A colocation agreement consists of the following provisions and documents that form an integral part of the agreement:
Please note that the English version of the terms & conditions is binding. The English terms & conditions are a free translation of the Dutch ‘Algemene Voorwaarden’
1.1 In these General Terms and Conditions, the following definitions are used, both in the singular and in the plural form.
2. Scope of the General Terms and Conditions
2.1 The General Terms and Conditions apply to and form part of all offers, quotations, Agreements and other legal acts, regardless of whether these are performed orally, In Writing or in any other form, with regard to Smartdc’s delivery of Products and/or provision of Services to or for the benefit of the Customer.
2.2 The General Terms and Conditions also apply to Products and/or Services that Smartdc obtains from a third party, whether in full or in part, and resells to the Customer, whether in processed form or in unprocessed form, as well as to Products and/or Services that a third party delivers/supplies to the Customer in implementation of the offer, quotation, Agreement or other legal act on the instruction of Smartdc.
2.3 Any derogations from these General Terms and Conditions are only legally valid if Smartdc and the Customer have expressly agreed on these In Writing.
2.4 Smartdc expressly rejects the applicability of any general purchase conditions or other conditions of the Customer.
2.5 Insofar as any provision of these General Terms and Conditions is voided or declared invalid, the other provisions of these General Terms and Conditions will remain fully in effect. In such case, Smartdc and the Customer will consult on a new provision to replace the voided or invalid provision, taking the intent of the voided or invalid stipulation into account as much as possible.
3. Amendment of terms and conditions
3.1 Smartdc reserves the right to amend or supplement the Services and these General Terms and Conditions. Amendments also apply to Agreements that have already been entered into, subject to a notice period of 30 days following the announcement of the amendment.
3.2 Amendments will be announced on the Smartdc Website, by means of an email to the Customer or via another channel that allows Smartdc to reasonably prove that the Customer received the notice. Non-substantive minor amendments can be implemented at all times, without requiring notification.
3.3 In this context, it is expressly noted that amendments to the Services and these General Terms and Conditions in connection with applicable laws and regulations and all measures Smartdc reasonably considers necessary in this regard do not form a basis for early termination
3.4 If the Customer does not wish to accept an amendment, it must inform Smartdc thereof, In Writing, within two weeks of being informed thereof, stating reasons. This may give Smartdc cause to review the amendment. If Smartdc does not subsequently revoke the amendment, the Customer may terminate the Agreement, effective from the date on which the new terms and conditions take effect.
4. Offer, quotation and Agreement
4.1 All offers made by Smartdc are free of obligation, unless expressly indicated otherwise In Writing.
4.2 The quotations provided by Smartdc are valid for the time period stated therein. If no time period is stated, the quotation is valid for sixty (60) days after the date on which it was sent.
4.3 Agreements are formed when Smartdc accepts the Customer’s Written assignment, or when Smartdc proceeds with carrying out an assignment.
4.4 If the Customer is a consumer, the Customer will have fourteen (14) days from the time the order is placed to terminate the Agreement In Writing and free of charge, unless the Customer expressly waives that right. Smartdc may reasonably charge the costs incurred during this term.
4.5 Unless expressly otherwise agreed In Writing, Agreements are entered into for a term of sixty (60) months. Interim termination is excluded.
4.6 At the end of the agreed period, Agreements are tacitly renewed for successive periods of twelve (12) months, unless otherwise agreed. For Services ordered via the automatic ordering process, the agreed period is tacitly renewed for successive periods of the same term, unless a timely cancellation of the Agreement is received (Article 21.5).
4.7 The Customer is not allowed to transfer the Agreement to a different entity without Written permission.
5. Risk and retention of title of Products
5.1 The risk of loss of or damage to Products that are the subject of the Agreement between Smartdc and the Customer transfers to the Customer when the relevant Products come under the actual control of the Customer or an auxiliary person.
5.2 All items delivered to the Customer continue to be the property of Smartdc until the Customer has paid all the amounts it owes Smartdc in connection with Products delivered by Smartdc, as well as the interest and costs owed in respect thereof as referred to in Articles 11.5 and 11.6, in full. Insofar as it has been expressly agreed In Writing that certain rights will be granted or transferred, these will always be granted or transferred under the condition that the associated fee is paid in full and on time.
