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Terms and Conditions

 

Version 1.1

The terms and conditions, including the definitions, as described in these Terms and Conditions for Services, shall apply to the Services shall provide pursuant to the Agreements.
. In addition, the services will be governed by their respective service specifications, as referred to on the Services Form.

The provisions of these Terms and Conditions are applicable, unless agreed otherwise in one or more of the Agreements and in accordance with the laws of the country that govern the Agreement(s)

 

Clause 1 - Definitions

1.1. The terms used in these Terms and Conditions shall be defined as follows:

  • Agreement : Any agreement between us and the Customer under which Hostbasket provides services to the Customer, including the annexes and schedules thereto.
  • Business Day(s) : From Monday until and including Friday, except for official holidays in Belgium.
  • Business Hours : Business hours are 9:00h AM to 1:00h PM GMT+1 Monday to Friday, official Belgian holidays excluded.
  • Commencement Date : The date we start providing the ordered Services.
  • Electronic Message : A set of segments, prepared in a computer readable format and capable of being automatically and unambiguously processed, sent through the internet.
  • Initial Agreement Period : The minimum period for which an Agreement has been concluded, as set forth in such Agreement.
  • Parties : The Parties to an Agreement.
  • Service(s) : The Services that we provide under one or more of the Agreements.
  • Services Form : The Services Form, in paper or on-line indicating the Services to be delivered.

 

1.2. References to Clauses in the Agreement are to clauses of these General Terms and Conditions.

1.3. The headings to the Clauses of the Agreement are for ease of reference only and shall not affect the interpretation or construction thereof.

1.4. Reference to any statute or statutory provision includes a reference to that statute or statutory provision as from time to time amended, extended or reenacted.

Words importing the singular shall include the plural and vice versa, words importing any gender shall include all other genders, words importing persons shall include bodies corporate, unincorporated associations and partnerships and vice versa.

 

Clause 2 - Fees, Payment Condition, Price change

2.1. The Customer shall pay us the fees for the Services as specified in the Services Form. The recurring fees due shall be invoiced in advance of each period. The period for invoicing is indicated in the Services Form. The setup, installation and one off fees shall be invoiced in advance.

2.2. Our services must be paid upfront at the beginning of each period. The customer receives an invoice after payment has been received. For customers with a PAI account (payment after receiving invoice), the services will be activated or renewed automatically and payments of invoices or renewals are due 30 days from receipt, unless otherwise stated on the invoice. Accounts will be disabled and deleted if payment is not received within 40 days after sending the invoice or the renewal notice (by postal mail or e-mail).

2.3. We have the right to change each year the price of the fees and charges. Any additional price change shall only be effective if the Customer does not object in writing against such price change within one month from the date of notification of the increase. In that event the relevant Agreement will be terminated as of the expiry date of the Initial Agreement Period or any successive period as agreed to, without incurring a charge or penalty for the Customer. In the period between the notification and the date of termination of the relevant Agreement, the Service(s) shall be provided under the same terms and conditions as initially agreed to. If the Customer continues to use the Service(s) after the Initial Agreement Period, or any successive period as agreed to, such continuation shall be considered as an acceptance of the price increase, from the commencement date as set forth in the notification of the price increase.

2.4. If the Customer fails to pay any amount due pursuant to, or in connection with, the Agreement by the Due Date, it will be in default without prior written notice to that effect being required. In that event, all amounts payable by the Customer under the relevant Agreement shall become immediately due and payable and notwithstanding any other right Hostbasket may have under the applicable law, Hostbasket shall be entitled to (1) charge daily interest on all due and unpaid amounts at the rate of 10% per year and (2) compensation in respect of all costs connected with the recovery of its claim (including all legal fees and expenses and VAT), equal to 10% of the amount of the unpaid invoice, with a minimum of 100 euro.

 

Clause 3 - Financial Conditions

3.1. The Customer waives all rights to setoff or suspend any of its payment obligations for whatever reason.

3.2. All amounts payable by the Customer to us arising out of or in connection with the Agreement shall be increased by the statutory value added tax.

3.3. Any costs, charges, expenses, taxes and stamp duties levied in connection with the execution and/or implementation of this Agreement shall be borne by the Customer.

 

Clause 4 - Maintenance and Support

4.1. From time to time we will carry out maintenance on its facilities and equipment, which includes changes necessitated by technical developments.

4.2. If a deviation from the Service(s), as normally provided occurs (hereinafter referred to as an "Occurrence"), the Customer will immediately inform us.

4.3. If it shall come to our attention, that an Occurrence is caused by the Customer or by a defect in any equipment under the control of or used by or on behalf of a the Customer, we will notify the Customer thereof and inform the Customer, if possible, on the probable cause of the Occurrence.
Promptly upon receipt of such information the Customer shall at its own costs initiate all reasonable measures to correct the defect, which is or may be, the cause of the Occurrence.

4.4. If it shall come to our attention that an Occurrence is caused by another customer or by a defect in any equipment under the control of or used by or on behalf of other customers, we will notify such other customers and shall request such other customers at their own costs to take appropriate measures. In no event we will be liable towards a Customer for such Occurrence caused by such other customers.

