Terms and Conditions

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1. GENERAL

1.1 Applicability

1.1.1 These conditions have been drafted in order to further a pleasurable cooperation amongst parties and for the protection of each other’s interests. Please read further.

1.1.2 These conditions are applicable to all proposals and/or deliveries made by Cyso Managed Hosting and agreements and/or other legal relationships between Cyso Managed Hosting and the Customer, the resulting provisions and related activities regardless of whether or not they are based on a verbal, written, and/or electronic agreement, unless otherwise agreed upon in writing.

1.1.3 Cyso Managed Hosting cannot agree with the applicability of purchase conditions or any other conditions and these are then friendly but also expressly rejected by Cyso Managed Hosting, unless otherwise agreed upon in writing.

1.1.4 The General Conditions Cyso Managed Hosting are filed with the Chamber of Commerce in Noordwest-Holland under number 37133395 as well as with the clerk of the court’s office in the district court of Amsterdam under number 129/2007.

1.1.5 Cyso Managed Hosting reserves the right to make alterations and/or additions to the General Conditions Cyso Managed Hosting.  The modified General Conditions Cyso Managed Hosting will become applicable, unless objections against modifications are made in writing within 30 (thirty) days of the notification date of the change.

1.1.6 Changes in and additions to the General Conditions Cyso Managed Hosting and/or agreements made between Cyso Managed Hosting and the Customer are only valid when agreed to by Cyso Managed Hosting in writing.

1.1.7 If the Customer consists of more than one legal entity or organization, each will be responsible for the entire fulfillment of the obligations that may flow forth from the agreement with Cyso Managed Hosting.

1.1.8 The headings above the articles of these conditions are only intended to increase the legibility of this document. The content and meaning of an article placed under a particular heading is, therefore, not limited to the meaning and content of the heading.

1.2 Definitions

In the General Conditions Cyso Managed Hosting the following words and expressions are capitalized. Any of the following words and expressions shown in the singular shall have the same meaning when used in the plural and vice-versa.

1.2.1 Advance:
As further described in article 7.5.

1.2.2 Application Software:
Products which offer a specific application to and for users.

1.2.3 ASP-service:
ASP (Application Service Provider)-service constitutes the provision by Cyso Managed Hosting of Application Software via Hosting.

1.2.4 Back-up:
Spare copies of digital data and/or information.

1.2.5 Colocation Hosting:                   
The delivery of Hosting by Cyso Managed Hosting on the Customer’s servers.

1.2.6 Customer:
Anyone who requests and orders the delivery of Products.

1.2.7 Cyso Managed Hosting:
Cyso Managed Hosting B.V. and its rightful successors or affiliated organizations and partners that will enter into an agreement with the Customer and has declared the General Conditions Cyso Managed Hosting applicable.

1.2.8 Cyso Managed Hosting Products:
All products and services provided by Cyso Managed Hosting and the resulting provisions and related activities, which do not originate from third parties and whose intellectual property rights, industrial property rights and other rights are held by Cyso Managed Hosting.

1.2.9 Cyso Network:   
The transfer hardware and, where applicable, the routing hardware and other technical resources that make the transfer of signals between connection points possible via cables, radio waves, optical resources, and other electromagnetic resources, for so far as such is under the direct control of Cyso Managed Hosting. Data Center: A data center is a facility where servers can be connected to networks and especially the Internet.

1.2.10 Error:
As further described in article 6.7.

1.2.11 Fair Use:
The reasonable use by the Customer of the Products.

1.2.12 Fixed Price:
As further described in article 7.3.

1.2.13 Hosting:              
The offering and Maintenance of and access to web space for the saving of information, pictures, and other substance on server(s), which are placed in the Data Center. Colocation Hosting also falls under Hosting.

1.2.14 Identification Codes:
Usernames, passwords, address codes and/or other codes.

1.2.15 IP address:         
A unique assigned number to which a specific task, (domain) name, or host can be connected. Maintenance: Maintenance on Application Software and/or Maintenance on Hosting.

1.2.16 Maintenance on Application Software:             
Preventive and corrective maintenance on Application Software.

1.2.17 Maintenance on Hosting:          
Preventive and corrective maintenance on the Cyso Network and on the directly connected servers thereto located in the Data center and owned by Cyso Managed Hosting or the Customer, which are used with Hosting.

1.2.18 Object Code:
The computer programming code substantially in binary form. It is directly executable by a computer after processing, but without reverse engineering, compilation or assembly.

1.2.19 Open Source Software:
Computer software for which the related Source Code may be seen, used, improved, supplemented, and distributed by the licensee and as further indicated at http://www.opensource.org /docs/definition.php.

1.2.20 Process-data:
The data entered within the Products and/or computer hardware from the Customer by the Customer and/or a third party.

1.2.21 Products:                                
All Cyso Managed Hosting Products and/or Third Party Products provided by Cyso Managed Hosting, the resulting provisions and related activities. ASP service and Hosting are considered Products.

1.2.22 Source Code:
The computer programming code that may be displayed in a form readable and understandable by a programmer of ordinary skill. It includes related Source Code level system documentation, comments and procedural code. Source Code does not include Object Code.

1.2.23 Spam:
The unrequested sending of a large amount of e-mail with same content and/or the unrequested posting of a large amount of messages with the same content on the Internet in news groups. This includes spam that via any other provider is sent with reference to a website, e-mail address, or other service from Cyso Managed Hosting.

1.2.24 Subsequent Calculation:
As further described in article 7.4.

1.2.25 Support:
As further described in article 4.3.

1.2.26 Third Party General Conditions:
Third Party General Conditions are amongst others understood as the delivery conditions, license conditions, warranty conditions or other conditions maintained by a third party.

1.2.27 Third Party Products:
All products and services provided by Cyso Managed Hosting, the resulting provisions and related activities, which originate from third parties and whose intellectual property rights, industrial property rights and other rights are not held by Cyso Managed Hosting, such as but not limited to Data Center(s), Open Source Software, and, unless agreed otherwise in writing, Application Software.

1.2.28 Workdays:
Normal Dutch working hours (9.00-18.00) and days (Monday through Friday) with the exception of public holidays.

1.3 Agreements

1.3.1 An agreement between Cyso Managed Hosting and the Customer for which no further contract and/or term has been agreed has a term of 1 (one) year if the delivery concerns a Product such as but not limited to Hosting, for which a periodic fee is charged. If this agreement is not terminated or not timely terminated, it shall be extended repeatedly in increments of 1 (one) year.

1.3.2 Termination of the agreement as described in article 1.3.1 occurs by means of a registered letter, which must be received by the other party no later than 30 (thirty) days prior to the expiration date of the agreement.

1.3.3 Each party has the right to terminate the agreement wholly or partially without judicial intervention by means of a signed registered letter. This can be done if, after notifying the breaching party in writing of a failure to fulfill their obligations, the breaching party then fails to meet the aforesaid obligations within a reasonable period of time.

1.3.4 A party also has the right to immediately terminate the agreement wholly or partially without judicial intervention through means of a non-judicial declaration and/or withdraw and/or annul an offer if bankruptcy or suspension of payment has been filed for the other party, if the other party is in a state of bankruptcy or suspension of payment has been granted or if the other party’s company is liquidated or ended for any reason other than reconstruction or company merger. In these cases, any claim by Cyso Managed Hosting will be immediately due.

1.3.5 After the agreement has been ended, for any reason, the Customer can no longer obtain any of the rights provided by the agreement, leaving unhindered the existence of the obligations of both parties which by their nature continue automatically after the conclusion of their agreement, such as but not limited to, obligations concerning property rights, confidentiality, and non-competition.

