Keep control over the environment with your equipment while we connect you to the world
Get your own private mini data center with full tech support and unmatched security
Access our rich connectivity ecosystem
Leverage the power of your infrastructure with the public cloud
Connect with our data centers and the cloud – directly and securely
Get to know us better
See who we're working with
Look for documents and brochures
Find out what we're up to
Get the detailed look into our expertise
Learn the success stories of our customers
A colocation agreement consists of the following provisions and documents that form an integral part of the agreement:
For purposes of this agreement, the following expressions shall have the following meanings:
1.1 Smartdc will provide the services to customer from the commencement date with reasonable care and skill in accordance with this agreement.
1.2 Smartdc shall provide to customer the number of cabinet(s) as specified in the particulars, for the placement and having in use of customer equipment in the co-location area. Smartdc shall keep the colocation area and cabinet(s) in a good state of repair.
1.3 Smartdc shall keep the co-location area clean and tidy. This does not include installation, maintenance or any other form of conservation of the customer equipment.
1.4 Smartdc shall grant customer access, with due observance of the access protocol and the authorization rules and the security and conduct regulations as specified in appendix 4, to the co-location area and cabinet(s) in order to install or remove customer equipment and to carry out maintenance thereof.
1.5 Smartdc shall make a reasonable effort to provide elementary support to customer by means of the colocation Department during office hours.
1.6 If, at the request of or with prior consent from customer, Smartdc has rendered additional services, customer shall pay additional service fees for those services according to Smartdc’s usual rates.
2.1 Smartdc shall be entitled upon not less than 30 business days’ written notice to customer to have the customer equipment moved to a different location within the existing facility or to a different facility nominated in writing to customer by Smartdc, provided only that the facility concerned is reasonably close to the existing
facility. The customer must, at its own risk, take care of the moving of the customer equipment and its installation in the new co-location area and/or cabinet(s). The costs and expenses incurred by Smartdc in moving and installing the equipment shall be borne by Smartdc.
2.2 Relocation will only take place for reasons of security or other urgent reasons and Smartdc agrees that it shall use all reasonable endeavours to consult with customer prior to any relocation and to minimize any disruption caused to the operation of the Equipment.
2.3 Upon reasonable notice, customer shall permit Smartdc unrestricted access to the equipment to ascertain whether customer’s obligations under this agreement have been duly observed and performed. Smartdc can access the equipment without prior notice, in case of an emergency situation, or if required by law or court ruling, This will be for instance in case of fire and/or smoke.
2.4 Smartdc shall be entitled to change the opening times of the co-location department after consulting customer. If Smartdc changes the opening times, customer will be timely notified. This does not have any conflict with the 24×7 access to the datacenter.
3.1. Customer shall take care of the installation and maintenance of the customer equipment.
3.2 Customer must observe and comply with the stipulations of appendix 3. Customer guarantees that its employees and any temporary third party staff as specified in the particulars shall have knowledge of the stipulations of appendix 4, and guarantees that these persons shall comply with the stipulations of appendix 4.
3.3 Shipments of equipment to and from the Smartdc facilities are at customer’s risk and expense. VAT and/or import charges are to be prepaid by customer. Shipments to the Smartdc facility should be announced in advance mentioning tracking number and contents of the shipment.
3.4 Customer must ensure that the customer Equipment is suitable for the use of the service, and that customer equipment meets the ESD security norms and requirements as established by the ESDA (Electrostatic Discharge Association) and other requirements that may reasonably be set on it for this purpose by competent authorities.
3.5 Customer shall take out and/or maintain a suitable and adequate insurance at its own expense, in accordance with the stipulations of article 8.
3.6 Customer shall not give the service or any part thereof in (sub) use to any third party or parties in any
way, except with the prior written consent of Smartdc.
3.7 Customer undertakes not to infringe any rights of Smartdc or third parties by use of the Service, not to behave indecently or contrary to good morals or public order towards Smartdc or third parties,and not inflict any damage upon (any property of) Smartdc or third parties. customer undertakes in particular:
4.1 The agreement is concluded on the moment of signing by the parties and is effective on the commencement date for the initial term as stated in the particulars.
4.2 Upon expiry of the initial term as set out in the particulars, the agreement shall be extended automatically each year by a period of one (1) year, unless either party will terminate the agreement by the end of the then effective period, by giving at least three (3) months’ notice by registered mail.
4.3 Either party may partly or completely terminate the agreement in writing with immediate effect and without a notice of default if a petition for liquidation is filed with regard to the other party or if the other party’s business is wound up or terminated for other reasons besides a business reconstruction or merger, without any obligation to pay for damages.
4.4 Termination of this agreement shall be without prejudice to the other rights, duties and liabilities accrued prior to termination and shall not affect any term that is stated to continue or must by inference continue after termination.