4.5. If Clause 4.3 or 4.4 applies we may suspend the access of the relevant Customer to the Services until the fault or defect that causes or may cause the Occurrence has been adequately corrected in our opinion. In no event we will be liable for the consequences of such suspension.

4.6. The Customer shall always inform Hostbasket of any maintenance activities being carried out that may disable, interrupt or otherwise interfere with our Services. The Customer shall inform us of the start and end time of the maintenance activities.
During the Customer’s maintenance activities no warranty or guaranty with regard to the Services applies nor does the Service Level Agreement apply.

4.7. The Customer shall provide us all relevant information necessary to provide the Services.

4.8. The Customer must provide an active email address to us. We and the Customer will use this email address for all official communication. The customer must update the email address via our selfcare portal. If the customer doesn't update his email address and/or other contact details, the customer breaches these Terms and Conditions and we may end the registration as foreseen in Clause 13.

 

Clause 5 – Intellectual Property Rights

5.1. Nothing in these General Terms and Conditions confers or transfers any intellectual property rights between parties. Unless explicitly mentioned in an Agreement, no license on software or any other authorisation is given. Each party acknowledges the ownership of the other party in the copyrights, trademarks and/or service marks of the other party and agrees that all use of the other party’s copyrights, trademarks and/or service marks shall inure to the benefit of the other party. Each party acknowledges that its utilisation of the other party’s copyrights, trademarks and/or service marks will not create in it any right, title or interest in or to such copyrights, trademarks and/or service marks other than rights expressly granted herein. Each party agrees not to do anything contesting or impairing the copyrights, trademark and/or service mark rights of the other party.

5.2. The Customer acknowledges that the provision of our Services will include application of certain know-how and contains proprietary information. All such information and know-how remains our property and shall be deemed to be Confidential Information.

5.3. To the extent that we would require a license to any intellectual property rights owned or used by Customer for the purpose of providing the Services, such license is hereby granted for the duration of the relevant Agreement and for the sole purpose of providing such Services to Customer. Customer warrants that the license granted to us under this clause is validly made.

 

Clause 6 - Liability

6.1. Our liability for damage shall in any case be limited to an aggregate amount of one monthly fee per event or series of related events, with a maximum amount of twelve monthly fees in respect of all events arising in a year, unless such damage results from willful intent or gross negligence.

6.2. We will not be liable to the Customer for special, incidental, indirect, punitive or consequential damages, including but not limited to whether occasioned by the act, breach, omission, default or negligence of the company, its employees and contractors and subcontractors, which shall include, without limitation, loss of business, revenue or profits, loss of use or data, loss of savings or anticipated savings, loss of investments, loss of goodwill, loss of reputation or cost of capital or loss of extra administrative cost whether or not foreseeable, arising out or in connection with the relevant Agreement, whether in an action based on contract, statue, equity, or tort including negligence or other legal theory.

 

Clause 7 - Force Majeure

7.1. Neither party shall be responsible or liable for any failure or delay or consequence thereof in the performance of any of its obligations under the Agreements owing to strikes, lockouts or other industrial disputes (whether or not involving the workforce of parties or any other party), act of God, embargo, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood or storm or to any other cause whatsoever beyond the party’s reasonable control or the after effects of any of the foregoing. If any such delay occurs, then (unless the cause thereof shall frustrate or render impossible or illegal the performance of the relevant Agreement which shall otherwise discharge the same) the period for the party to perform its obligations hereunder shall be extended by such period (not limited to the lengths of delay) as the party may reasonably require to complete such performance.

7.2. The Party invoking this Clause 6 shall give notice forthwith to the other Party upon becoming aware of an occurrence of Force Majeure, such notice to contain details of the circumstances giving rise to the occurrence.

7.3. If a default due to an occurrence of Force Majeure shall continue for more than two calendar months, then the other Party shall be entitled to terminate the Agreement in respect of the Service that is affected by the occurrence of Force Majeure.

 

Clause 8 - Notices

8.1. Any notice or other communication to be given regarding the Agreements by either party to the other shall be in writing or by Electronic Message (a "Notice"). A Notice shall be deemed received as of the following:
(a) if delivered by hand or by registered mail: on the time of delivery;
(b) if sent by fax: at the time of reception if received during Business Hours of the recipient, or else one hour after commencement of the next Business Day;
(c) if sent by Electronic Message: at the time of reception of such Electronic Message if received during Business Hours, or else one hour after commencement of the next Business Day. An Electronic Message shall be deemed to have reached the computer system at the moment of its receipt as recorded in the receiving party’s computer system, save where evidence to the contrary is adduced by the sending party.

 

Clause 9 - Confidentiality

9.1. All technical and business information received by a party to the Agreement (hereinafter referred to as Receiver) from another party to the Agreement (hereinafter referred to as the Disclosing Party) pursuant to or in connection with the performance of the Agreements shall be kept confidential towards third parties ("Confidential Information").