1.3.6 If Cyso Managed Hosting, in order to perform an agreement with the Customer, needs to receive certain goods from third parties and/or to deliver certain goods to third parties such as the application for, the transfer of, the termination of, or the change of information from domain names, in the name of the Customer, then Cyso Managed Hosting is authorized to do such in the name and for the risk of the Customer. The Customer shall fully indemnify Cyso Managed Hosting in this regard.

1.4 Co-operation/Information Requirements For the Customer

1.4.1 All assignments are carried out by Cyso Managed Hosting on the basis of data, information, requests, and/or requirements made known to Cyso Managed Hosting by the Customer.

1.4.2 The Customer shall provide all necessary cooperation to Cyso Managed Hosting and shall make timely known all useful and necessary data and/or other information required for an adequate execution of the agreement. The Customer shall ensure the accuracy of this data and/or other information.

1.4.3 If data, information, and/or requirements necessary for execution of the agreement are not, not timely, and/or not in accordance with the agreements made available to Cyso Managed Hosting or if the Customer fails to meet its obligations in any other way, Cyso Managed Hosting has in any case the right to terminate or dissolve the agreement or suspend execution of the agreement and to charge the costs incurred at its usual rates.

1.4.4 If changes and/or new facts arise in regard to data, information, requests, and/or requirements provided earlier, Cyso Managed Hosting will always be fully justified in consultation with the Customer to adjust the agreement to these new circumstances or to dissolve or annul the agreement.

1.5 Confidentiality/Non-competition

1.5.1 Cyso Managed Hosting and the Customer mutually commit themselves to the confidentiality of all data and information concerning each other’s organization, clients, files, and Products, of which they become aware while working for each other or for the Customer’s clients. Data and information may only be used in order to carry out the agreement between parties.

1.5.2 Cyso Managed Hosting is authorized to place the name and logo of the Customer or the Customer’s clients who are given rights to the Products on the Cyso Managed Hosting website and/or reference list and to make them available to a third party for information.

1.5.3 The value of Cyso Managed Hosting is mostly represented in its employees To protect this capital of Cyso Managed Hosting the Customer and its clients will not enter into any direct or indirect commercial, employment or other such relations with any employee of Cyso Managed Hosting during the agreement and for a period of 12 (twelve) months after termination or dissolution of the agreement, without the written consent of Cyso Managed Hosting. The Customer will ensure that its clients comply with the foregoing obligation.

1.5.4 In the event that the Customer breaches article 1.5.3, the Customer will be charged, without further notification required, a fine of Euro 50.000,- (fifty thousand) for each breach, undiminished the right of Cyso Managed Hosting to claim full compensation for damages incurred. 

1.6 Liability

1.6.1 A party’s total liability due to culpable failure to fulfill the agreement, shall be limited, in accordance with articles 1.6.2 and 1.6.3, to compensation for direct damage and to a maximum of the amount of the price stipulated in the agreement (excluding VAT) to a maximum of Euro 250.000,- (two hundred and fifty thousand), whereby a sequence of events is regarded as one event.

1.6.2 If the agreement also includes an obligation with a term of more than 1 (one) year and Cyso Managed Hosting’s liability flows forth from this agreement, the stipulated price will be calculated on the basis of the total amount (excluding VAT) as actually paid by the Customer to Cyso Managed Hosting on the basis of the agreement for 1 (one) year (this being the year in which the damage occurred) to a maximum of Euro 250.000,- (two hundred and fifty thousand).

1.6.3 If a party has adequately insured itself against damage, then the party is in any case not liable for further damage and will not compensate for any further damage which the other party may suffer on the basis of the agreement, however caused, than is covered and actually compensated by the insurance, except in case of malicious intent (opzet) or reckless disregard (bewuste roekeloosheid).

1.6.4 The total liability for damage resulting from death or physical injury will in no event amount to more than Euro 1.000.000,- (one million), whereby a sequence of events is regarded as one event.

1.6.5 Direct damage is exclusively understood as:

  1. The reasonable costs made in determining the cause and the extent of the damage;
  2. The reasonable costs incurred in prevention or limitation of damage, to the degree that the Customer can demonstrate that these costs have led to the limitation of the damage.

1.6.6 Liability for indirect damage, including consequential damage, loss of profit, loss of savings, mutilated and/or lost data, delays, losses, damage as a result of a failure to provide the required information or assistance, damage through corporate inactivity, and/or claims from third parties against the Customer, is expressly rejected.

1.6.7 With the exception of the case named in article 1.6.1 and 1.6.4, Cyso Managed Hosting has no liability for damage compensation regardless of what an action towards compensation could be based upon.

1.6.8 Liability exists solely when the damaged party immediately and appropriately notifies the other party of the deficiency in writing, proposing therein a reasonable time period for correction of the deficiency and that party then culpably fails to meet the aforesaid obligations. The notification of deficiency ought to be as detailed a description of the deficiency as possible so that the party is able to react adequately.

1.6.9 The condition for the existence of any right to compensation is always that the damaged party notifies the other party in writing within 60 (sixty) days after the damage came into existence, by registered mail, and takes the necessary measures to limit the damage as much as possible.

1.6.10 The Customer indemnifies Cyso Managed Hosting from all liability from third parties due to allegations as a consequence of deficiency in a product, system, or service provided by the Customer to third parties that consisted of a delivery made by Cyso Managed Hosting.

1.6.11 Cyso Managed Hosting does not accept any liability for damage regardless of its nature caused by Third Party Products which Cyso Managed Hosting has delivered to the Customer. If possible Cyso Managed Hosting will transfer its rights for damage compensation from the supplier of the Third Party Product in question to the Customer.

1.6.12 Cyso Managed Hosting is not liable for any damage regardless of its nature, which is the result of a failure to provide Hosting, ASP-service, Support, Maintenance on Hosting, Maintenance on Application Software and/or Warranty on time and Cyso Managed Hosting is not liable for any damage regardless of its nature, which is the result of the fact that Cyso Managed Hosting must comply with certain changed and new laws and other legislation such as but not limited to wiretap or information provision activities or an obligation to retain records.

1.7 Transfer

1.7.1 The agreement between Cyso Managed Hosting and the Customer and the rights and obligations, which flow forth from this agreement, cannot be transferred to a third party by the Customer without the prior written consent from Cyso Managed Hosting.

1.7.2 The Customer gives Cyso Managed Hosting in advance the right, without needing the explicit approval of Customer, to transfer the whole Contract or parts thereof to:
a) holding-, sister- and/or subsidiary companies;
b) a third party in the case of merger or acquisition of Cyso Managed Hosting.
In the event this happens Cyso Managed Hosting will inform Customer.

1.8 Force Majeure

1.81 Parties shall strive to perform the concluded agreement timely and completely. Neither party is obligated to fulfill any obligation if they are prevented from doing so as a result of circumstances, which can be considered beyond their fault, and by law, legal act, or generally accepted practices cannot be held accountable for. The aforementioned circumstances include circumstances that are beyond a party’s power as well as business risks, these include but are not limited to failure to perform by a supplier, the late or non-availability of required information and specifications and/or changes in such information, incorrect functional specification of Third Party Products and/or products delivered by a third party, bad weather conditions, fire, explosions, electricity failures, network failures, floods, illness, lack of staff, strike or other employment conflicts, accidents, actions by the government, not being able to obtain required licenses and/or permits, lack of materials, disruptions in the energy delivery, theft, traffic disruptions and/or transportation problems.

1.8.2 When force majeure is of a temporary nature, a party experiencing force majeure has the right to suspend its commitments until force majeure has ceased to exist without being obliged to any form of damage compensation.

1.8.3 Parties reserve the right, in the case of force majeure, to collect payment for obligations already fulfilled before force majeure was known.

1.8.4 In the event that force majeure of either party surpasses a three month period, either party has the right to terminate the agreement without being obliged to any form of damage compensation regarding such termination.

1.9 Nullity

1.9.1 If one or more terms (or part of a term) of the agreement are nullified, declared to be nullified, annihilable or have lost their validity in another way, the other terms (or part of the term in question) of this agreement will remain in force undiminished.

