court ruling. The customer hereby authorizes the recording of his or her personal data in the whois-database. ‘HENSEL HOSTING’ is bound to disclose such data upon registration of a domain name for the customer. The customer may choose to record the domain name under the name of ‘HENSEL HOSTING’. This option must be communicated upon placing the order. In such case, the provisions of article 7.2 are applicable. The privacy statement offers a specific description of data recording. This is posted on ‘HENSEL HOSTING’ website.
4.9 The customer can make an application for the communication or deletion of data in his or her account. He or she may send this application to ‘HENSEL HOSTING’, accompanied by the copy of an identity document, by mail or by fax. ‘HENSEL HOSTING’ shall reply to such applications by e-mail, free of charge, within 5 business days.
Article 5. LIABILITY
5.1 ‘HENSEL HOSTING’ is not deemed to be liable for the damage – in the strictest sense of the word – inflicted on the customer, unless such damage is caused by a willful action of ‘HENSEL HOSTING’. In particular, ‘HENSEL HOSTING’ is not liable for any damage connected with or arising out of: breaks in, or blocking of access to the ‘HENSEL HOSTING’ system or to the third party system, lack of security of the information saved by the customer in the ‘HENSEL HOSTING’ system, actions of other customers or Internet, account or e-mail address users.
5.2 The customer acting in contradiction with the obligations incumbent upon the latter under the contract or these general terms is deemed to be liable for any derived damage caused to the ‘HENSEL HOSTING’ Company.
5.3 The customer relieves ‘HENSEL HOSTING’ of any liability to third parties for damage inflicted or otherwise arising, by the customer using the account, system or the Internet, or by the customer’s failure to perform his or her obligations, under the contract or these general terms.
5.4 ‘HENSEL HOSTING’ is not liable for the contents of the customer’s website. Even though ‘HENSEL HOSTING’ built that website, to the customer’s order, the latter relieves ‘HENSEL HOSTING’ of any liability regarding the website: the customer always remains liable for the information posted on his or her website.
5.5 ‘HENSEL HOSTING’ is entitled, with no further notifications, to immediately suspend system access granted to the customer if and insofar as the customer acts in contradiction with the provisions of articles 4.1 – 4.4 included. Furthermore, ‘HENSEL HOSTING’ is entitled, in such case, if the gravity of such misdemeanor justifies it, to immediately cancel the contract, without entailing the right to payment of indemnities by ‘HENSEL HOSTING’ to the customer.
Article 6. ‘HENSEL HOSTING’ SERVICES
6.1 ‘HENSEL HOSTING’ awards, to ensure system access, the temporary – nonexclusive and nontransferable – right of using the system, throughout the contract.
6.2 For certain services, specific additional provision are valid, regarding service use. Such additional provisions shall be communicated separately for each service.
6.3 In case ‘HENSEL HOSTING’ builds, to the customer’s order, a website or a homepage, all intellectual property rights over that homepage or website belong to ‘HENSEL HOSTING’.
6.4 ‘HENSEL HOSTING’ is entitled to immediately cancel or limit the customer’s access to the system, if a customer exceeds, throughout a calendar month, the amount of data traffic or fair use set out under the contract, at the expense of the system(s). By these agreements/contracts, the customer is bound to pay to ‘HENSEL HOSTING’ the costs for such excess. Basically, ‘HENSEL HOSTING’ shall proceed to such cancellation or limitation, first following one (1) day after the customer is notified thereof by ‘HENSEL HOSTING’. In case of extremely high excesses, ‘HENSEL HOSTING’ may pass directly to performing such cancellation or limitation. ‘HENSEL HOSTING’ is not bound to pay indemnities for such cancellation or limitation. ‘HENSEL HOSTING’ management provides to the parties the undeniable evidence of such data traffic amount excess, subject to the customer’s producing evidence to the contrary.
