Introduction

These Terms & Conditions apply to all services and products supplied by or on behalf of Aqua Platform.

Definitions

Supplier is understood to mean Aqua Platform BV, based in Jonkersvaart, The Netherlands.

Product is understood to mean the materials or goods supplied by Supplier.

Service is understood to mean each activity carried out by Supplier that does not resort under the description of Product.

Client is understood to mean the natural person or legal entity who purchases a Product or Service from Supplier.

Agreement is understood to mean an arrangement between Supplier and Client pertaining to the supply of Products and/or Services by Supplier to Client. The Agreement contains specific arrangements on the provision of services and products and constitutes one entity with these Terms & Conditions.

Hosting is understood to mean the provisioning of electronic and digital facilities for the benefit of websites, computer systems, computer software, storage of data, and other applications. Among other things, hosting can consist of making available computer processing capacity, storage space for programs and data, connections between the computer equipment being used and the internet, data transfer, power supply including emergency power, monitoring of availability and stability of the systems used, etc. Hosting is also understood to mean the implementation of activities in order to support the primary service, including maintenance on hardware, software and other systems, arranging for back-ups and monitoring continuity, as well as providing answers to questions with regard to the use of the Hosting services.

A Hosting Account consists of all technical facilities and corresponding supportive activities as made available to a Client by Supplier for the benefit of Hosting.

Applicability of these Terms & Conditions

These Terms & Conditions apply to all offers, tenders, Contracts, Products and Services from Supplier, and to all other actions and activities carried out by Supplier.

By entering into an Agreement with the Supplier, the Client declares to have been informed about these Terms & Conditions, as well as that the Client agrees with these Conditions.

By entering into an Agreement with the Supplier, the Client expressly declares that purchasing or any other conditions of the Client do not apply to the Agreement.

If any provision from these Terms & Conditions should be or become void, then the other provisions of these Terms & Conditions shall remain fully in force. Supplier and Client shall in such a situation immediately enter into consultations in order to agree on new provisions replacing the provision that are or have become void, whereby the objective and meaning thereof will be taken into account as much as possible.

The Agreement will take precedence over these Terms & Conditions in case there is a conflict between the Agreement and these Terms & Conditions. Arrangements that are agreed in addition to, or conflict with these Terms & Conditions should be recorded in writing in the Agreement, and signed by the Client and the Supplier.

Supplier is always authorised to modify these Terms & Conditions. Modifications will come into force 28 days after the Client has been informed about them. If Client does not agree with all or part of the modifications, he is entitled to annul the Agreement as per the date of the modified conditions coming into force.

These Terms & Conditions version 1.0.0 come into force per January 15, 2015.

Agreements

Materialisation of an Agreement

All offers and tenders of Supplier are free of obligations, unless explicitly stated otherwise in the offer or the tender. A formulated tender does not oblige Supplier to supply a part thereof against a corresponding part of the price offered.

The Supplier can state a period of validity for each offer or tender. If no period of validity is stated, a period of validity of 21 days shall be assumed.

After acceptance of the offer by Client, immediate revocation by Supplier is possible. In case of revocation the Agreement does not materialise and Supplier is therefore obliged to repay all payments that have already been received from Client. Supplier can refuse a prospect Client for reasons of its own.

An Agreement can materialise in two ways:

• if the Client confirms the offer or tender in writing, per e-mail, or in way to be specified further;
• if the Client confirms the offer or tender in writing, per e-mail, or in way to be specified further;
• if the client starts using or purchasing the Product or Service from the offer or tender. In the latter case the Supplier shall send a confirmation of the materialisation of the Agreement to client in writing or per e-mail.

Client herewith authorises Supplier to include his or her personal data in a personal register, in as far as necessary for the implementation of and compliance with the Agreement. This personal register is only accessible for Supplier and shall not be made available to third parties, unless Supplier is obliged to do so by virtue of the Law or a judicial verdict.

Duration of an Agreement

The Agreement is entered into for the term as determined in the Agreement, or the term that is stated in the offer and/or the Supplemental Terms & Conditions for the respective Product/Service. If both the Agreement and the Supplemental Terms & Conditions do not state provisions with regard to the duration of the Agreement, then a term of one (1) year automatically applies.

Renewal of an Agreement

An Agreement shall be renewed in accordance with the arrangements established thereto in the Agreement. If both the Agreement and the Terms & Conditions do not contain provisions with regard to renewals, then the Agreement is tacitly renewed with a period equal to the period that ends at that time.

Cancellation of an Agreement

Both the Supplier and the Client are entitled to cancel an Agreement with due regard of the cancellation term agreed to in the Agreement. If the Agreement does not contain provisions with regard to the cancellation term, a period of two (2) weeks applies in case of short-term Agreements (shorter than 3 months), and a period of one (1) month applies in case of long-term Agreements (3 months or longer).