1.9.2 In regard to terms (or part of the term) that are nullified, declared to be nullified, annihilable or lose their validity in another way, parties shall consult with each other to try to reach a substitute arrangement with in which the parties shall strive for the maintenance of this agreement (or the remainder of the term in question) in its totality.

1.10 Applicable Law and Dispute Mechanism

1.10.1 All agreements made between Cyso Managed Hosting and the Customer are governed by the laws of The Netherlands, unless otherwise agreed upon in writing. Parties explicitly agree that the United Nations Convention on Contracts for the International Sale of Goods (CISG) is not applicable.

1.10.2 Any disagreement between parties because of any agreement will be solved through arbitration of the Stichting Geschillenoplossing Organisatie en Automatisering (SGOA) (The Dutch arbitration court (foundation) for ICT related matters), in accordance with the SGOA’s regulations for arbitration. With the mutual agreement of both parties, prior to arbitration, parties may try to solve their disagreement through other provisions offered by the SGOA for the settlement of disputes.

1.10.3 If the SGOA declares itself unauthorized or if parties mutually agree to such, disagreements will be placed before a qualified court in Amsterdam, The Netherlands.

1.10.4 The foregoing shall not prevent any party from taking legal procedures, prior to turning to the SGOA, for purposes of sequestration and/or garnish in order to ensue security for its existing rights.

1.10.5 The General Conditions Cyso Managed Hosting are translated from the original Dutch version and the intention thereof is valid in any disagreement.

2. HOSTING

2.1 Delivery of Hosting

2.1.1 Cyso Managed Hosting shall delivery the Hosting as soon as possible after the conclusion of the agreement.

2.1.2 The Customer shall provide all documents, information, data carriers, and other material necessary for the delivery of the Hosting completely, reliably, and timely to Cyso Managed Hosting. The Customer shall follow instructions from Cyso Managed Hosting regarding the delivery of the Hosting. Hosting in General Hosting will only take place at a Data Center approved by Cyso Managed Hosting and on the equipment approved by Cyso Managed Hosting. Cyso Managed Hosting may at its sole discretion provide the Customer with the possibility to make enhancements, additions, and/or changes in the Hosting. If this possibility is offered, the Customer will be responsible and liable for all enhancements, additions, and/or other changes made and the consequences thereof.

2.1.3 With regard to the access and use of the Hosting, the Customer has equipment and software directly or indirectly available which comply with the standards and/or requirements set by Cyso Managed Hosting of which the Customer has been notified directly or indirectly. The Customer is required to maintain compliance with the conditions set out in this article. As long as equipment and/or software does not comply with this article, the obligations of Cyso Managed Hosting to provide access to the Hosting and the use of such may be suspended by Cyso Managed Hosting.

2.1.4 The Customer will enable Cyso Managed Hosting to verify if the standards and/or requirements as set out in article 2.2.3 are met.

2.1.5 If the Customer, after the verification as set out in article 2.2.4, still fails to meet the standards and/or requirements as set out in article 2.2.3, Cyso Managed Hosting will have the right to terminate or dissolve the agreement wholly or partially without prior notification and/or judicial intervention.

2.1.6 The Customer is required to follow instructions given by Cyso Managed Hosting regarding the Hosting.

2.1.7 Cyso Managed Hosting is entitled to view log files and the like for purposes of analyzing the use of the Hosting. The results of such an analysis will not be made available to third parties (third parties do not include holding or subsidiary organizations of Cyso Managed Hosting). This does not apply to figures and data with regard to the use of the Hosting which are not directly traceable to the use by the Customer. 

2.1.8  In the event the Customer signals a malfunction, the Customer will report such immediately to Cyso Managed Hosting. After the Customer has notified Cyso Managed Hosting of the malfunction, Cyso Managed Hosting will take the necessary steps, which will lead or could lead to a solution.

2.1.9 The costs for resolving the malfunction are for the account of the Customer if it appears that the malfunction is the result of the Customer’s act or failure to act in accordance with the agreement.

2.1.10 Cyso Managed Hosting will inform the Customer prior to the commencement of intended Maintenance on Hosting, if this Maintenance on Hosting will lead to problems with regard to gaining access to the Hosting or the non availability of the Hosting. In this case Maintenance on Hosting will take place from 00.00 until 07.00 hours (CET). Other Maintenance on Hosting will take place during Workdays.

2.1.11 The Customer can consult http://service.cyso.co.uk 24 hours a day for the calculation of the generated bandwidth. The service portal is binding for the determination of the amount of bandwidth generated. The volume of the generated bandwidth is determined by the incoming bandwidth and the outgoing bandwidth added together.

2.3 Use of the Hosting

2.3.1 The Customer is prohibited from reselling and/or leasing the Hosting, unless otherwise agreed upon.

2.3.2 The Customer is prohibited from using hardware or software in a manner that may result in damage to the Hosting or a disruption in the Hosting.

2.3.3 The Customer must request in writing a change or move of the Hosting from Cyso Managed Hosting. Cyso Managed Hosting is authorized to charge additional costs by change or move of the Hosting.

2.4 Changes in Hosting properties

2.4.1 Cyso Managed Hosting is authorized to change the technical properties of the Hosting.

2.4.2 Cyso Managed Hosting will notify the Customer of any unavoidable changes within a reasonable term, unless this is not reasonably possible.

2.4.3 If the changes as indicated in this article have a significant impact on the Customer’s business or the functionality of the Hosting, the Customer has the right to terminate the agreement immediately. A move of the Hosting within or to another Data center is explicitly not included under this article.

2.5 Responsibilities Cyso Managed Hosting Hosting

2.5.1 Cyso Managed Hosting will ensure the availability of the Hosting. Cyso Managed Hosting will on a best effort basis and where influential by Cyso Managed Hosting strive to a further to be indicated availability of the Hosting.

2.5.2 The percentages mentioned in article 2.5.1 are measured over a calendar year. The time for Maintenance on Hosting is not included.

2.5.3 Cyso Managed Hosting does not guarantee, amongst others, that the telephone lines, the Internet and/or other networks will offer optimal access in the event Cyso Managed Hosting depends on third party telecommunication providers for the use and/or provision of the connection.

2.5.4 Cyso Managed Hosting does not have any obligations with regard to availability, reliability, and/or other performance requirements with regard to the telephone lines, the Internet, and/or other networks and the resulting provisions.

2.5.5 Cyso Managed Hosting shall, for as much such can be reasonably expected of it, strive to maintain the connection between the Cyso Network and other networks.

2.5.6 Cyso Managed Hosting will strive to provide all useful and necessary measures to ensure adequate operability and continuity of the Hosting. Cyso Managed Hosting makes use of the in the market most recent and most used virus protection programs.

2.5.7 Cyso Managed Hosting will strive, in accordance with the most current technology available, to provide adequate physical and logical security measures against unauthorized access by third parties to computer systems or computer programs used by Cyso Managed Hosting and/or stored Process-data, in light of the provisions provided for under the agreement.

2.6 Use of Networks

2.6.1 The Customer can make use of networks which are directly and/or indirectly connected with the Cyso Network under the condition that as soon as the Customer provides access to a third party’s network, the Customer shall follow all legal and other conditions, which are application at that moment for the use of that network. It cannot be reasonably expected that Cyso Managed Hosting provide all conditions as indicated in this article. The Customer shall indemnify Cyso Managed Hosting from any claim, accusation, or court procedure which results from the non-compliance with this article.

2.6.2 The Customer shall not cause any disruption in the functioning of the Cyso Network, third party networks, or connections between the networks via (the substance of) data traffic or its actions or failure to act.