5.3 Smartdc is authorized to suspend compliance with an obligation to hand over an item to the Customer until the Customer has satisfied the claim. In addition, Smartdc is authorized to invoke its right of retention against:
a) third parties that have obtained a right in respect of the item after Smartdc’s claim arose and the item came under its control;
b) third parties with an older right, in the event that Smartdc’s claim arises from an Agreement that the Customer was authorized to enter into with respect to the item, or Smartdc had no reason to doubt the Customer’s authority.
6. Provision of Services
6.1 After the Agreement is formed, Smartdc will perform it to the best of its ability and with due care and professional competence.
6.2 Smartdc will make every effort to realize good and uninterrupted availability of the Services and the associated systems and networks, and to realize access to the details the Customer has stored through these. However, unless otherwise agreed in the quotation by means of a Service Level Agreement (SLA) that has been designated as such, Smartdc provides no guarantee with regard to the quality or availability.
6.3 Terms given for delivery of Products by Smartdc only serve as a guideline and are therefore never strict deadlines, unless expressly otherwise agreed In Writing.
6.4 If at least one of the following situations arises, the Service will be considered to have been “provided”:
a) when the Customer uses the Service;
b) when the Customer pays for the Service;
c) when Smartdc has confirmed delivery of the Service In Writing.
6.5 If and where required for the proper performance of the Agreement, Smartdc is authorized to have certain activities performed by third parties. Any unforeseen additional costs relating to the above will only be at the Customer’s expense if this has been agreed upon In Writing in advance. These General Terms and Conditions also apply to the activities performed by third parties within the framework of the Agreement.
6.6 If this has been agreed upon, Smartdc will provide the Customer with access to an Account. The Account will be accessible by entering a password and a username. Each action performed by means of the Customer’s Account or an Account created by the Customer is deemed to take place under the responsibility and at the risk of the Customer. If the Customer suspects or should reasonably suspect or know that the Account is being misused, the Customer must report this to Smartdc as soon as possible to enable the latter to take measures.
6.7 Smartdc will keep itself available for a reasonable level of remote customer support by telephone and email, during regular local office hours, as indicated on the Smartdc Website, insofar as the applicable SLA does not determine otherwise.
6.8 In the event that, in consultation with the Customer, the original Agreement between Smartdc and the Customer is derogated from, the resulting costs for additional work will be charged to the Customer at the prices and/or rates that apply at the time of execution.
7. Obligations of the Customer
7.1 The Customer is obliged to do everything that is reasonably required and desired to ensure that the Agreement is performed correctly and on time. In particular, the Customer will ensure that any data that Smartdc indicates is required or that the Customer may reasonably be expected to understand to be required for the provision of the Services is made available to Smartdc on time. The term within which Smartdc is required to perform the Agreement will not commence until all the data Smartdc has requested and requires have been received. This does not release the Customer from the payment obligation with regard to Products and/or Services Smartdc has already reserved in order to enable performance of the Agreement.
7.2 If the Customer knows or can assume that Smartdc will need to take additional or other measures to comply with its obligations, the Customer will inform Smartdc thereof without delay. This obligation applies, for instance, if the Customer knows or should anticipate that Smartdc’s systems will be affected by an exceptional peak load, which in all probability could cause unavailability of the Services. This particularly applies if the Customer knows the systems Smartdc uses to provide Services to the Customer are used to provide Services to other parties as well. Upon receiving warning thereof, Smartdc will make every effort to prevent the Services from becoming unavailable. Unless expressly agreed otherwise In Writing, all reasonable additional costs incurred for this purpose will be charged to the Customer.
7.3 Without prior written permission, the Customer may under no circumstances use the Services for High-Risk Applications.
7.4 The Customer is allowed to resell the Services, though only in combination with or as part of the Customer’s own Products or Services, and without revealing that Smartdc is the supplier or subcontractor. The Customer is to indemnify Smartdc against any claims, liability and consequential loss caused by its customers. Smartdc may also act to the full extent of its authority in the event that these customers violate these General Terms and Conditions, the Acceptable Use Policy, the Anti-Spam Policy and the data center regulations.
7.5 If the Customer requires any license or further consent from government authorities or third parties for the Customer’s specific use or intended use of the Services, the Customer itself will ensure that it obtains this. The Customer guarantees towards Smartdc that it holds all the necessary licenses and/or consent for the Customer’s use of the Services.