Article 7. THIRD PARTY SERVICES
7.1 For many services, ‘HENSEL HOSTING’ relies on third party services or networks. ‘HENSEL HOSTING’ is not liable for any damage whatsoever, on any grounds, caused by third party services or networks, including here problems of third party networks or infrastructure.
7.2 ‘HENSEL HOSTING’ takes care, to the customer’s order, of domain registration. The choice of the domain name is made at the customer’s expense and risk, and ‘HENSEL HOSTING’ takes no responsibility for the choice and use of the domain name.
Article 8. COMPLAINTS
8.1 ‘HENSEL HOSTING’ handles complaints insofar as such complaints concern ‘HENSEL HOSTING’ services and/or actions and deeds of the customers.
8.2 ‘HENSEL HOSTING’ makes all efforts to settle the best it can the complaints regarding ‘HENSEL HOSTING’ services, to improve ‘HENSEL HOSTING’ services. The customer may lodge a complete and clear complaint, within 3 business days, with the Customer Service Department, preferably by e-mail. The complaint shall be analyzed for settlement purposes, to the extent possible, within 5 business days as of receipt thereof. The customer shall be informed thereon, to the extent possible, within 5 business days as of receipt of the claim.
8.3 ‘HENSEL HOSTING’ makess all efforts to settle the best it can complaints regarding actions and deeds of ‘HENSEL HOSTING’ customers. The customer may send by e-mail, to the address email@example.com, within 5 business days, complaints regarding abuse, spam or illegal actions of ‘HENSEL HOSTING’ customers, provided that they are accompanied by relevant data regarding such abuse, including times and/or headers, and a clear description of the reasons for such complaint.
8.4 Lodging a complaint does not affect the general obligations of the customer.
Article 9. SYSTEM MANAGEMENT
9.1 ‘HENSEL HOSTING’ is entitled to (temporarily) suspend or limit system use, with no prior notice, as long as this is needed for the necessary and well-grounded maintenance thereof or for ‘HENSEL HOSTING’ entering modifications or improvements required for the system, without ‘HENSEL HOSTING’ being thus bound to pay indemnities to its customers.
9.2 ‘HENSEL HOSTING’ is entitled at any time to make changes of the account, without ‘HENSEL HOSTING’ being thus bound to pay indemnities to its customers. In such case, ‘HENSEL HOSTING’ shall notify as soon as possible the customer of such changes.
Article 10. CONTRACT TERM AND CESSATION
10.1 The contract is executed for one (1) year. Upon expiry thereof, the contract is automatically extended by a similar period of time. Contract cancellation by the customer must take place subject to a prior notice of one (1) month before the expiry date of the agreed term. Cancellation by customer is possible both in writing and by fax, provided that the prior notice is deemed to have been given the day when ‘HENSEL HOSTING’ received the cancellation request. ‘HENSEL HOSTING’ is authorized at any time to transfer its customers to another company, if ‘HENSEL HOSTING’ decides to terminate its business.
Article 11. TERMINATION
11.1 Should the customer fail to perform – in terms of contents or temporarily – the obligations arising out of the contract concluded with ‘HENSEL HOSTING’ or of these general terms, without the least doubt regarding the customer’s capacity to perform his or her contractual obligations to ‘HENSEL HOSTING’, ‘HENSEL HOSTING’ is entitled, without any legal obligation or court intervention, either to cut short the duration of the ‘HENSEL HOSTING’ service(s) agreed, or to terminate, in full or in part, the contract, without giving rise to ‘HENSEL HOSTING’’s obligation to pay indemnities and notwithstanding the other rights of ‘HENSEL HOSTING’ .
11.2 ‘HENSEL HOSTING’ is authorized, without any legal obligation or court intervention, to terminate the contract, with immediate effect, or to suspend the ‘HENSEL HOSTING’ services, in case the customer:
o) communicated to ‘HENSEL HOSTING’ false and/or inaccurate personal data;
o) failed/omitted to communicate accurate data or changes thereof;
o) concluded the contract under false pretenses;
o) acts in contradiction with articles 4.1 – 4.4 included;
o) is declared bankrupt or filed a petition for bankruptcy;
o) requested a payment moratorium;
o) is placed under government trusteeship or dissolved;
o) has a payment delay of at least 2 months.