2.6.3 If, in the reasonable opinion of Cyso Managed Hosting, a danger exists to the functioning of the Cyso Network and/or the provision of services to clients of Cyso Managed Hosting, such as but not limited to Spam, open relay, port scan, or hacking by the Customer and/or due to the Customer or otherwise, then Cyso managed Hosting can give the Customer instructions which must be followed within the indicated time period.

2.6.4 The Customer is in default, without any notification being required, if the Customer fails to follow the instructions, as indicated in article 2.6.3, and/or if (the substance of) the data traffic or the actions and/or failure to act by the Customer appear to cause a disruption in the functioning of the Cyso Network, third party networks, or connections between these networks. The Customer is liable for all damage of Cyso Managed Hosting as a result here from.

2.6.5 The Customer is explicitly forbidden to carry out Spam activities from and/or via the IP addresses which belong or refer to the Cyso Network. Spamming can result in disconnection.

2.6.6 The Customer is only allowed to send e-mail mailings if these are based on the confirmed opt-in principle. Confirmed opt-in means that the owner of the e-mail address has given explicit consent for the receipt of e-mails by the sender. This consent is given by the owner of the e-mail address after a request by the sender sent after the first registration.

2.6.7 Abuse reports concerning suspected Spam activities from the IP addresses in use by the Customer shall be forwarded to the Customer. The Customer is required, within one Workday, to demonstrate that the abuse report is not the result of Spam activities. A failure to respond to an abuse report can lead to disconnection.

2.7 Browser

2.7.1 The Hosting is accessible by the Customer through a browser. The Hosting has been optimized for the browsers as indicated by Cyso Managed Hosting. The browsers for which the Hosting has been optimized at the moment of entering into the agreement will be made known by Cyso Managed Hosting.

2.7.2 Cyso Managed Hosting is not obligated to keep access to the Hosting optimal through the browsers as mentioned in article 2.7.1. Cyso Managed Hosting is entitled, without any form of (damage) compensation being required, to make changes in the Hosting which may influence the browser used by the Customer and/or advised by Cyso Managed Hosting.

2.7.3 In the event that the situation as described in article 2.7.2 takes place, Cyso Managed Hosting will use all reasonable endeavors to enable the Customer to make a transition to a different browser. The costs incurred by the Customer in doing so are for the account of the Customer.

2.8 Use of Identification Codes

2.8.1 Cyso Managed Hosting will make Identification Codes solely available to the Customer for the use of Products. The Customer will use these Identification Codes with care. The Customer will notify Cyso Managed Hosting in the event of loss, theft and/or other forms of unauthorized use, in order to enable parties to take the proper actions.

2.8.2 The Customer carries all responsibility, liability, and costs related to the use of Identification Codes used and/or distributed by the Customer. In no event will Cyso Managed Hosting be liable for the misuse and/or unauthorized use of Identification Codes.

2.8.3 If there is a reasonable suspicion of misuse or unauthorized use of Identification Codes, Cyso Managed Hosting can provide the Customer with the instructions, which must be carried out. If it is determined that misuse has been made of Identification Codes or if the Customer ignores instructions given as set out in article 2.8.3, the Customer will be immediately in breach.

2.9 Data Traffic From the Customer

2.9.1 Cyso Managed Hosting does not control or have any insight in the data traffic from and/or to the Customer. Cyso Managed Hosting is merely a passive conduit. Cyso Managed Hosting does not give any warranties with regard to content of data such as but not limited to reliability and completeness.

2.9.2 The Customer is responsible for the content of data traffic originating from the Customer. Where applicable the Code of Conduct as set out in article 2.12 will apply to the Customer and its users.

2.9.3 The Customer indemnifies Cyso Managed Hosting from any damage compensation of any claim, accusation, or court procedure from a third party with regard to the (content of) the data traffic or the information originating from the Customer.

2.9.4 In deviation from that which has been agreed upon in article 8, Process-data will remain the (intellectual) property of the Customer. The Customer grants Cyso Managed Hosting, without charge, a perpetual user and revision right of the Process-data. Process-data may only be distributed to a third party if not directly traceable to the Customer, unless such distribution is required by legislation.

2.9.5 Process-data will initially, for the duration of the agreement, be preserved for a maximum period of 3 (three) years. After termination of the agreement Cyso Managed Hosting will no longer be required to preserve Process-data, unless such is required by legislation.

2.9.6 Cyso Managed Hosting will offer cooperation in transferring Process-data and/or other data to another application if requested by the Customer. Cyso Managed Hosting does not warrant that the available Process-data and/or other data during the agreement and/or after the agreement can be transferred to another application.

2.9.7 The Customer is fully responsible for the reliability and completeness of Process-data and/or other data from the moment of transfer of the Process-data and/or other data to another application. All costs connected with the transfer of Process-data and/or other data at the request of the Customer to another application will be fully for the account of the Customer.

2.10 Customer Requirements

2.10.1 In the event the Hosting includes amongst others the hosting of a website for and/or on behalf of the Customer, the Customer must have a domain name provided and registered by an authorized organization in accordance with the Third Party General Conditions. The Customer indemnifies Cyso Managed Hosting from any damage compensation of any claim, accusation, or court procedure with regard to (the use of) the domain name on behalf of and/or by the Customer.

2.10.2 If, via the Hosting, privacy information and/or other information/data are transported or commercial activities and/or other activities are undertaken, the Customer will indemnify Cyso Managed Hosting from all liability, costs, or damage as a result of claims from a third party in the event privacy information and/or other information/data are transported or commercial activities and/or other activities are undertaken in violation of the relevant (privacy) laws and/or guidelines in question.

2.10.3 The Customer will immediately inform Cyso Managed Hosting in writing regarding changes that are relevant for the proper execution of the Hosting. The Customer will follow the instructions given by Cyso Managed Hosting regarding Fair Use. If the Customer fails to follow the instructions given by Cyso Managed Hosting, Cyso Managed Hosting will be entitled through technical means to reduce the overload or in the case of a continuous overload to stop the provision of the Hosting to the Customer.  Cyso Managed Hosting will never be liable for damage of whatever nature that is incurred by the Customer and/or third parties as a result of the measures undertaken by Cyso Managed Hosting.

2.11 Privacy Information

2.11.1 The Customer is the controller (verantwoordelijke) in accordance with the Personal Data Protection Act (Wet bescherming persoonsgegevens) and is therefore responsible for protecting (privacy) information, which is sent and/or processed by the equipment and/or programs of Cyso Managed Hosting on behalf of the Customer.

2.11.2 The Customer will indemnify Cyso Managed Hosting against any allegation as a result of the violation of any person’s privacy.

2.11.3 Where the Customer is authorized, the Customer explicitly agrees with the registration of (privacy) information of users in the privacy registration of Cyso Managed Hosting for administrative and management purposes. The privacy registration will contain, amongst others, Identification Codes and Process-data and will only be accessible for Cyso Managed Hosting. This information will not be provided to third parties unless Cyso Managed Hosting is obligated to do so on the basis of the law or a court order.

2.11.4 In exception to what has been previously stated in article 2.11.1, Cyso Managed Hosting is the processor (bewerker) in accordance with the Personal Data Protection Act (Wet bescherming persoonsgevens) and is therefore responsible for the protection of privacy related information of which its use is necessary by Cyso Managed Hosting for the proper performance of its obligations under the agreement and will indemnify the Customer against allegations of private individuals for a violation of their privacy as a result of an act or failure to act of Cyso Managed Hosting.

2.12 Code of Conduct

2.12.1 The Customer will make use of the Hosting and/or other facilities offered in a responsible manner. It is prohibited to use the Hosting and/or other facilities offered in a manner that will result in:
a) damage in the system of Cyso Managed Hosting and/or third parties;
b) interference with its use.

2.12.2 The Customer will ensure that such damage and/or interference will not be the result of misconfiguration on the Customer’s part.