7.6 Any changes in the Purchase of software licenses, for example for Microsoft and RedHat, must be reported to Smartdc at all times. Any failure will be reported to Smartdc’s suppliers, following which licenses can be revoked.
7.7 In the event that Smartdc agrees to advertise the Customer’s IP addresses, the Customer is obliged to register these correctly in the RIPE database or another database on Smartdc’s instruction, and to allow or create a route object that refers to Smartdc’s network.
8. Relocation of the Service
8.1 The Customer acknowledges Smartdc’s right to relocate the Services. This applies to both the physical room within a data center and to the Services that are offered by means of the data centers.
8.2 Smartdc will inform the Customer thirty (30) days before the relocation of the Services, In Writing, before this relocation takes place, unless this is not possible due to force majeure.
8.3 In the event that Smartdc chooses to change the location of the Services within the data center, the Customer needs to move its Colocation Hardware to the indicated location. The associated costs cannot be charged to Smartdc.
9.1 The Customer will provide the Smartdc employees working at the Customer’s office for the purpose of delivering Products and/or providing Services all the support required to enable them to perform their work.
9.2 For as long as the relationship between the Customer and Smartdc lasts, as well as for one year after it has ended, the Customer will not be permitted to employ Smartdc employees, or have them work for it in any other way, directly or indirectly, without Smartdc’s prior Written permission. In this connection, “Smartdc employees” must be understood to be persons employed by Smartdc or one of its affiliates, or those who were employed by Smartdc or one of its affiliates no longer than six (6) months ago.
10. Prices and rates, additional work
10.1 Unless expressly indicated otherwise In Writing, all the prices and rates stated by Smartdc are denominated in euros (€).
10.2 The Customer will at all times be independently responsible for paying the taxes, penalties and customs duties owed by it.
10.3 Smartdc is authorized to charge the costs associated with payments made using a digital payment method, such as – without limitation – iDeal, credit card and PayPal, on to the Customer.
10.4 Unless expressly indicated otherwise In Writing, all the prices stated by Smartdc are exclusive of turnover tax (VAT) and other levies imposed by the government, and exclusive of transport costs and delivery charges or travel and subsistence expenses.
10.5 If a price is based on information provided by the Customer and the information proves to be incorrect, Smartdc is authorized to adjust the prices accordingly, even after the Agreement has already been formed.
10.6 Unless it is expressly agreed In Writing that prices and rates will apply for a certain period of time, Smartdc is authorized to revise its prices for Products and Services at any time by giving Customer notice in accordance with Section 3 or Section 10.6. The announced price change(s) will become effective thirty (30) days after notice.
10.7 Subject to Section 10.8 & 10.9 below, if the Customer does not want to accept a change in prices or rates announced by Smartdc, the Customer may terminate the Agreement by giving Written notice of termination to Smartdc within fourteen (14) days of the notice of the change in prices or rates given by Smartdc. In the event that the customer gives timely notice of termination under this Section 10.7 the termination will be effective on the date on which the announced change was to take effect.
10.8 Notwithstanding the termination right in Section 10.7, the Customer and Smartdc agree that price changes to the following Products or Services are exempt and do not allow for termination even if significant:
a) License costs of external software Products;
b) Power costs;
c) Use of Products or Services above the agreed service levels and/or purchase of variable quantities, for example with regard to the use of data traffic and energy consumption;
d) Costs arising from external factors over which Smartdc lacks control, for example, imposed levies such as digitax, energy tax and energy transmission costs.
10.9 Smartdc and the Customer also agree that Smartdc may increase all prices by a certain percentage on an annual basis, without further notice. This percentage will not exceed the higher of five (5) percent or the percentage equal to the increase in the consumer price index (CPI) – the official measure for the inflation of consumer prices in the Netherlands – for the year preceding that of the price increase. This indexation right is an integral part of this Agreement and price increases resulting from the indexation applied by Smartdc do not form a basis for termination under Section 10.7 above.
10.10 In the event that, in consultation with the Customer, the original Agreement between Smartdc and the Customer is derogated from, the resulting costs for additional work will be charged to the Customer at the prices and/or rates that apply at the time of execution.
11.1 Unless payments are made through direct debit collection, the Customer must pay Smartdc’s invoices within the payment term stated on the relevant invoice. Where an invoice does not state a payment term, a payment term of thirty (30) days applies.