4.5 In case of premature termination customer shall not be entitled to reimbursement of any (advance) payments already made.
4.6 Within 10 working days after termination of this agreement, customer shall (at customer’sown cost) disconnect and remove the customer equipment from the cabinet(s) and make good any damage caused thereby to Smartdc’s reasonable satisfaction.
4.7 If customer fails to comply with clause 4.6, customer shall pay to Smartdc on demand as liquidated damages any costs and expenses incurred by Smartdc in remedying the breach.
4.8 If after written notice customer still fails to disconnect and remove the customer Equipment Smartdc may, as agent of customer (hereby appointed), disconnect and remove the Equipment. Smartdc can store the equipment and bill customer at the same tariff as the rack for storage.
4.9 Customer will indemnify Smartdc against any liability to any third party whose goods are stored, having been left at the Rack Space at the end of the Term or the earlier termination of this agreement and will bill customer the same tariff as the rack for storage.
5.1 In addition to the other fees payable, customer will pay for electrical power consumed; and for the purposes of this clause 5.3 power usage shall be calculated by measuring the actual power consumption through the internal power meter(s) installed in the cabinet(s). Each individual power feed is metered separately.
5.2 Power usage will be charged monthly in arrears.
5.3 The power charges mentioned in particulars is subject to change after each new price negotiation with our energy supplier.
5.4 Customer shall pay all invoices within fifteen (15) days of the date of invoice.
5.5 In the event that customer fails to pay any sum due under this agreement, customer shall owe legal commercial interest on the outstanding amount, and, if the customer still does not pay the claim after a written demand or notice of default, Smartdc can pass on the claim for collection, in which case customer shall, in addition to the total amount owed then, be obliged to pay for all in-court and out-of-court expenses.
5.6 All payments made by customer under this agreement shall be made in full without any set-off, restriction or condition and without any deductions for or on account of any counterclaim. No sums paid under this Agreement shall be refundable if a Service is provided by Smartdc but not used by customer (in whole or
part) before the end of the period for which payment has been made in advance.
6.1 Smartdc is entitled to terminate this agreement;
6.2 In the event that any of the services are suspended as a consequence of the act or omission of customer, customer shall pay (in advance of recommencement) all of Smartdc’s reasonable charges and expenses incurred in the implementation of such suspension and any subsequent recommencement of the provision of any services.
The following provisions set out the entire liability of the parties to each other, including the acts and omissions of its employees, agents and subcontractors, arising as a result of negligence or any breach of its obligations under the agreement.
7.1 Neither party shall in any circumstances be liable to the other for any of the following types of losses (whether such losses arise directly, indirectly or otherwise): loss of profit; or depletion of goodwill; or wasted management
7.2 Smartdc will not be liable for loss or corruption of data (and any loss of use or value that arises as a result), or any other kind of consequential damage. The total liability of Smartdc here under in any period of twelve (12) months during the term of this agreement shall not exceed the total of 5 times the aggregated monthly service fees over the past twelve (12) months.
7.3 The liability of customer is limited up to € 500.000 per occurrence and up to € 1.000.000 per year.
7.4 Limitation of liability under this clause 7 does not apply to damages arising out of death or personal injury.
7.5 Parties will notify each other immediately as soon as one of them becomes familiar with a claim that the other party is responsible for.
7.6 Customer shall indemnify Smartdc against all claims of third parties for compensation of damage resulting from the use of the service and the use of customer equipment and its presence in the co-location area.
7.7 A party will only be liable for default (failure to perform /attributable shortcoming)under this agreement if this party, after receiving a written notice of default, still imputable fails to perform its obligations within the reasonable time period for remedy stated in the notice of default.
7.8 This clause 7 has continuing effect after termination of this agreement.
8.1 Any destruction, loss, wear and tear, theft or deterioration of customer equipment shall be at customer’s risk.
8.2 Customer must ensure to have taken out a business liability insurance
(“bedrijfsaansprakelijkheidsverzekering”) regarding customer equipment and the use of the service with an appropriate sum insured, and will maintain this insurance at least for the duration of the agreement. All costs involved in this insurance shall be fully payable by customer.
8.3 At the request of Smartdc, customer shall provide copies of its insurance certificate.
8.4 Customer recognizes that the obligation arising from article 8.2 implies no limitation of his liability for any damage under this agreement.
9.1 Neither party shall be liable to the other in any manner whatsoever if it is unable to perform any of its obligations under this agreement due to any cause beyond its reasonable control including but not limited to all known forms of force majeure and especially including fire, explosion, flood, earthquakes, acts of terrorism, damage to cables by ground works of any third party for whom Smartdc is not responsible or rodents, interruption of, or inability in obtaining, supplies or services from third parties or improper performance of obligations by suppliers of Smartdc. In the event that Smartdc is unable to perform for a period of more than 60 days as a result of a force majeure event, customer will have the right to immediately terminate this agreement without any penalty or further liability to Smartdc. Smartdc will further not invoice customer for those services for the time that Smartdc is unable to perform during a force majeure event.