2.12.3 It is not permitted to use the Hosting and/or facilities offered for activities that are illegal and/or in violation of the agreement. The foregoing includes amongst others the following activities:

  1. all acts and actions as indicated at http://www.cyso.co.uk/cyso/legal/abuse/
  2. the violation of a third parties rights or making it possible to violate third party rights, such as but not limited to intellectual property rights and privacy rights;
  3. the noncompliance to law and other applicable regulations; 
  4. Spam activities, see further article http://www.cyso.co.uk/cyso/legal/abuse/;
  5. storage/distribution of (child) pornography;
  6. sexual intimidation, racial prejudice, and/or the harassment of individuals in any other manner;
  7. distribution or the making available to third parties of obscene, insulting and tormenting material, and/or other material of similar nature;
  8. threats;
  9. storage and distribution of viruses, worms, and/or other destructive activities;
  10. unauthorized access (hacking) of accounts, systems, and/or networks of third parties and/or Cyso Managed Hosting and/or the performance or non-performance that make hacking possible.

2.12.4 Cyso Managed Hosting reserves the right, at its own discretion, if forced by law or a court order and/or a third party informs Cyso Managed Hosting and/or a suspicion exists that through the Hosting a violation is made of the rights of a third party, there is a breach of the General Conditions Cyso Managed Hosting and/or the agreement and the resulting obligations in question have not been met wholly or partially, to stop access to the Hosting and/or other facilities offered, to remove the information in question and/or suspend its other obligations, this until the obligations have been met. The requirement to pay owed amounts remains during the non-availability. If the Customer, within a term as indicated by Cyso Managed Hosting, fulfills its obligations and makes payment of € 100,- (excluduing VAT), the availability will be restored.

2.12.5 Cyso Managed Hosting and/or third parties will never be liable for damages of whatever nature suffered by the Customer and/or third parties for measures taken by and/or on behalf of Cyso Managed Hosting on the basis of article 2.12.4. Payment obligations will remain in effect during the time period in which measures are undertaken by and/or on behalf of Cyso Managed Hosting on the basis of article 2.12.4.

2.12.6 If the actions and/or failure to act of the Customer justifies this and/or the actions and/or failure to act of the Customer continues regardless of the measures under taken by Cyso Managed Hosting, as set out in article 2.12.4, Cyso Managed Hosting will be entitled in accordance with article 1.3.3 to terminate the agreement, without any damage compensation or restitution of monies paid being required.

2.13 Consequences of termination

2.13.1 In the event that the agreement is terminated, for whatever reason:

  1. Cyso Managed Hosting shall, directly after termination of the agreement, invalidate and/collect the Identification Codes, address information and/or codes
  2. Cyso Managed Hosting shall, one month after the termination of the agreement, transfer to the Customer the domain name(s) registered by Cyso Managed Hosting on behalf of the Customer or make these unavailable for use;
  3. Cyso Managed Hosting can charge the Customer reasonable termination costs.

3. ASP-SERVICE

3.1 User Rights Application Software

3.1.1 Cyso Managed Hosting hereby grants the Customer the non-exclusive right to use the Application Software via the Hosting and corresponding documentation.

3.1.2 User rights are limited exclusively to own use of the Application Software for the agreed upon processors and number of users. If nothing is agreed upon, user rights will be limited to the processor on which the Application Software was first installed and the number of users will be limited to 1 (one).

3.1.3 User rights for the Application Software are limited to the Object Code. Rights to the Source Code are not provided, unless explicitly agreed upon otherwise in writing.

3.1.4 It is prohibited for the Customer directly or indirectly (through a third party) to copy, duplicate or alter the Application Software in any way, without the prior written approval from Cyso Managed Hosting.

3.1.5 User rights on the Application Software cannot be transferred to any third party (third parties also include holding, sister and/or subsidiary companies).

3.1.6 The Customer does not have the right to make the Application Software available, under any title or in any way whatsoever, to any third party (third parties also include holding, sister and/or subsidiary companies).

3.1.7 Reverse engineering or decompilation of the Application Software is not permitted by the Customer, unless such is explicitly permitted by law.

3.1.8 The user rights shall go into effect after the Customer has made the required payments and fulfilled its other obligations.

3.1.9 The extent of the user rights on Third Party Products is determined by the Third Party General Conditions as described in article 5. Where the foregoing does not deviate from the Third Party General Conditions, the foregoing will also be applicable.

3.2 Verification

3.2.1 Cyso Managed Hosting is entitled to incorporate technical limitations and control mechanisms in the Products in order to prevent and/or verify that the actual number of users does not surpass the agreed upon number of users.

3.2.2 Cyso Managed Hosting is entitled itself or through the use of a third party, as long as the Customer makes use of the Application Software, to make unannounced verification visits to the locations where the Application Software is used. The Customer shall provide all necessary cooperation and access. In the event the Customer refuses cooperation and/or access, Cyso Managed Hosting will be entitled to terminate the agreement immediately.  In this event the Customer will no longer be entitled to use the Products.

3.2.3 If, on the basis of the above described verification procedure or otherwise, it appears that the actual number of users surpasses the number of users agreed upon, the Customer will be obligated to immediately acquire the missing number of user licenses and pay an additional fine of 25% over the amount due.  Amounts indebted for the missing user licenses will be charged from the moment of delivery of the earlier agreed upon number of users.

3.3 Maintenance on Application Software

3.3.1 Cyso Managed Hosting will inform the Customer prior to the commencement of intended Maintenance on Application Software, if this Maintenance on Application Software will lead to problems with regard to gaining access to the Application Software or the non-availability of the Application Software. In this case Maintenance on Application Software will take place from 00.00 until 07.00 hours (CET). Other Maintenance on Application Software will take place during Workdays.

3.3.2 Maintenance on Application Software includes providing and installing updates, including documentation, of the licensed Application Software delivered to the Customer, which either contain a qualitative (e.g. Error fix) or a functional improvement. Cyso Managed Hosting is not obliged to actively keep the Customer up to date concerning possible updates.

3.3.3 If Maintenance on Application Software results in a functional improvement, Cyso Managed Hosting will have the right to charge extra payment to compensate for this functional improvement.

3.3.4 Cyso Managed Hosting is authorized to refuse the provision of Maintenance on Application Software if the Products provided by Cyso Managed Hosting or the environment in which the Products operate are altered by the Customer in any way or form.

3.3.5 If the Customer refuses Maintenance on Application Software, Cyso Managed Hosting reserves the right to terminate the agreement or to adjust the agreement in accordance with this refusal.

3.4 Requirements Cyso Managed Hosting

3.4.1 Cyso Managed Hosting will ensure the availability of the Application Software. Cyso Managed Hosting will on a best effort basis and where influential by Cyso Managed Hosting strive to a further to be indicated availability of the Application Software.

3.4.2 The percentages mentioned in article 3.4.1 are measured over a calendar year. The time for Maintenance on Application Software is not included.

4. CYSO MANAGED HOSTING ADDITIONAL PRODUCTS

4.1 Maintenance

4.1.1 Cyso Managed Hosting offers the Customer, depending on the Products delivered, the option of acquiring or the obligation to acquire Maintenance.

4.1.2 Maintenance on the Products is based on a periodic Advance and against further to be specified terms and conditions. Where these further to be specified terms and conditions do not deviate from these General Conditions Cyso Managed Hosting, the General Conditions Cyso Managed Hosting will be applicable.

4.2 Advice

4.2.1 All Products that can be considered advice or which can be described as advisory character will only be given to the best of Cyso Managed Hosting’s knowledge and capability.

4.2.2 Cyso Managed Hosting is not responsible and/or liable if the activities that flow forth from the advice result in a failure to carry out a project for the Customer within allocated budgets, time schedules, and other agreed upon conditions.