11.2 All payments by the Customer to Smartdc will be deducted from the Customer’s oldest outstanding invoices, regardless of any indication to the contrary by the Customer.
11.3 Any reliance by the Customer on suspension, set-off or deduction is not allowed.
11.4 Smartdc will at all times be authorized to require advance payment in part or in full in respect of the delivery of Products and/or the provision of Services, for example by means of a direct debit mandate given to Smartdc, and to suspend the delivery/provision until the advance payment is received. In addition, Smartdc is entitled to receive security for payment in a form to be indicated by Smartdc, such as a bank guarantee. In such case, Smartdc will only deliver the Products and/or provide the Services after the required security is obtained.
11.5 If the Customer fails to pay any of Smartdc’s invoices within the payment term (Article 11.1), the Customer will automatically be in default, without any notice of default or demand being required. In such case, Smartdc will be authorized to charge statutory interest as referred to in Section 6:119 of the Dutch Civil Code or the late payment interest as referred to in Section 6:119a of the Dutch Civil Code on the outstanding amount, which will be charged per month or part of a month.
11.6 If, having been given notice of default, the Customer continues to fail to pay the amount owed, plus the statutory interest as referred to in Section 6:119 of the Dutch Civil Code or the late payment interest as referred to in Section 6:119a of the Dutch Civil Code, Smartdc may pass on the claim for collection. In such cases, in addition to the principal and the statutory interest as referred to in Section 6:119 of the Dutch Civil Code or the late payment interest as referred to in Section 6:119a, the Customer will be obliged to pay all extrajudicial expenses and any legal costs, which it will expressly owe in addition to any costs determined at law. These costs will amount to a minimum of 15% of the principal.
11.7 If the Customer fails to pay any of Smartdc’s invoices within the payment term, Smartdc reserves the right to suspend the Service(s) with immediate effect. In the event that an invoice is passed on to a collection agency, the Customer will be liable for the costs imposed by the collection agency. Reconnection can take place after payment of all the outstanding amounts, which will be subject to a minimum charge of €250 excl. VAT.
11.8 Smartdc reserves the right to terminate the Agreement if the Customer fails to pay the outstanding amounts with regard to the Agreement on time. Smartdc will first give the Customer notice of default by sending a Written demand. No Written demand will be sent if a communication from the Customer suggests to Smartdc that payment will not be forthcoming.
11.9 In the event of late payment, the Customer accepts liability for all legal costs and extrajudicial expenses and interests charged by a third party engaged by Smartdc or the collection agency.
11.10 In the event that it reverses any Smartdc invoice paid by direct debit collection without objecting first, the Customer will owe Smartdc an amount of €50. If the Customer reverses the direct debit collection three times without objecting first, it will be charged €500 in administrative charges per reversal from the third reversal onwards. This amount is immediately due and payable.
12.1 Any objections the Customer has against an invoice from Smartdc or any amounts Smartdc has collected through direct debit must be reported to Smartdc within fourteen (14) days of the invoice date, In Writing, after which the Customer will be deemed to have accepted the invoiced or collected amount.
12.2 If the Customer is of the opinion that a Product delivered or Service provided by Smartdc does not meet the requirements the parties agreed on in respect thereof, the Customer must inform Smartdc thereof, In Writing, within fourteen (14) days of the delivery/provision, or within fourteen (14) days of the time at which the Customer could reasonably have become aware of the alleged failure.
13. Taking out of service
13.1 Smartdc is authorized to temporarily take the Services provided out of service for the benefit of maintenance.
13.2 Smartdc is authorized to (temporarily) take the Services provided out of service if it receives an order, judgment or decision from a court, enforcement authority or other government institution.
13.3 Smartdc is authorized to (temporarily) take the Services out of service or limit the use thereof if the Customer fails to comply with an obligation towards Smartdc under the Agreement or acts in violation of these General Terms and Conditions, the Acceptable Use Policy, the Anti-Spam Policy and the data center regulations. Smartdc will inform the Customer of this, unless Smartdc cannot reasonably be expected to do so. The restriction imposed or the taking out of service is without prejudice to the Customer’s other obligations and therefore has no suspensive effect.