Both the Supplier and the Client are entitled to immediately cancel an Agreement if:

• the counterparty has (temporarily) filed for postponement of payment or this has been granted to him;
• the counterparty is in state of bankruptcy or a claim for bankruptcy has been filed against him;
• the company of the counterparty is liquidated;
• the activities of the counterparty have factually ceased to exist;
• the counterparty is in default.

Implementation of an Agreement

Information obligation and collaboration

The Client obliges himself to provide the Supplier with all necessary data that the Supplier needs in order to be able to supply the Product or carry out the Service. The Supplier obliges himself to explicitly indicate as soon as possible which information is needed and to offer and/or start using a suitable communication channel for the respective information.

If he Supplier depends on the collaboration of the Client for the supply of the product and/or carrying out the Service then Client obliges himself to provide the necessary collaboration. The Supplier obliges himself to explicitly indicate as soon as possible what the collaboration should consist of.

The Client is aware that when the necessary information from and/or collaboration by the Client is lacking this can result in a delay of the supply of the Product and/or carrying out the Service. If the occasion arises, the Supplier shall inform the Client on this.

Confidentiality

Both parties are obliged to confidentiality towards third parties with regard to data of a confidential nature in whichever form, unless prior permission has been granted for this, or when this data within reason can be regarded as non-confidential, or if the counterparty has published this data in any way by itself. If one of the parties is obliged by virtue of the Law or a judicial verdict to provide data on the counterparty to government authorities or to agencies appointed to that means by the authorities, the confidentiality obligation for that specific situation lapses.

Supplier shall treat data from or on Suppliers, Agreements, and Products and Services supplied with due diligence. Data is not provided to third parties. Data is not made available to government agencies unless a legal obligation or a judicial measure exists to that means.

Supplier shall register and keep information on the Client, including personal data on representatives of the Client, only when this is needed for the execution of activities within the framework of the Agreements entered into in this respect.

Transfer of Agreement

Neither Party may transfer the Agreement to a third party, without permission from the other Party. If permission for the transfer of the Agreement to a third party is requested, permission will not be withheld unless the other party has a reasonable objection. A transfer of the Agreement to a third party must be requested at least 28days in advance, unless the Parties mutually agree on a shorter term.

Use of a Product and/or Service

The Client is not permitted to use a Product and/or Service for actions or activities which violate the Law, good manners, public order, or these Terms & Conditions.

Warranty, Liability, and Force Majeure

Warranty

Supplier will always act as a diligent service provider in order to make the agreed Hosting Account available and see to the correct and continuous availability thereof.

Client should ascertain before entering into an Agreement that the Product and/or the Service the Supplier offers is suited for the objective intended by Client.

Supplier guarantees the quality and/or suitability of supplied Products and Services for the application as described by the Supplier.

Supplier can however not guarantee unlimited permanent availability, since besides the systems and connections of Supplier, systems and connections of Client and of third parties will also be used.

Supplier is obliged to regularly check the use, the availability, the reliability, and the processing speed of the Hosting Account, and to take action in case there is any deviation from the established service levels as promised to the Client.

If Supplier is not capable to remedy a shortcoming in supplied materials or products, an alternative or emergency solution can be proposed to the Client. A (partial) restitution of the price of the Product and/or the Service can be proposed as well.

When using the Hosting Account, Client shall behave in accordance with what may reasonably be expected from a responsible and prudential internet user.

Client shall refrain from hindering other clients of Supplier, or internet users in general, or to cause them damage by making use of the Hosting Account. Client is prohibited from activating processes or programs of which Client knows or could reasonably have known that Supplier, other clients, or internet users in general will experience hindrance or damage from such actions. If such an occasion arises, Supplier is entitled to (temporarily) block access to the Hosting Account in order to prevent such situations.

Client shall not use the Hosting Account for actions and/or behaviour that are in violation of the applicable legal provisions, the Agreement, or these Terms & Conditions . Among other things these include, but are not limited to, the following actions and behaviour: (1) spamming: sending large amounts of unsolicited e-mails with the same contents; (2) infringing works of others protected by copyright or otherwise acting in violation of intellectual property rights of third parties; (3) publishing or distributing (child) pornography; (4) sexual intimidation or in any way harassing, hindering or threatening persons; (5) hacking: obtaining access to other computer or computer system on or via the internet without permission.

Client shall not transfer his or her Hosting Account or any other rights pertaining to the agreement to third parties and/or make them available to third parties, unless Supplier has given his express written permission to do so.

Client himself will see to provisioning the required hard- and software, auxiliary equipment and connections in order to enable access to and the use of the Hosting Account.

Liability

The use of the Products and/or Services supplied by the Supplier is at the own risk of the Client. Supplier rejects any liability with regard to damage, directly or indirectly (including without limitations losses resulting from, special, indirect or additional damage, loss of business profits, hindrance of business operations, costs in order to prevent or establish damage, loss of business information, or other financial losses) which result from the use of or the inability to make use of the Product or the Service. If the court decides differently then any liability will in no case be higher than the price paid by the Client for the Product and/or Service.