10.1 Each party shall keep confidential any confidential information disclosed to it by the other party. Confidential information includes, without limitation, information which is marked or expressed as being confidential, the content of this agreement and any information which could reasonably be deemed to be confidential, from its nature, content or the circumstances in which it is provided. Neither party shall disclose confidential information to anyone else except to its employees, agents and sub-contractors who need the information to effect proper performance of this Agreement and/or to its professional advisers. Each party shall be responsible for ensuring that any person to whom information is disclosed by them complies with the terms of this clause 10.1.
10.2 Clause 10.1 shall not apply to any information that is generally available to the public unless this availability results from a breach of this Agreement, to information the receiving party already possesses or which it obtains independently in circumstances in which the receiving party is free to disclose it to others and/or to information that is required to be disclosed for legal reasons.
10.3 This clause 10 has continuing effect after termination of this agreement.
11.1 Customer’s contact person for operational matters designated in the particulars shall designate employees of customer and/or employees of a third party (or third parties) who are authorized, in accordance with appendix 3 and as summarized in the particulars, to have access to the Smartdc facility and the colocation area.
11.2 Customer shall promptly inform Smartdc in writing of any change or adaptation to the data mentioned in particulars.
12.1 This agreement consists of the following stipulations and documents all forming an integral part of this agreement:
12.2 In the event of any inconsistencies between the documents mentioned in article
12.1, stipulations in the articles and considerations of the agreement shall have precedence over the stipulations in the appendices.
12.3 By signing the agreement, the customer accepts the applicability of the general terms and conditions, and certifies to have received a copy thereof.
12.4 By signing the agreement the customer agrees to it that its general or specific condition shall not be applicable.
13.1 This agreement shall be governed by Dutch law.
13.2 Any disputes arising from or relating to this agreement shall exclusively be submitted to the competent court in Rotterdam, the Netherlands.
13.3 Without the consent of customer, Smartdc shall have the right to assign any rights and obligations specified in this agreement to a third party. Customer shall not have the right to assign its rights and/or obligations under this agreement to any third party without the prior written consent of Smartdc.
13.4 This agreement contains all rights and obligations between the parties relating to the subject matter of the Agreement and replaces all prior agreements, obligations and/or arrangements in this respect.
13.5 This agreement can only be amended by means of a written document signed by both parties.
1.1 Smartdc provides to the customer the colocation services described in the colocation agreement.
1.2 Smartdc provides the following standard technical facilities:
1.3 The installation of the additional technical facilities agreed upon between the Parties may only take place following a written instruction from Smartdc to that effect.
2.1 Smartdc understands that non-stop availability of the services is key to customer, and will give great care to ensure uninterrupted power supply as far as reasonably possible.
2.2 Service level power availability: Critical Power on A feed (UPS power) average available 99.99% – and Short Break B feed average 99,9% each – over the period of a month. The non-stop availability is only guaranteed by Smartdc if customer agrees on both A feed and B feed per rack and proper use of PDU as instructed by Smartdc.
2.3 This Service level power availability will be measured over the period of a month. If the Service level power availability is not met, customer will be entitled to receive a crediting which will be subtracted from the monthly service costs. Announced maintenance, force majeure and outages deriving from a direct action
from customer will not be taken into account.
3.1 Smartdc provides redundant cooling (N+1) per suite with enclosed hot and cold corridors for optimal use of cooling capacity.
3.2 Service level temperature: Smartdc maintains a cold corridor temperature of 24 degrees with a maximum deviation of 4 degrees per hour (minimum value 20 degrees, 28 degrees maximum value). The humidity is kept constant at 50%, with a maximum deviation (25% minimum value and 85% maximum value).
3.3 The SLA is valid in accordance with an outside temperature between minus 2 degrees Celsius and plus 32 degrees Celsius;
3.4 Smartdc will measure the air temperature at room temperature.
4.1. Smartdc understands that non-stop availability of the network-services is key to customer, and will give great care to ensure uninterrupted network-services remain available as far as reasonably possible.
4.2. If network services are part of the colocation agreement, and customer chooses not to maintain their own network, the service level of network availability will be 99.9% (excluding customer-infrastructure)
if customer uses Layer 3. Layer 2 is not covered by this service level agreement.
4.3. This Service level network availability will be measured over the period of a month. If the Service level network availability is not met, customer will be entitled to receive a crediting which will be subtracted from the monthly network/bandwidth costs. Announced maintenance and force majeure and
outages following from a direct action from customer will not be taken into account.