13.4 Reconnection in accordance with Article 13.3 will take place once the Customer has complied with all its obligations and has paid the actual reconnection costs, subject to a minimum charge of €250 excl. VAT.
14. Rules of conduct, notice and takedown
14.1 The Customer is forbidden from using the Service to violate applicable laws and regulations, or to infringe the rights of other parties.
14.2 Regardless of whether this is legal, Smartdc forbids using the Services to offer or spread Materials that:
a) are indisputably primarily intended to aid others in infringing the rights of third parties, such as websites that exclusively or mainly use hack tools or provide information on computer crime with the obvious intention of enabling the reader to commit a crime or making the reader commit a crime, rather than enabling the reader to defend against such crimes;
b) are indisputably libelous, defamatory, insulting, racist or discriminatory or incite hatred;
c) contain child pornography or bestiality pornography or obviously aim to assist others in locating such Materials;
d) violate the privacy of third parties, which in any case includes but is not limited to distributing third-party personal data without permission or necessity, or repeatedly harassing third parties with unwanted communications;
e) contain hyperlinks, torrents or references to (the location of) material that indisputably infringes copyright, neighboring rights or portrait rights;
f) contain unsolicited commercial, charity-related or ideals-related communications;
g) contain malicious content, such as viruses or spyware.
14.3 The Customer will refrain from hindering other Customers or Internet users or inflicting damage on the systems or networks of Smartdc or other Customers. The Customer is forbidden from starting up processes or programs via Smartdc’s systems or otherwise that the Customer is aware or may reasonably assume will obstruct or inflict damage on Smartdc, its Customers or Internet users.
14.4 If, in the opinion of Smartdc, the operation of the computer systems or Smartdc’s network or third-party networks and/or service provision via the Internet is hindered, damaged or otherwise at risk, in particular due to the transmission of excessive amounts of email or other data, Denial-of-Service attacks, inadequately secured systems or virus activities, Trojan horses and similar software, Smartdc is authorized to take all reasonable measures it deems necessary to avert or prevent such risk. If the Customer can be blamed for this, Smartdc may charge the costs that are reasonably associated with these measures to the Customer.
14.5 If Smartdc receives a complaint about the Customer having acted in violation of this article, or independently comes to the conclusion that this appears to be the case, Smartdc will inform the Customer of the complaint or violation as soon as possible. The Customer will respond as soon as possible, after which Smartdc will decide on the measures to be taken.
14.6 If Smartdc is of the opinion that Articles 14.1 and 14.2 have been violated, Smartdc will block access to the relevant Material, though without removing this Material definitively, unless this proves to be technically impossible, in which case Smartdc will safeguard this Material to comply with applicable laws and regulations. Smartdc will endeavor to make sure that this does not affect other Materials. Smartdc will inform the Customer of the measures taken as soon as possible.
14.7 Smartdc will at all times be authorized to report any criminal acts discovered. In addition, Smartdc is authorized to provide the Customer’s name, address and other identifying data to a third party that has complained that the Customer has infringed its rights or has violated these General Terms and Conditions, provided that the accuracy of the relevant complaint is sufficiently plausible and the third party has a clear interest in being provided with these data.
14.8 While Smartdc endeavors to act with due care and as reasonably and adequately as possible following complaints concerning the Customer, Smartdc can under no circumstances be held liable for damage or loss arising from the measures referred to in Articles 13.2, 13.3 and this article.
15. Intellectual property rights
15.1 All intellectual property rights to all of the Materials developed or made available by Smartdc as part of the Agreement are vested exclusively in Smartdc or its licensees.
15.2 Smartdc or its licensors hold all intellectual property rights to all of the software, analyses and designs, as well as to preliminary material thereof, that is developed or made available within the framework of the Service.
15.3 The Customer will exclusively acquire the user rights and powers expressly assigned In Writing under these General Terms and Conditions, the Agreement or otherwise, and the Customer will not reproduce these Materials or make these public in any other respect. An exception to the above will be made if Smartdc has indisputably erroneously failed to assign such right to the Customer in an explicit manner. However, Smartdc will at all times only be required to provide the source code of Materials if this is expressly agreed upon.
15.4 Unless this has been agreed otherwise In Writing, the Customer is forbidden from removing or modifying any references relating to copyrights, trademarks, trade names or other intellectual property rights with regard to these Materials, including references relating to the confidential nature and secrecy of the Materials.