Supplier shall make his best efforts to take care of the Hosting Account to his best insights and capacities in accordance with the requirements of sound craftsmanship, such in accordance with all that may be expected within the framework of the task assigned to Supplier.

Any liability of Supplier for indirect damage, including consequential damage, lost profit, missed savings, and damage because of business stagnation, is exempted.

The Client who acts in violation of his or her obligations pertaining to the Agreement or these Conditions is liable for all damage resulting thereof for Supplier.

The Client indemnifies Supplier against all claims of third parties with regard to damage or otherwise, which occurred in any way by the use by the Client of the Hosting Account, and/or by the non-compliance by the Client with his or her obligations pertaining to the Agreement or these Supplemental Terms & Conditions Hosting.

Supplier is entitled to immediately take a Hosting Account out of use without further notification of the Client if and as long as the Client acts in violation of what is stated in these Terms & Conditions Hosting. In that case Supplier is furthermore entitled, if the severity of the violation justifies this, to annul the Agreement as of immediately, without any right for damages for the Client towards the Supplier occurring.

The Client vouches for the correctness and completeness of the data made available to the Supplier. Supplier is not liable for damage caused by the incompleteness or incorrectness of the information provided by or on behalf of the Client.

Client indemnifies Supplier against claims from third parties regarding remuneration of damage that those third parties could claim on Supplier in any which way. Supplier is not responsible for the contents of the information made available by the Client by means of the Product and/or the Service(s).

Force Majeure

The Supplier cannot be obliged to comply with the obligations towards the Client if the Supplier is hampered at that as a result of circumstances that can not be attributed to the Supplier or that are imposed on the Supplier by the Law. If Force Majeure is concerned, Supplier shall inform Client on this as soon as possible.

Circumstances that are understood to mean Force Majeure include but are not limited to: disruptions in the connection with the internet, disruptions of the telecommunication infrastructure, disruptions of networks, and disruptions of the power supply, both at the side of the Supplier and at the side of the Client, severe illness, strikes, exclusions, government measures, extreme weather conditions and natural disasters, disruptions and delays in the supply of goods and materials, the non-compliance with obligations by suppliers, sub-contractors, or service providers of Supplier, or interruptions/disruptions of the gas, electricity, telephone, or internet networks. These conditions also include any event or modification as a result of which the compliance with the Agreement has become so problematic and/or costly compared to the moment that the Agreement was entered into, that compliance can no longer be expected from Supplier within reason, such to the judgment of Supplier. In the latter case, the Supplier shall immediately contact the Client in order to hold consultations on a possible prolongation of the Agreement, whilst adapting to the modified circumstances.

During the period of Force Majeure, Supplier is not obliged to comply with the arrangements resulting from the Agreement. If the period of Force Majeure lasts longer than the time duration as specified in the Agreement then the Client is entitled to annul the Agreement in accordance with these Terms & Conditions. The Client is not entitled to remuneration of costs and/or damages in any form whatsoever from the Supplier.

The right to annul the Agreement lapses as soon as the situation of Force Majeure has been lifted and the Client has not yet made use of this right of annulment.

Management and Maintenance

In case of planned maintenance and control activities, Supplier is obliged to inform the Client in due time on the nature, date, time, and duration thereof. Supplier shall thereby make an effort to have the maintenance activities take place at such a time that the Client will experience as little hindrance thereof as possible.

Supplier is entitled to (temporarily) shut down the Hosting Account or to limit the use thereof without prior notification in as far as this is necessary for emergency maintenance and/or urgent adaptations or improvements of the Hosting Account to be carried out by Supplier, without this resulting in a right for compensation of damages from the Client towards Supplier. Supplier shall make his best efforts to limit such situations to an absolute minimum.

Supplier is authorised to apply modifications to the Hosting Account if the Supplier judges that this is necessary because of the quality and/or availability of the Hosting Account for the Client, or for the quality and/or availability of the provision of services to other clients of Suppliers and/or to third parties.

Supplier shall in all such cases inform the Client as soon as possible on any (emergency and/or urgent) maintenance activities and/or modifications.

Intellectual Property and Applicable Law

Intellectual property

Supplier has and maintains the full intellectual property on all materials and works that are manufactured within the framework of an Agreement with Client, unless otherwise agreed in writing in advance.

Supplier retains the right to use increased knowledge acquired during the execution of the activities performed within the framework of an Agreement for other purposes, with the exception of confidential information of Client.

Client indemnifies Supplier against liability with regard to the intellectual property of all materials and works made available by Client.

Applicable Law

Dutch Law exclusively governs these Terms & Conditions and any Agreement between Client and Supplier.

All disputes with regard to, resulting from, or otherwise related to these Terms & Conditions and any Agreement between Client and Supplier shall be presented to the competent Dutch judge in the place of establishment of Supplier.