4.4. The Service Level Agreement (SLA) is only applicable if the customers’ network configuration is set up redundantly and if they are active based on a Layer 3 connection to Smartdc network equipment. Otherwise, the SLA is not applicable. Customer is responsible for the proper configuration of
network connections on the Customer’s equipment. Customer may request Smartdc to provide remote hands at the prevailing rate. To configure the network connection the right way, Smartdc offers extensive documentation on the various configuration options.
The uptime guarantee that Smartdc issues on colocation is 99.9%. The uptime guarantee is measured by calendar month. Calculation of the percentage of availability on a monthly basis is done according to the following formula:
(Days per month (30) x 24 hours x 60 minutes)
minus the total monthly disruptive service outages in minutes.
x 100
————————————————————————-
(Days per month (30) x 24 hours x 60 minutes)
minus maintenance minutes minus external factors
Interruption of service by communicated / scheduled maintenance or emergency maintenance, force majeure and outage due to the Customer failing to follow agreed procedures are included in the determination of the availability percentage as ‘external factors’.
In case of unplanned downtime of Smartdc colocation services, and thus not achieving the agreed uptime guarantee, customer may obtain a one-time credit percentage of the monthly costs of the service. Customer has right to credit of the monthly service regarding the Smartdc services based on the following
table.
| Realized monthly uptime | Crediting (% of monthly costs as agreed upon) |
| 100% – 99,9% | 0% |
| 99,89% – 99,7% | 10% |
| 99,69% – 99,5% | 15% |
| 99,49% – 99,2% | 20% |
| >99,2% | 25% |
Usage-costs such as power will not be credited. Crediting is only applicable if the customers’ network configuration is set up redundantly based on a Layer 3 connection to the network equipment of Smartdc. Also, the customer needs to have at least two active and separate power feeds.To qualify for the credit claim, customer has to send a ticket through the Smartdc control panel. The expiration date on a claim is 5 days within the last day of the applicable month.
Emergency maintenance is critical, short-term scheduled maintenance (e.g. critical firmware updates on our routers, etc.). These maintenance activities are of great importance for our complete performance and prevent unplanned downtime of the systems that make this SLA possible. Service interruption as a result of
emergency maintenance is not included in the crediting.
Scheduled maintenance that causes disruption of colocation services will be announced at least two weeks in advance by Smartdc. Customer receives a notice of Smartdc per ticket including an estimate of the anticipated duration of the work and the nature of the work and possible consequences for the purchased services by customer. Emergency Maintenance that causes disruption of colocation services, if known earlier, will be timely communicated to customer.
In case of failure in the colocation services, customers can contact their account manager or the support desk via the ticket system in Smartdc control panel. During office hours they can also be contacted through phone +31(0)10-890 0070 or outside of office hours through the 24/7 emergency line on +31(0)10-850 1115.
1.1 Access to the Smartdc co-location Area(s) in which Equipment of customer is co-located will only be granted if the contact person of customer is authorized and if the contact person designated by customer is registered at the reception desk, and will submit to the following access rules:
1.2 Access rules during Office Hours:
1.3 Access rules outside Office Hours: For access outside Office Hours, the same rules apply as those for access during Office Hours indicated under Definitions.
1.4 When leaving the Smartdc co-location area, the authorized employee of customer shall return the visitor’s badge and the access pass at the reception desk (in case of departure during Office Hours) or at the security service (in case of departure outside Office Hours) and shall deregister from the visitors’ register
2.1 Access to the Smartdc Co-location Area(s) in which customer Equipment of customer is housed shall only be granted to a third party called in by customer if:
2.2 Customer shall guarantee and ensure that the employees of third parties will comply with the access rules stated here below.
2.3 Access rules during Office Hours:
2.4 Access rules outside Office Hours:
2.5 Access to the Smartdc co-location area shall only be granted if the third party is accompanied by an authorized employee of customer.
2.6 When leaving the Smartdc co-location area, the third party’s employee shall return the visitor’s badge and the access pass at the reception desk (in case of departure during Office Hours) or at the security service (in case of departure outside Office Hours) and shall deregister from the visitors’ register.
1.1 It is not permitted to bring highly inflammable substances, explosives, poisonous or radioactive substances, acids or bases, or containers with pressurized gas into the Smartdc facility. Small quantities of detergent, for example to clean a screen, are permitted.
1.2 It is not permitted to enter the Smartdc facility area when under the influence of alcohol or other inebriant or intoxicating substances that may influence a person’s motor system and/or state of mind.
1.3 Inside the Smartdc facility, visitors must behave in accordance with general standards of decency.
1.4 Visitors must use the shortest route to reach equipment of customer.
1.5 It is not permitted to bring any liquids into the protected co-location area.
1.6 It is not permitted to smoke or use open fire in the protected co-location area.
1.7 It is not permitted to bring and/or consume any food or drinks in the protected co-location area. Consumption is only permitted in the public space of the facility. It is permitted to use the coffee machine (free of charge) and the soft drinks machine (paid).