15.5 Smartdc is permitted to take technical measures to protect its Materials. If Smartdc has protected these Materials using technical safeguards, the Customer is not permitted to remove or circumvent such protection, except if and to the extent that mandatory law provides otherwise.
16. Provision of data by the Customer
16.1 The Customer will always provide Smartdc, on time, with any and all data requested by Smartdc and any other information that is required for the delivery of the Products and/or provision of the Services.
16.2 The Customer guarantees that the information referred to in Article 16.1 is correct and complete, and that it is authorized to provide that information to Smartdc for the benefit of the delivery of the Products and/or provision of the Services. The Customer indemnifies Smartdc against any third-party claims in this regard.
16.3 If the Customer provides data to Smartdc that can be considered personal data, the Customer guarantees that, with regard to that data, the laws that apply with regard to the protection of personal privacy at the time of the provision are complied with, and Smartdc’s use and processing of the data is permitted. The Customer indemnifies Smartdc against any third-party claims in this regard.
17.1 Smartdc’s Services can be used to process personal data. In this context, Smartdc acts as the Processor within the meaning of the General Data Protection Regulation. The Customer is the Controller. The Customer indemnifies Smartdc against any claims from interested parties pursuant to the above act.
17.2 A processing agreement setting out additional safeguards with regard to the processing and security of personal data forms an integral part of the Agreements between the Customer and Smartdc. This processing agreement has been included with these General Terms and Conditions as Appendix 1.
18.1 The Parties will treat the information that they provide each other before, during or after the performance of this Agreement as confidential if such information has been marked as confidential or the receiving Party is aware or should reasonably assume that the information was intended to be confidential. The Parties will also impose this obligation on their employees, as well as on any third parties engaged by them for the purpose of performing the Agreement.
18.2 Smartdc will not access the information stored by the Customer and/or distributed via Smartdc’s systems unless this is required for the proper performance of the Agreement, or if Smartdc is obliged to do so pursuant to a legal provision or an injunction. In such case, Smartdc will undertake to limit access to the information as much as possible, to the extent that this is within its power.
18.3 The duty of confidentiality also remains in force after termination of the Agreement for whatever reason, and for as long as the Party providing the information can reasonably claim that the information is confidential in nature.
19. Liability of Smartdc
19.1 Smartdc’s statutory liability in connection with an attributable failure in the performance of the Agreement that consists of a failure to comply with the obligations under Smartdc’s Service Level Agreement is limited to the penalty regime as contained in this Service Level Agreement.
19.2 Smartdc is not liable for:
a) any loss or personal injury suffered by the Customer or its employees, customers, representatives or auxiliary persons, except where such loss or personal injury is a direct consequence of gross negligence or willful misconduct on the part of Smartdc;
b) the contents of any information and/or communication that is sent through the Products and/or services, or for any information or content sent via the internet;
c) the content of any information and communication, in any form, that the Customer sends via the network;
d) the correctness or quality of the information obtained via the Services;
e) damage to or loss of some or all of the Customer’s data or one or more of their databases or the loss of technology, unless this damage is a direct consequence of gross negligence or willful misconduct on the part of Smartdc;
f) damage to, destruction of or loss of Colocation Hardware, unless such damage or loss is a direct consequence of gross negligence or willful misconduct on the part of Smartdc;
g) loss that is a direct or indirect consequence of the Customer acting in violation of one or more of its obligations under the Agreement;
h) loss that is a direct or indirect consequence of incorrectness of the information provided by or on behalf of the Customer;
i) damage to or destruction or loss of Colocation Hardware and data or databases as a direct or indirect consequence of the actions of a court, enforcement authority or other government institution;
j) loss that is a direct or indirect consequence of the suspension of Services by Smartdc, as referred to in Articles 13, 14 and 20;
k) loss that is a direct or indirect consequence of the customer portal being offline or otherwise unreachable, temporarily or otherwise;
l) loss that is a direct or indirect consequence of the Customer using software not made available by Smartdc, such as the customer portal or the API (application programming interface);
m) loss that is a direct or indirect consequence of a Denial-of-Service (DDoS) attack or other attack causing a peak in data traffic, or loss caused by one or more successful or unsuccessful hacking attempts, regardless of whether this Service is protected or managed by Smartdc;
n) any loss insofar as this is covered by insurance taken out by or for the benefit of the Customer.