4.2.3 Cyso Managed Hosting will provide advice on the basis of the conditions required by Cyso Managed Hosting and information received from the Customer as mentioned in article 1.4. If it appears that not all relevant information has been received and/or other problems and/or insights may arise, such as but not limited to incompatibility problems (products are unable to interoperate with each other), the given advice may be adjusted to the new circumstances.

4.3 Support  

4.3.1 Support consists of providing verbal (telephonic) and written (e-mail) advice concerning the use and operation of Products, such as Hosting and the ASP-service. Support is initially based on a periodic Advance. If the number of hours entitled to are exceeded, the applicable hourly rate will be charged.

4.3.2 Cyso Managed Hosting will only provide Support on the most current updates of the Application Software. Cyso Managed Hosting is entitled at its sole discretion to provide Support on older versions, releases, etc. of the Application Software. 

4.4 Additional Work

4.4.1 If in the opinion of Cyso Managed Hosting, a change request by the Customer is in fact a request for additional work, Cyso Managed Hosting will notify the Customer thereof prior to performing additional work. Upon request by the Customer, the notification will be followed by a specification of the price and additional conditions. The Customer will decide as soon as possible whether to carry out the additional work.

4.4.2 It will be assumed that the Customer has agreed to the performance of additional work and the connected costs, if the Customer has allowed additional work to take place without raising objections in writing prior to the commencement of additional work.

4.5 Installation and Implementation

4.5.1 Cyso Managed Hosting will install and/or implement the Products or have them installed and/or implemented, unless agreed upon otherwise in writing. 

4.5.2 Prior to installation and/or implementation Cyso Managed Hosting will see to it, at the Customer’s expense, that all conditions required by Cyso Managed Hosting have been met in order to ensure a successful installation and/or implementation.

4.5.3 The Customer will ensure and is entirely responsible for obtaining the necessary Third Party General Conditions in order to let installation and/or implementation take place legally.

4.5.4 If, due to the Customer’s fault, implementation and/or installation has not been performed within the agreed upon time schedule, the Customer will make payments as if implementation and/or installation has been performed, undiminished the obligations of Cyso Managed Hosting to proceed with installation and/or implementation at a later time period.

4.6 Back-ups

4.6.1 For as far as possible the Customer is responsible for the timely making of Back-ups of Process-data. Cyso Managed Hosting will upon request inform the Customer of the procedures and security measures necessary regarding data and the realization of Back-ups of Process-data.

4.6.2 If it is not possible for the Customer to make Back-ups of Process-data (and it is possible for Cyso Managed Hosting to make Back-ups of Process-data) or if it is agreed upon that Cyso Managed Hosting will provide partially or entirely for the provision of Back-ups of Process-data, Cyso Managed Hosting will make the Back-ups of Process-data. In no event, will Cyso Managed Hosting be liable for these Back-ups of Process-data for so far as but not limited to the complete or partial loss of these Back-ups of Process-data and/or errors in the Back-ups in the Process-data.

4.7 Activities

4.7.1 Any activities will take place without interruption on Workdays and under normal working conditions.

4.7.2 Activities that are performed outside of Workdays are considered as overtime. The applicable rate will be increased with 50% for overtime after or before Workdays. The applicable rate will be increased with 100% for overtime on weekends and public holidays.

4.7.3 If it is agreed upon that activities will take place in phases, Cyso Managed Hosting will be entitled to postpone activities that belong to the next phase until the Customer has accepted in writing activities performed in the previous phase.

4.7.4 Only if agreed upon explicitly in writing will Cyso Managed Hosting be obligated when performing activities to follow timely and reasonable instructions given. Cyso Managed Hosting is not obligated to follow instructions that will alter the content or scope of the agreed upon activities. In the event such instructions are followed, the activities performed will be charged on the basis of Subsequent Calculation. 

4.7.5 Cyso Managed Hosting is entitled, without the explicit consent of the Customer, to make use of third parties when performing activities.

4.7.6 After the Customer has notified Cyso Managed Hosting of a problem in writing, electronic format, or by telephone, Cyso Managed Hosting will take the necessary steps which will lead to or could lead to a solution.

5. THIRD PARTY PRODUCTS

5.1 Third Party Products

5.1.1 Cyso Managed Hosting has the right to deliver Third Party Products or make use of Third Party Products in fulfilling its obligations that may flow forth from the agreement. Cyso Managed Hosting is not responsible for Third Party Products, unless agreed upon otherwise in writing.

5.1.2 If Cyso Managed Hosting delivers Third Party Products to the Customer, the Third Party General Conditions will be applicable to the agreement in addition to these General Conditions Cyso Managed Hosting.

5.1.3 Cyso Managed Hosting will deliver rights regarding Third Party Products under the same conditions as given in the Third Party General Conditions.

5.1.4 No Maintenance, Support, or other services will be carried out by Cyso Managed Hosting on Third Party Products, unless agreed upon otherwise in writing.

5.1.5 With regard to Third Party Products delivered, Cyso Managed Hosting will provide:

  1. Service under, at most, the same conditions as provided for in the Third Party General Conditions.
  2. The warranty under the same terms and conditions as given in the Third Party General Conditions.

5.1.6 Repair on Third Party Products:

  1. Under no circumstances will Third Party Products be replaced unless the Customer makes an explicit request and pays all connected costs as an Advance.
  2. Operational costs will be applicable on all repairs. In the event that repairs take place outside of Cyso Managed Hosting’s office, a compensation for travel and waiting time and other connected costs will be charged.

5.2 Third Party General Conditions

5.2.1 Third Party General Conditions that are declared applicable in these General Conditions Cyso Managed Hosting shall, when available to Cyso Managed Hosting, only be provided on request. Third Party General Conditions will be delivered in the same format and language as received by Cyso Managed Hosting.

5.2.2 The General Conditions Cyso Managed Hosting have priority over Third Party General Conditions unless indicated otherwise. When there is a conflict between these General Conditions Cyso Managed Hosting and Third Party General Conditions, Cyso Managed Hosting has the right to declare the conflicting terms of the Third Party General Conditions non-applicable or applicable.

6. DELIVERY

6.1 (Delivery) Dates

6.1.1 All (delivery) dates which may be named by and may be applicable to Cyso Managed Hosting are determined to the best of Cyso Managed Hosting’s knowledge on the basis of information made known to Cyso Managed Hosting and will be taken into consideration as much as possible.

6.1.2 (Delivery) dates shall therefore not be considered to be absolute (delivery) dates within which must be delivered, but a time period within which Cyso Managed Hosting shall strive with best efforts to deliver the agreed upon items. If it is not possible to keep to the (delivery) date, then Cyso Managed Hosting and the Customer will consult with each other to agree on a substitute (delivery) date.

6.1.3 Exceeding a given (delivery) date which may be applicable never constitutes an attributable shortcoming by Cyso Managed Hosting. Cyso Managed Hosting does not accept liability under any circumstances in cases where the (delivery) date may be exceeded.

6.2 Reservations

6.2.1 Cyso Managed Hosting shall commence execution of the agreement between Cyso Managed Hosting and the Customer only after having received full and timely payment of all amounts due. Should Cyso Managed Hosting commence execution of the agreement prior to receiving full and timely payment of all amounts due, Cyso Managed Hosting reserves the right to suspend execution of the agreement pending full and timely payment of all amounts due.

6.2.2 If the Customer fabricates a new product, on the basis of the Products delivered by Cyso Managed Hosting, this will be done on behalf of Cyso Managed Hosting and the Customer will keep the new product for Cyso Managed Hosting until all amounts due on the basis of the agreement have been fully and timely paid. Cyso Managed Hosting will maintain all the rights as owner of the new product until the moment payments have been fully and timely made.