1.8 It is not permitted to stay in other co-location areas than those where equipment of customer is located. Entering the adjacent protected co-location areas is explicitly prohibited.
1.9 Entrance doors to protected co-location areas must always be closed, except when entering these rooms.
1.10 It is not permitted to operate or relocate equipment of which a person is not the owner or lessee.
1.11 It is not permitted to relocate cables, directly or indirectly, of which a person is not the owner or lessee.
1.12 Customer equipment may only be placed into the cabinet(s) designated by Smartdc, and work may only be performed to customer’s own equipment inside the co-location area designated for this purpose.
1.13 It is only permitted to use the power supply allocated by Smartdc. Any failures of this supply must be reported immediately to the reception desk or Smartdc’s employees.
1.14 Customer equipment or other equipment placed or used inside the Smartdc co-location area must meet the applicable Dutch norms for fire safety and electricity safety and electromagnetic shielding, including the ESD safety norms and requirements as established by ESD (Electrostatic Discharge Association).
1.15 In the course of installation, maintenance and operation of customer equipment, the installation and safety instructions of the manufacturer must be followed at all times.
1.16 Packaging material of customer equipment sent to Smartdc must be removed in the dispatch room(goods reception area) before installing the equipment in the Co-location Area. Such material can be left in the designated space of the facility, whereupon Smartdc shall take care of removal.
1.17 The instructions of Smartdc employees and security guards must always be followed.
1.18 Any installation of cables and wiring on or on behalf of customer outside the cabinets may only be performed by Smartdc personnel.
2.1 Upon entering the protected co-location area where equipment of customer is set up, the (presence and location of the) following items must be verified:
2.2 The protected co-location areas at are equipped with smoke detectors as well as a fire extinguishing gas installation.
2.3 In case of smoke emission from customer equipment, it is obligatory to do or refrain from doing the following:
2.4 In case of a beginning fire, customer shall undertake the following actions:
2.5 In case of automatic fire detection, the fire brigade and the security guards will be alerted automatically and the fire extinguishing gas installation will be activated. In addition, the doors of all protected co-location Areas will be unbolted. Irrespective of the fact whether customer observes the fire himself, he will have to comply immediately with the following instructions:
2.6 The Smartdc co-location area is equipped with electronic smoke detectors. In case of smoke detection, all swing doors in the building will be closed and an acoustic alarm will be activated. In addition, the doors of all protected rooms and emergency exits will be unbolted.
2.7 If the alarm is activated and the swing doors in the building are closed customer should:
2.8 If customer detects any smoke emission or fire, he must immediately:
2.9 Prevention of injury:
2.10 Risk of Electrocution
1.1 These General Terms and Conditions apply to all offers of Smartdc and all Agreements between Smartdc and the customer where goods and / or services are provided, both under the Agreement(s) and beyond.
1.2 The General Terms and Conditions are always applicable, other conditions refer to certain specific supplies and are only applicable to the specified types of transactions and terms for those transaction may differ from, and will supersede , the corresponding terms of these General Terms and Conditions.
1.3 Whenever these General Terms and Conditions offers (legal) protection to Smartdc, its managers, and/or management, can rely on this protection too.
1.4 Invalidity (null and void or annulled) of an individual provision shall not affect the remaining provisions of these General Terms and Conditions. Parties will then decide on replacing it with an arrangement that will approach the effect of the lapsed provision as closely as possible.
1.5 Deviation from these General Terms and Conditions, is only valid if expressly agreed upon in writing. If these General Terms and Conditions form a part of a written Agreement, in case of conflict between a provision of that Agreement with the provisions in these General Terms and Conditions the provision of the
Agreement will prevail.
1.6 Any purchase conditions or similar (general) terms and conditions of the customer shall not apply.
2.1 For the total or partial transfer of rights and / or obligations to third parties under an Agreement for which these General Terms and Conditions apply, the customer needs to ask for Smartdc’swritten permission in advance.
3.1 Prior to concluding and/or executing an Agreement the customer must take great care to provide all necessary information on its own initiative fully and timely to Smartdc.
3.2 Customer will provide all and any kind of assistance needed for the proper execution of an agreement, not only on request but also on its own initiative.
3.3 Where appropriate and necessary for carrying out work for the agreed services, the customer will make (work or installation) space, electricity, (auxiliary) equipment, materials and equipment for telephone and network connections, timely, free and properly available to Smartdc staff.
3.4 If Smartdc should have access to a location of the customer for the supply of goods or services, the customer will provide access to that location during normal working days and hours of Smartdc.
3.5 The customer is responsible for proper use and / or application of all goods, including data and /or information, of Smartdc which the customer obtains under an Agreement with Smartdc, also the customer must take care of securing them. The customer may not derive any rights from the presence of such goods.