19.3 Smartdc’s statutory liability in connection with an attributable failure to comply with the Agreement, other than the obligations contained in the Service Level Agreement, is limited to the amount that, in the relevant case, is paid out by Smartdc’s general liability insurance, which liability will under no circumstances exceed the amount of the fee stipulated for the relevant Agreement. In the case of an Agreement with a term of more than one year, the stipulated fee will be the total of the fees stipulated for the year in which the failure takes place.
19.4 “Direct loss” refers exclusively to the costs reasonably incurred by the Customer in remedying or resolving Smartdc’s failure in such a way that Smartdc’s performance complies with the terms of the Agreement, as well as the reasonable costs involved in preventing or limiting such loss and the reasonable costs involved in establishing the cause and extent of that loss. If Smartdc and the Customer have expressly agreed on a binding delivery term In Writing, the costs the Customer has reasonably incurred in having to take measures in connection with Smartdc’s failure to deliver within the agreed binding delivery term, less any savings, will be considered direct loss as well.
19.5 Any liability of Smartdc for indirect loss – including but not limited to consequential loss, lost profit and lost sales – is excluded.
19.6 In order to qualify for compensation, the Customer must meet two conditions. The loss must be reported to Smartdc, In Writing, within thirty (30) days of the discovery thereof. The loss must be proved through unambiguous evidence within sixty (60) days of being reported
19.7 The Customer indemnifies Smartdc against third-party claims concerning non-compliance with the rules of conduct when the Services are used by or with the consent of the Customer, and will hold Smartdc completely harmless in respect thereof.
20. Force Majeure
20.1 Smartdc will not be considered to have failed attributably in the event of force majeure.
20.2 Rather than reinstating the Service, Smartdc may select replacement comparable service providers for the provision of these Services.
20.3 Force majeure includes but is not limited to: failures of public infrastructure that is normally available to Smartdc and on which the provision of the Services is dependent, but over which Smartdc has no actual control or in respect of which Smartdc cannot rely on a contractual obligation to perform, such as the operation of – for example – the IANA, RIPE or SIDN registers and all Internet networks with which Smartdc has not entered into a contract; failures of the Smartdc infrastructure and/or Services caused by computer crimes, such as DOS or DDOS attacks or successful or unsuccessful attempts to circumvent network security or systems security; failures on the part of Smartdc’s suppliers, which Smartdc could not have foreseen and for which Smartdc cannot hold its supplier liable, for example because force majeure (similarly) applied to the relevant supplier; defective items, equipment, software or other source material, the use of which the Customer has prescribed; government measures; strikes; wars; terrorist attacks and internal civil commotion.
20.4 If the period of force majeure has lasted longer than sixty (60) consecutive days, the Customer will have the right to terminate the Agreement extrajudicially, In Writing, without this resulting in Smartdc being obliged to compensate the loss the Customer incurs as a result of that termination in any way. Smartdc is entitled to payment by the Customer of all the Products and/Services that were already delivered/provided at the time of the termination.
21.1 Each party is authorized to terminate this Agreement extrajudicially if the other party fails attributably in the compliance with essential obligations under the Agreement, and – having been given proper Written notice of default – does not remedy this failure within a reasonable term. Termination does not release the Customer from any payment obligation with regard to Products and/or Services Smartdc had already delivered/provided at the time of the termination, unless Smartdc is in default with regard to a certain Product or Service.
21.2 Smartdc is authorized to terminate the Agreement with immediate effect, without any further notice of default being required and without this resulting in Smartdc being liable to pay the Customer compensation, if the Customer has been granted a provisional or definitive moratorium, the Customer’s bankruptcy is petitioned for, all or a portion of the Customer’s assets are attached, the Customer’s company is wound up or its business is discontinued, or if the Customer acts in violation of national or international laws and regulations or has provided false data to Smartdc.
21.3 Smartdc is authorized to terminate the Agreement within thirty (30) days of receiving a written confirmation that the lease of any space in which the Services are provided is being terminated or is about to expire, without this resulting in it being liable to pay the Customer compensation.
21.4 Immediately after the Agreement is terminated, for whatever reason, the Customer will stop using the Products and/or the results of Services made available and will return all copies of software, documentation and other Materials that have been made available to the Customer within the framework of the Agreement.