6.2.3 Upon the first request of Cyso Managed Hosting, the Customer shall provide, and where necessary register, a nonpossessory pledge on all goods delivered by Cyso Managed Hosting to the Customer and/or the Customer’s goods that are necessary for the delivery of the Cyso Managed Hosting Products to the Customer as security for all existing and future claims from Cyso Managed Hosting, for whatever reason. This nonpossessory pledge is retained and placed by Cyso Managed Hosting on the Customer’s server(s) which are placed in the Data Center as part of the Colocation Hosting.

6.3 Suspension

6.3.1 The Customer’s rights, such as but not limited to the transfer of Products, are provided under the suspended condition that the Customer fully and timely pays the agreed compensations. In case of failure to pay, Customer must return the Products to Cyso Managed Hosting at the Customer’s expense within one week of receiving the instruction from Cyso Managed Hosting to do so. All other remedies in law remain applicable.

6.3.2 Cyso Managed Hosting reserves the right if the Customer fails to perform any obligation in the General Conditions Cyso Managed Hosting and/or the agreement and such failure justifies a suspension to temporarily make Products, partially or completely, unavailable and/or to seriously limit the use thereof. Payment obligations will remain in effect during the suspension period.

6.3.3 If the Customer, within a term as indicated by Cyso Managed Hosting, fulfills its obligations and makes payment of the amount fixed for reconnection and/or availability, the connection and/or availability of the Hosting will be restored. 

6.4 Risk

6.4.1 From the moment of delivery the Customer will bear the risk of the Products delivered even if possible ownership and user rights have not yet been transferred. As a result the Customer will be held accountable for full payment of the Products delivered regardless of the situation that the Products delivered have perished or that their value has declined due to circumstances for which Cyso Managed Hosting cannot be held accountable.

6.4.2 The aforementioned will also be applicable from the moment in which the Customer does not make it possible for Cyso Managed Hosting to make a delivery.

6.5 Delivery, Installation and Acceptance Procedure

6.5.1 Cyso Managed Hosting shall deliver and install the Products in accordance with the specifications established in writing by Cyso Managed Hosting.

6.5.2 Delivery of the Products takes place when they are made available to the Customer at Cyso Managed Hosting’s warehouse. The costs for transport and possible insurance are for the account of the Customer. The manner in which transport takes place is determined by Cyso Managed Hosting and insurance of the Products by Cyso Managed Hosting will not take place unless agreed upon otherwise in writing. 

6.5.3 The delivery of services by or through Cyso Managed Hosting takes place at the place and time that the services are performed.

6.5.4 Only in cases where installation is carried out by Cyso Managed Hosting will there be an acceptance period immediately following completion of the installation. The acceptance period for the Customer runs for 14 (fourteen) days following completion of the installation. During the acceptance period, the Customer is not permitted to use the Products for production and/or operational purposes.

6.5.5 The Products shall be considered by both parties as accepted:

  1. at delivery when the installation is not carried out by Cyso Managed Hosting, or
  2. when Cyso Managed Hosting has completed the installation: on the first day following the acceptance period, or
  3. when Cyso Managed Hosting, before the end of the acceptance period, receives a Test Report (article 6.6): at the moment that the Errors (article 6.7) identified in that Test Report have been repaired, notwithstanding the presence of small Errors which according to article 6.7.4 do not hinder acceptance.

6.5.6 If the Products are delivered in phases, and/or parts are delivered and tested, the non-acceptance of a particular phase and/or part will not delay the acceptance of an earlier phase and/or another part.

6.5.7 In deviation to the previous, the Products shall be considered as accepted from the beginning of use when the Customer uses the Products in any manner before the moment of acceptance for productive or operational purposes.

6.6 Test Report

6.6.1 If it becomes apparent during the acceptance period that the Products contain Errors, as described in article 6.7, which hinder the progress of the acceptance test, the Customer shall inform Cyso Managed Hosting no later than the last day of the acceptance period in a written and as detailed as possible Test Report of the Errors, in which case the still remaining acceptance period will be interrupted until such time as the Product is so modified that the Errors are removed.

6.7 Errors

6.7.1 Error(s) means the failure to fulfill the functional specifications set down in writing by Cyso Managed Hosting. An Error only exists where such can be demonstrated and reproduced. The Customer is required to immediately report possible Errors to Cyso Managed Hosting.

6.7.2 Every right to repair of Errors lapses if the Products provided by Cyso Managed Hosting are altered in any way or form.

6.7.3 The repair of Errors shall take place at the location to be determined by Cyso Managed Hosting. Cyso Managed Hosting is entitled to install temporary solutions, emergency solutions, detours, and/or other problem-avoiding restrictions in the Products.

6.7.4 Acceptance of the Products may not be withheld on grounds other than those which are related to specifications which have been expressly agreed upon between the parties nor, furthermore, due to the presence of small Errors which do not reasonably impede putting the Products into productive or operational use.

6.8 Replacement Performance

6.8.1 Cyso Managed Hosting is permitted to deliver alternative Products than those Products ordered by the Customer if the performance and operation of such alternative Products is essentially no different from the Products ordered.

6.8.2 If the agreement is concluded with the objective of having activities carried out by a particular individual, Cyso Managed Hosting will be entitled to replace this person with another person with the same qualifications.

6.9 Warranty

6.9.1 Maintenance on Hosting and/or Maintenance on the Application Service or ASP-service does not cover the reconstruction and/or repair of mutilated and/or lost data and/or information. Cyso Managed Hosting does not warrant that the Products shall function without interruption or without Errors, are suitable for every intended use of the Customer and/or will lead to results desired by the Customer. The warranty obligation is void if the Customer alters the Products, or has them altered, without the written permission of Cyso Managed Hosting.

6.9.2 The warranty provided on Third Party Products is limited to the Third Party General Conditions as maintained by the supplier of Third Party Products as described in article 5.

6.9.3 Cyso Managed Hosting is entitled to invoice its usual prices and the costs for repair, modification, or replacement of the Products if the Error may be said to be caused by mistakes made by the Customer as a result of improper and non-careful use by the Customer, the result of other causes that may not be attributed to Cyso Managed Hosting or if the Customer could have reasonably detected the Error during the acceptance period.

7. PRICES/PAYMENTS

7.1 Prices and Payments

7.1.1 All prices exclude VAT and other levies imposed by the government. The amounts invoiced to the Customer will include applicable VAT and other levies possibly imposed by the government.

7.1.2 Cyso Managed Hosting always has the right to change the amount of the agreed upon prices and associated costs, such as but not limited to, price changes of Third Party Products and price increases as a result of changed and new laws and other legislation. A price increase shall be valid 30 days after the Customer is notified of such. If the Customer does not agree with a price change as notified by Cyso Managed Hosting, the Customer has the right to terminate the agreement within 14 days of the date of the notification indicated in this article which termination shall be valid as from the date the price or tariff increase would become applicable.

7.1.3 Cyso Managed Hosting will invoice the amount owed by the Customer by provision of an invoice which is appropriately itemized. Dependent on the type of contract, the Customer will pay all amounts via direct debit or other manner within 14 (fourteen) or 30 (thirty) days of the invoice date. These payments will not be subject to compensation or deduction other than when permitted by law. The moment of receipt of the owed amount by Cyso Managed Hosting shall be considered as the moment of payment.

7.1.4 Should the Customer fail to fulfill any obligation, the Customer is in breach without any further notification of breach being required. Cyso Managed Hosting reserves the right to charge all incurred costs to the Customer, including judicial and extra-judicial expenses, with regard to the collection of debts from the Customer. Extra-judicial collection costs amount to 15% of the debt, with a minimum of Euro 500,- (five hundred). In any case the Customer will be charged interest on a monthly basis, at the legal percentage rate, on all outstanding debts starting from the date of failure to pay.

7.1.5 Until full payment has been made, Cyso Managed Hosting has the right to suspend all services and obligations to the Customer. The Customer’s obligation to meet the Customer’s commitments remains unchanged.