4.1 Both parties are bound to secrecy of all, information which is known or should be known to be confidential, whether or not the information is expressly identified as such, which a party obtained or will obtain from the other party, or is included in the submitted or delivered goods materials or documentation and
they will implement all reasonably necessary precautions to secure secrecy, including imposing the obligation of secrecy on their staff and (employees of) third parties which could access the information.
4.2 On behalf of the customer Smartdc has laid down security measures in protocols, procedures and a standard non-disclosure Agreement. Smartdc is committed to enforce these measures and the customer is obliged to cooperate and comply with the resulting rules.
4.3 Each party shall refrain from actively trying to employ the other party’s employees and may only after prior written consent of the other party, employ, hire or have otherwise, directly or indirectly working for him, staff of that party who are or not involved or have recently (less than a year ago) been involved in the execution of the Agreement.
4.4 Parties shall refrain from any action which might harm the reputation of the other party Offer, time limits, invoice, payment and collection costs.
4.5 customer should take great care to fully inform Smartdc about requirements and / or specifications and to provide all information both on request and unasked, which Smartdc needs to make a correct offer to customer.
4.6 All offers by Smartdc are make without engagement. Offers stand, unless otherwise indicated, for a period of fourteen days.
4.7 Smartdc will only be bound by an oral (and / or by telephone) established Agreement, or an oral amendment to an Agreement, or other oral communication, if the resulting Agreement is explicitly confirmed in writing by Smartdc. If the contents of an Agreement is not laid down in the form of a written Agreement, its content is determined by the text of the written confirmation, together with the provisions of these General Terms and Conditions.
4.8 All commitments (oral, in any commercial form, forecasts, budgets, in websites, or otherwise) which may have preceded a written order confirmation and / or Agreement cease to be valid, unless confirmed, implicitly or explicitly, in the written Agreement.
4.9 All time limits for delivery stated by Smartdc are determined to the best of its knowledge, based on the information available to Smartdc at the time. Smartdc shall exert best efforts to prevent overrun and will inform the customer as soon as possible about the level of (expected) exceeding of any time limit. Unless Smartdc is in default after proper notice of default, exceeding of a time limit will not entitle the customer to any compensation for damages or rescission of the Agreement.
4.10 For the determination of time, quantity, and status of the delivery or delivered goods, the documents supplied by Smartdc will prevail, unless the customer can prove a deviation from the aforementioned
documents.
4.11 Prices offered will, in principle, not be altered before delivery. Those prices are based upon the current circumstances. In case of evident unforeseen significant changes with respect to taxes that affect the price, the cost of wages and / or energy, or the ratio of the applicable exchange rates for the date of delivery – or, in case of an ongoing Agreement during the execution of the Agreement – Smartdc has the right to adept the price so that the adverse effects will be compensated.
4.12 Unless expressly stated otherwise, Smartdc’s prices are “ex-works” (incoterms), goods will be made available (/ at the customer’s disposal) at the office (/ warehouse) at the headquarters of Smartdc and do not include costs for shipping, storage, insurance, customs clearance, installation, travel, nor any other associated costs.
4.13 All prices and amounts are stated in Euros, unless another currency is expressly stated by Smartdc, and do not include sales tax (VAT) or other levies imposed by the government. Differences of opinion concerning any matter of charging VAT to the customer for a certain (type of) delivery will be a question to the auditor of Smartdc, the response of the auditor applies between the parties as a binding opinion.
4.14 Smartdc’s invoices will be paid by the customer in accordance with the payment terms stated on the invoice. If no payment terms are stated on the invoice or in the Agreement, customer will pay within 30 days after the invoice date. Payment by the customer will be made without deduction, offset or suspension, by transferring the amount due in Euro’s into the bank account indicated by Smartdc.
4.15 If the customer should fail to pay within the agreed period of time the customer is deemed by law to be in default and Smartdc will, without notice, have the right to charge customer for the legal interest (interest in accordance with the European 2002 regulations on Late Payment in Commercial Transactions) over the entire amount as of the due date, without prejudice to any rights to which Smartdc may further be entitled.
4.16 All (collection) costs incurred by Smartdc in recovering sums due by the customer, both judicial and extrajudicial, shall be borne by the customer.
4.17 In the event an Agreement is concluded with several (legal) persons as joint principle(s), each of them will be severally liable for
5.1 Any goods delivered to the customer remain the property of Smartdc as security for the payment of all amounts related to the Agreement by the customer to Smartdc, until the customer has paid all sums due to Smartdc including all costs and any increases in interest and collection costs. customer will refrain from all (legal) acts that could hamper Smartdc in exercising the reserved property rights. As long as the reservation of title is valid, the customer may only (re)sell the goods, as part of the normal business operation of the customer.