11.3 If the contract is terminated, otherwise than by cancellation by the customer, prior to the expiry of the contractual term, and the customer observed by that time the general and additional terms as set out by ‘HENSEL HOSTING’, in particular the provisions of articles 4.1 – 4.4 included of these general terms, then ‘HENSEL HOSTING’ is bound to refund the price of the contract, throughout the remaining period of the contract (rounded-off current month), withholding the costs borne by ‘HENSEL HOSTING’ on behalf of the customer, valid throughout the contract, including, without limitation, the costs of domain registration.
12.1 The customer is bound to pay a fee for the service(s) supplied by ‘HENSEL HOSTING’. All fees are exclusive of VAT, management costs and possible taxes and/or rights, except otherwise stipulated.
12.2 ‘HENSEL HOSTING’ is entitled at any time to vary the fee and general costs. Price variations must be notified at least one (1) month prior to their taking effect, on ‘HENSEL HOSTING’ website. If such variations imply, on an annual basis, an increase in the fee and/or general costs for the customer, the customer that does not agree to such price variations, is authorized, contrary to article 10.1, to cancel the contract, as of the effective date of price variations, subject to notification thereof by the effective date of price variations.
Article 13. PAYMENT
13.1 The fees owed to ‘HENSEL HOSTING’ must be paid in advance, except otherwise agreed in writing. The customer is bound to pay the fee within fourteen (14) days as of the invoicing date.
13.2 If the customer fails to pay within the term set out under article 131, he or she shall be guilty of negligence and is consequently bound, without any further binding measure, to pay a fine, apart from the invoiced amount. At the same time, all payable legal costs are at the expense and risk of the customer. Such costs amount to 15% above the necessary amount and to minimum EURO 10, except when ‘HENSEL HOSTING’ proves that the actual costs incurred are higher.
Article 14. FORCE MAJEURE
14.1 Force majeure refers to all external, unforeseeable causes, due to which ‘HENSEL HOSTING’ is not capable of performing its obligations to the customer. These include, without limitation, Internet connection problems, telecommunications infrastructure problems, networking problems.
14.2 ‘HENSEL HOSTING’ is entitled to claim force majeure if the circumstances which (further) prevent performance of its obligations occur after ‘HENSEL HOSTING’ should have performed its obligations.
14.3 During the force majeure event, performance of services and other obligations of ‘HENSEL HOSTING’ is suspended. If the period throughout which, due to force majeure, performance of obligations by ‘HENSEL HOSTING’ is impossible lasts for more than two (2) weeks, either of the parties is authorized to terminate the contract, without legal intermediation and without causing the other party to be liable to pay indemnities.
Article 15. DISPUTES AND GOVERNING LAW
15.1 In the event of any dispute between ‘HENSEL HOSTING’ and the customer, the governing law is the Dutch law. The legal authority in Amsterdam is authorized, by exception, to acknowledge the various disputes arising out of or connected with the contracts between ‘HENSEL HOSTING’ and the customer.
15.2 If the customer, that does not act as a representative of a company, or exercising his or her profession, does not agree to the choice set forth under article 15.1, the latter is authorized, within one (1) month after ‘HENSEL HOSTING’ claimed article 15.1, to choose that the dispute be settled by the legally authorized body.
15.3 Should one or several provisions of these general terms be void or likely to be declared void, the validity of the general terms is not affected thereby. In case of nullity of one or several provisions of these general terms, the parties are governed by the rules with agreed validity, which are not subject to nullity.
These general terms have been lodged with the Chamber of Commerce and Industry in Amsterdam, under number 3415.4085