7.1.6 If Cyso Managed Hosting is unable to make a delivery in time due to the Customer, Cyso Managed Hosting will have the right to charge a 1,5% interest reimbursement on a monthly basis over the indebted amount.

7.1.7 Compensation for Maintenance, Support, and any other annual or periodic amounts are due as an Advance at the moment of realization of the agreement between the parties and shall be billed to the Customer, appropriately itemized prior to each year or other period that the agreement between parties continues.

7.1.8 The indebted amount in article 7.1.1 may be increased with order costs, postage costs, and costs of third parties. An increase can also take place in the event that activities have to take place outside of Cyso Managed Hosting’s office. In the event that activities need to take place outside of Cyso Managed Hosting’s office, hourly rates, travel and waiting time compensations, actual travel and/or kilometer compensation, hotel expenses, and any other costs connected to such services will be charged. The travel and waiting time compensation amounts to 50% of the current hourly rate. The means of transportation will be determined by Cyso Managed Hosting. The foregoing is also applicable on services provided outside of The Netherlands.

7.1.9 Above mentioned paragraphs leave all the legal rights of Cyso Managed Hosting unhindered, when the Customer fails to meet the Customer’s commitments.

7.2 Price Changes

7.2.1 The prices agreed to between Cyso Managed Hosting and the Customer are among other things based on the costs of salaries, social premiums, materials, and travel and accommodation costs, etc., as well as the rate of exchange between the currencies as applicable at the time of closing of the agreement. Cyso Managed Hosting is authorized, in case of changes to one or more of the cost items and/or changes in the rate of exchange, to adjust the prices to these changes.

7.2.2 Cyso Managed Hosting will offer the Customer the possibility to become acquainted with possible changes in prices. If the Customer does not agree with a price change, the Customer will only be permitted to terminate the agreement from the date the change in price becomes applicable, if the total price increase during 1 (one) year exceeds the yearly inflation rate of the current year (or previous year for price increases announced for the next year) as published by the CBS (Dutch Bureau for Statistics) by 5%.

7.3 Fixed Price

7.3.1 In the case of a Fixed Price agreement, activities will be performed on the basis of a prior agreed upon price.

7.3.2 Unless Cyso Managed Hosting can appeal to article 1.4.4 extra hours will not be charged.

7.4 Subsequent Calculation

7.4.1 When charges are to be based on Subsequent Calculation, this means that prior to Cyso Managed Hosting commencing the agreed upon activities a global estimate can be made of the expected costs. On conclusion of the activities carried out, all costs actually incurred related to the activities will be calculated and charged. The Customer is, then, aware that there is a possibility that the estimate made earlier could be lower than the costs actually incurred. If no agreements have been made regarding billing, activities will be performed on the basis of Subsequent Calculation.

7.5 Advance

7.5.1 Cyso Managed Hosting has the right to charge payments in Advance. If full payment of the Advance is not made, Cyso Managed Hosting has the right, undiminished its other rights that may flow forth from the agreement, to suspend all its obligations and all amounts owed by the Customer will be immediately due.

7.6 Payment schedule

7.6.1 Unless agreed upon otherwise, the following payment schedule will apply to the Customer:

  1. First term, 30% of the amount due will be paid as an Advance;
  2. Second term, 40% of the amount due will be paid in equal parts on a monthly basis between the moment of entering into the agreement and the expected delivery date of the Product;
  3. Third term, 30% or the remainder of the amount due will be paid immediately after acceptance.

8. INTELLECTUAL PROPERTY RIGHTS

8.1 Rights of the Customer and Cyso Managed Hosting

8.1.1 Cyso Managed Hosting has the exclusive right to further develop the Cyso Managed Hosting Products and place them at the disposal of third parties by means of licenses.

8.1.2 Except where Third Party Products are concerned, all intellectual property rights, industrial property rights and other rights resulting from all activities carried out by Cyso Managed Hosting, regardless of where and when carried out and regardless of whether it concerns the delivery of an existing Product or a still-to-be-developed Product, reside with Cyso Managed Hosting.

8.1.3 The Customer acknowledges that all present and future intellectual property rights, industrial property rights, other rights and the registration and/or application of the foregoing rights and/or similar rights for the whole term thereof and all renewals or extensions thereof, now or at any time in the future worldwide at all times shall be and are hereby assigned or will be transferred to Cyso Managed Hosting.

8.1.4 The Customer is not permitted to remove or alter any designation concerning intellectual property rights, industrial property rights, other rights, trademarks, and trade names from the Products, or to have such changes made by third parties.

8.1.5 The intellectual property rights, industrial property rights, or other rights of a Product, or a part thereof, can only be transferred to the Customer by means of a written deed, if Cyso Managed Hosting has these rights.

8.1.6 In the event that Cyso Managed Hosting, the Customer or a third party makes functional improvements or other adjustments in the Products the intellectual property rights, industrial property rights and other rights vested in the improved or adjusted Product will remain unchanged with Cyso Managed Hosting or the rightful third party. If the above mentioned rights do not belong to Cyso Managed Hosting or the rightful third party, the Customer will cooperate in transferring the above mentioned rights to Cyso Managed Hosting or the rightful third party.

8.1.7 All intellectual property rights, industrial property rights, or other rights of Course material and/or other documentation will remain with Cyso Managed Hosting. The Customer is explicitly not permitted to duplicate and/or transfer such to a third party for permanent or temporary use. The Customer will ensure that its employees and/or third parties will comply with the foregoing obligation.

8.2 Indemnification

8.2.1 Cyso Managed Hosting shall protect the Customer from any allegation to the effect that the Cyso Managed Hosting Products violate a copyright valid in The Netherlands. Cyso Managed Hosting shall pay the damages, expenses, and court costs that the Customer is ordered to pay by the final court ruling, provided that the Customer:

  1. notifies Cyso Managed Hosting immediately, but no later than within 10 (ten) days, after the Customer becomes aware of the infringement or could have become aware of the infringement, in writing of the existence of the allegation of infringement; and
  2. gives the case completely over to Cyso Managed Hosting, including all negotiations and arrangements that might lead to a settlement.

In case of any such allegation or possible allegation, Cyso Managed Hosting reserves the right to obtain a license or sub?license on the Cyso Managed Hosting Product in question or to change or replace the Cyso Managed Hosting Product in such a way that the Cyso Managed Hosting Product will no longer infringe a copyright valid in The Netherlands. If, at Cyso Managed Hosting’s sole judgment, the foregoing remedies are not a reasonable option, Cyso Managed Hosting has the right to take the delivered Cyso Managed Hosting Product back against reimbursement of payments made for the Cyso Managed Hosting Product in question, minus a reasonable compensation for having made use of the Cyso Managed Hosting Product.

8.2.2 Cyso Managed Hosting shall not indemnify the Customer against an action in the event that:

  1. such is based on the fact that the Third Party Products provided to the Customer violate an intellectual property right, industrial property right or other right valid in the Netherlands or elsewhere;
  2. what is provided by the Customer is part of or is delivered in conjunction with a Product and this combination results in a violation of an intellectual property right, industrial property right, or other right valid in the Netherlands or elsewhere;
  3. The Customer has made a change in or to the Product.

8.2.3 If Cyso Managed Hosting and the Customer agree that the intellectual property rights, industrial property rights, or any other rights of a Cyso Managed Hosting Product, or a part thereof, shall be transferred to the Customer, the Customer will indemnify Cyso Managed Hosting against any action insofar as such is based on the fact that the Product, or a part thereof, violates an intellectual property right, industrial property right or any other right belonging to a third party.

9. CONCLUSION

9.1 Concluding paragraph

9.1.1 Thank you for taking time to read the General Conditions Cyso Managed Hosting. We have drafted these for the protection of each other’s interest, but if you would still like a few changes to be made, because you think that your interests or our interests are not well protected, then we propose to make these changes in another document, such as a proposal.