5.2 Notwithstanding any delivery obligation. Smartdc may maintain possession of goods, copyrights and other proprietary rights, and (intermediate) results of services, received or produced, in the context of the Agreement, until the customer has paid all amounts owed to Smartdc.
5.3 The customer will bear the risks for goods delivered by Smartdc from the time of delivery. The risk of damages to or loss of these goods will pass to the customer at the moment that these goods are put at his disposal or have been handed over to a third party (e.g. a carrier) on the customer’s behalf.
6.1 If the nature or contents of an order for services should alter to the extent that the agreed duration will be affected, the customer will notify Smartdc as soon as possible. Any costs ensuing from the alteration will be borne by the customer.
6.2 If an Agreement was concluded for a set number of hours, and this number should be exceeded, the extra work will be invoiced to the customer at 50% of Smartdc’s usual hourly rates. If the Agreement is terminated before the agreed number of hours is spent, the customer will pay Smartdc for the unused hours a
fee based on half of Smartdc’s usual hourly rates.
6.3 If a fixed price or a maximum number of hours is exceeded (partly) due to lack of customer or third parties involved in the execution of the Agreement, the cost of the extra work has to be fully paid for by the customer.
7.1 If an assignment comprises modification, expansion, or adaptation of software used by the Customer, the Customer guarantees that he has the right to have these modifications of (the source-code of) the software done, either in virtue of his ownership of the (intellectual) property-rights or on account of the permission
obtained from the holder of the property-rights. The Customer will indemnify Smartdc against third-party claims in this respect.
7.2 Under a software licence Agreement, Smartdc will only transfer to the Customer the non-exclusive right of usage. All further rights (of intellectual and/or industrial property, including copyrights) are reserved to Smartdc. The Customer may not transfer the right to use the software to a third party, except after obtaining written permission of Smartdc.
7.3 The Customer does not obtain the right to copy the software, change the software, or have it changed by a third party, except on the basis of a right granted by law. The license to use the software is limited to the use of this software on a single computer system and / or for one workstation at the same time, unless parties have agreed upon a multi-user license Agreement. In case of “multi-user licenses “Customer may have the software loaded on the agreed number of (computer) systems and/or in use at the agreed number of
workplaces.
7.4 If standard software is supplied in sealed wrapping, Customer will not break the seal, unless he accepts the delivered product and thereby agrees with the terms of the (licence) Agreement accompanying the software.
7.5 Software supplied by Smartdc may be provided with safety devices protecting the rights of Smartdc pertaining to the software. The Customer is not allowed to remove these provisions.
7.6 Smartdc will indemnify the Customer against claims of third parties in respect of violation of their rights in the Netherlands by standard software supplied by Smartdc. If necessary Smartdc may implead its supplier(s) / licensor(s).
8.1 If an Agreement is concluded concerning the supply of services where the Customer makes use of software, equipment, buildings, networks or Internet connections from Smartdc, the Customer undertakes not to infringe any rights of Smartdc or third parties by use of the Service, and not inflict any damage upon (any property of)Smartdc or third parties. Customer undertakes in particular:
8.2 The Customer is liable for any damage that the Customer, its employees and / or equipment inflict Smartdc by use of a service by the Customer. Therefore, the Customer must have these adequately covered by insurance for at least the duration of the Agreement. At Smartdc´s request the Customer will provide
Smartdc with prove of proper insurance. The costs of insurance shall be borne by the Customer.
9.1 In the event the Customer does not fulfill its obligations after being summoned to comply or having received a notice of default thereto, Smartdc may suspend the execution of the Agreement until the Customer has met all its obligations.
9.2 If Smartdc has good reason to suspect that the Customer is not sufficiently solvent (anymore), Smartdc may suspend the (further) execution of any Agreement concluded with the Customer until the Customer has provided sufficient security for the fulfillment of its obligations. The suspension starts as soon as Smartdc has informed the Customer in writing that the execution is suspended.
10.1 No party is obliged to fulfill any obligation ensuing from an Agreement to which these General Terms and Conditions are applicable, if that is not possible for reasons that cannot be attributed to a fault of that party and are not for its risk. If a party cannot be expected to fulfill its obligations due to force majeure or
similar circumstances, performance under the Agreement will be suspended for the duration of no more than one month, after which period of time parties shall consult with each other about interim modification or early termination of the Agreement.
10.2 Force majeure, as meant in the previous article, also includes inability to comply due to strikes of necessary staff, and force majeure and / or default of suppliers of Smartdc; and also prevention of (timely) performance as a result acts or restrictions imposed mandatory by the government to Smartdc . Furthermore
the failure of any form of supply of energy and / or network connections due to breakage or damage to cables, or otherwise failure of electricity or (Internet) connections, fire, caused by external events or shortcomings of third parties, are subject to force majeure.