21.5 Unless otherwise stated in the Agreement, the Agreement must be terminated In Writing, subject to a notice period of three (3) months, effective from the end of the agreed period. The notice period starts after Smartdc receives Written confirmation of the termination. Unless otherwise agreed, Services ordered via the automatic ordering process are subject to a notice period of one (1) month. A custom quotation/invoice is subject to a notice period of three (3) months. Upon termination, the customer number and the customer name must be indicated. In addition, the termination must be signed by the legal representative. Termination before the end of the term is not possible.
21.6 Unless the Customer can be considered a consumer, Sections 6:227b, subsection 1, and Section 6:227c of the Dutch Civil Code do not apply to the Agreement.
22. Procedure upon termination of the agreement
22.1 After the Agreement has ended, whether through termination or cancellation, Smartdc may deactivate the Customer’s Account immediately. The Account will not be deleted. Unless otherwise agreed, Smartdc is not obliged to provide the Customer with a copy of the relevant data in such case. The Customer is personally responsible for safeguarding the Materials before the Agreement is terminated.
22.2 After termination of the Agreement:
a) Smartdc will stop providing the Services;
b) Smartdc will be authorized to remove and delete all the Customer’s data and all the data of the Customer’s end users from the Smartdc Products, including dedicated hardware Products.
c) Smartdc will be authorized to make dedicated hardware Products and colocation room available to other Customers;
d) Smartdc will add up all the outstanding invoices on the date of termination, which amounts will become immediately due and payable;
e) subject to Article 22.4, the Customer will remove all Colocation Hardware from the data center and transfer the colocation room to Smartdc in the state it was in at the start of the Service;
f) the Customer will transfer the registered domains that were purchased from Smartdc to another registrar.
22.3 If the Customer does not remove the Colocation Hardware within five (5) working days, in accordance with Article 22.2e, Smartdc may remove, retain or return all Colocation Hardware to the Customer at the Customer’s expense, without being liable for the loss suffered as a result. In such case, the Customer will owe Smartdc a penalty equal to one month’s worth of Colocation Service(s) for each month or part of a month in which the Customer failed to remove the Colocation Hardware.
22.4 Smartdc is authorized to retain the Colocation Hardware for up to ninety (90) days after termination of the Agreement until any outstanding invoices have been paid, without being liable for the loss suffered as a result. After this term, Smartdc will be authorized to sell the Colocation Hardware insofar as this is required to set off all outstanding invoices, for the price Smartdc receives for this on the open market.
22.5 If the Customer does not transfer the registered domains within five (5) working days of termination of the Agreement, in accordance with Article 22.2f, Smartdc will be authorized to deregister or cancel the domain without this resulting in any obligation towards the Customer.
23. Final provisions
23.1 The offers, quotations, Agreements and other legal acts concerning Smartdc’s delivery of Products and/or provision of Services are subject to Dutch law.
23.2 Insofar as mandatory statutory provisions do not provide otherwise, all disputes between Smartdc and the Customer that arise from or relate to the offers, quotations, Agreements and other legal acts concerning Smartdc’s delivery of Products and/or provision of Services will exclusively be submitted to the competent court in the district of Rotterdam.
23.3 Any information and announcements on the Smartdc Website and Materials, including price indications, may be subject to programming and typing errors. In the event of any inconsistencies between the Website and the Agreement, the Agreement will prevail.
23.4 Subject to evidence to the contrary to be submitted by the Customer, the log files and electronic or other Smartdc administrative records constitute conclusive evidence of Smartdc’s statements, and the version of any electronic or other communication received or stored by Smartdc is considered authentic.
23.5 The Parties will at all times inform each other immediately, In Writing, of any relevant changes in name, postal address, email address, telephone number and, if requested, bank account numbers.
23.6 Smartdc is unilaterally authorized to assign its rights and obligations under the Agreement to a third party or one of its affiliates that takes over the Service or the relevant business activity from Smartdc. Smartdc will inform the Customer of this.
23.7 Terms and periods referred to in these General Terms and Conditions are determined on the basis of Dutch local time.
23.8 Smartdc is authorized to inform third parties that Smartdc provides Services to the Customer – for example in the form of a customer case (case study) of the Customer – during sales activities, third-party events, in marketing and sales communication and on the Smartdc Website, without requiring the Customer’s permission.