11.1 Smartdc will only be liable for default (failure to perform /attributable shortcoming)under an Agreement to which these General Terms and Conditions apply, if Smartdc after receiving a written notice of default still imputable fails to perform its obligations within the reasonable time period for remedy stated in the notice of default and the Customer then rescinds the Agreement.
12.1 Smartdc always will guarantee that products and services supplied will be of good quality. Smartdc cannot however guarantee that the ends aimed at by the Customer will be achieved if the Customer’s expectations exceed any guaranteed qualities stated in writing in an Agreement.
13.1 Smartdc’s liability is limited to those cases and to the extent liability is expressly accepted for in these General Terms and Conditions.
13.2 Smartdc accepts liability for bodily injuries or similar damage caused by products that are produced by Smartdc, where the maximum amount to be reimbursed by Smartdc never will exceed the coverage provided by Smartdc’s insurance.
13.3 Smartdc accepts liability to the limits mentioned in article 13.6, in such cases in which the Customer proves that the occurrence of the damage is directly and entirely due to willful intent or gross negligence on the part of Smartdc.
13.4 Smartdc accepts liability only for direct damage caused by a shortcoming in the fulfillment of an Agreement which is attributable to Smartdc, but never more than up to the limits mentioned in article 13.6.
13.5 In all other cases, including damage caused by an unlawful act of (an employee of) Smartdc, Smartdc’s liability for damage suffered by the Customer is excluded, regardless of how an action may be brought against Smartdc. The exclusion of all liability of Smartdc applies particularly (but not only) in respect of:
13.6 Except in case of Products liability the total liability or obligation to compensate for damages of Smartdc will never exceed the agreed price (excluding VAT) for the Agreement with the Customer. The maximum liability in case of long-term Agreements will never exceed the amount paid by the Customer to Smartdc for the products supplied and/or services rendered during the last twelve months preceding the date on which the damage occurred. In all cases however, the sum total of Smartdc’s liability or obligation to compensate for damages will never exceed the amount of Euro 100,000.=. This maximum liability is subject to deduction of any sums reimbursed to the Customer by Smartdc. If Smartdc holds the Customer liable for any damage suffered by Smartdc, the maximum liability as described in this Article will be applicable.
13.7 Without prejudice to other provisions in these General Terms and Conditions, Smartdc shall not be required to compensate for damage if Smartdc is not notified in writing of the damages as soon as possible, at the latest within 3 months of their occurrence.
13.8 The Customer must indemnify Smartdc against claims of the Customer’s customers and other third parties which have a (business) relation with the Customer.
13.9 The Customer must indemnify Smartdc against claims with respect to damage suffered- in connection with the execution of the Agreement – by third parties, including employees of Smartdc, which damage resulted from an act or omission of the Customer or from an inadequate or defective product made available, supplied or used by the Customer.
13.10 The Customer must indemnify Smartdc against claims by persons whose personal data is or has been recorded, processed or stored in connection with a register of persons maintained by the Customer and/or for which the Customer is responsible.
14.1 Agreements entered into for an indefinite period of time, can only be terminated on the last day of a month by written notice which must be received at least an entire calendar month in advance.
14.2 Each party may partly or completely terminate all Agreements concluded between the parties in writing with immediate effect without a prior notice of default, without any obligation to compensate for damages and without prejudice to any rights or remedies to which he may further be entitled, if the other party is granted a provisional or non-provisional suspension of payments, if a petition for bankruptcy or liquidation (USA) is filed with regard to the other party or if the other party should lose control over his assets, or if it is known that the
other party’s company in the short term will cease to exist or in any other cases that it should be evident that the other party will no longer be able to perform his obligations.
14.3 If a situation of force majeure lasts for more than 90 days, the Parties shall be entitled to terminate the Agreement by rescinding it in writing. What has already been performed shall then be settled proportionately, without the parties otherwise owing each other anything.
14.4 Rescission of an Agreement has no effect with regard to the earlier and correct supply of goods or services, unless the Customer proves that what has been supplied before the rescission is of no use to him without provision of the remaining part of the goods or services.
14.5 In case of premature termination or dissolution, the Customer shall not be entitled to reimbursement of any payments already made nor be discharged from the obligation of paying sums due before the time of termination.
15.1 All Agreements and relationships between Smartdc and the Customer are subject to the Law of The Netherlands.
15.2 Disputes between Smartdc and the Customer shall be exclusively submitted to the competent court in Rotterdam. However, if the Customer is domiciled abroad, Smartdc reserves the right to submit a dispute between parties to be decided by the competent court in the country where the Customer is domiciled.
15.3 The Vienna Sales Convention of 1980 shall not apply.
15.4 Parties may agree that a dispute is subject to arbitration according to a deed to be drawn up there to, or that a binding advice shall be requested in view of settling the dispute.