9.2. The obligation as set forth in this Clause shall not apply to Confidential Information which:
(a) is part of the public domain without violation of the Agreements;
(b) is known and in record at the Receiver prior to disclosure by the Disclosing Party;
(c) is developed by the Receiver completely independently of and prior to any such disclosure by the Disclosing Party;
(d) is ascertainable from a commercially available product; or
(e) is disclosed pursuant to administrative or judicial action, provided that the Receiver shall use its best efforts to maintain the confidentiality of the Confidential Information and shall, immediately after gaining knowledge or receiving notice of such action, notify the Disclosing Party thereof and give the Disclosing Party the opportunity to seek any legal remedies so as to maintain such Confidential Information in confidence.

 

Clause 10 - Permission to Subcontract

10.1. We will be entitled to subcontract all or part of its obligations under the Agreements. We will remain responsible for the fulfillment of its obligations under the Agreements. The Customer agrees with the signing of the Agreements in advance to such subcontracting.

 

Clause 11 - Relationship

11.1. The Customer acknowledges that there will be no contract between us and the customers of the Customer merely as a result of the Agreements. The Customer shall indemnify and keep indemnified, hold harmless and defend us in respect of any loss, damage or expense (including attorneys’ fees) resulting from any claim brought by customers of the Customer regarding the subject of the Agreements.

11.2. The Agreements do not create nor shall they be deemed to create any partnership, joint understanding or joint venture between us and the Customer. The Customer does not have, and will not hold itself out as having any authority to act for or create any obligation of, or make any representation on behalf of or in the name of Nomeo.

 

Clause 12 - Assignment

12.1. Each Agreement is personal to the Customer and the Customer may not assign, transfer, subcontract, sublicense or otherwise part with any Agreement or any right or obligation under any Agreement to any third party except with our prior written consent.

12.2. We shall be entitled to transfer each present Agreement as well as any and all rights and obligations arising out of or in connection with each Agreement upon notice to the Customer to an affiliated company i.e. a company in which Nomeo bvba holds a majority of the voting rights and/or has the power to appoint the majority of the board.

 

Clause 13 - Term and Termination

13.1. Subject to the provisions of this Clause all of the Agreements shall commence on the Commencement Date and shall remain in effect for the Initial Agreement Period after the Commencement Date. Any of the Agreements shall thereafter be automatically renewed for a successive period of 1 (one) year unless terminated by either party by written notice to the other party, not less than 3 (three) months before the end of the then current period.

13.2. Either party may terminate any of the Agreements by Notice with immediate effect in the event that:
(a) the other party becomes insolvent, or voluntary or involuntary proceedings are instituted by or against such other party under any applicable insolvency laws; or
(b) the other party caused damages as a result of gross negligence or willful intent.

13.3. Either party shall be entitled to terminate or suspend any of the Agreements or its obligations there under with immediate effect by Notice to the other party in the event that:
(a) the other party breaches or fails to perform any of the terms of the Agreements and such breach or failure is (i) not capable of remedy; or (ii) if capable of remedy, is not remedied in 30 (thirty) calendar days of Notice from the other party, requiring such breach or failure to be remedied.

13.4. Any right to suspend its performance of the Agreements is without prejudice to the relevant party’s right to terminate the Agreement. Termination of the Agreements shall not prejudice the rights accrued up to the date of termination by either party.

13.5. Expiration or termination of any Agreement shall not prejudice the terms and conditions of such Agreement, which by their nature must be deemed to survive such to expiration of termination, including but not limited to Clauses 2, 3, 5, 6, 7, 8, 9 and 15.

 

Clausule 14 - Penalty for early termination

14.1. The Customer can end the Agreement before the current term by giving notice at least 90 days upfront by registered mail and by paying 75% of the remaining contract value. There are no refunds.

 

Clause 15 - Miscellaneous

15.1. If any provision in the Agreements including these General Terms and Conditions is void or avoided for whatever reason, the remaining provisions shall remain in full force and effect.

15.2. The failure on the part of either Party to exercise, or any delay in exercising, any right or remedy hereunder shall not operate as a waiver thereof; nor shall any single or partial exercise of any right or remedy hereunder preclude any other or future exercise thereof or the exercise of any other remedy granted hereby or by any related document or by law.

15.3. No addition to, or modification of, any provision of the Agreement shall be binding on the Parties unless made in writing and signed by a duly authorized representative of each of the Parties.

 

Clause 16 - Statutory conditions

16.1. The Customer shall at its own cost apply for, possess and maintain any authorization, license, registration, and/or permit which is required to enable it to conduct its respective businesses and to use the Services.

16.2. The Customer shall comply with the conditions as set forth in such authorization, license or permit and shall indemnify and keep indemnified Nomeo for any claim by a third party in respect of damages, losses or costs suffered due to noncompliance of the Customer with the aforementioned obligations.

 

Clause 17 - Registration conditions

17.1. Each domain extension and registry has its own registration conditions. The customer explicitly agrees to the registration conditions for the domains that he registers, transfers, trades or does any other transaction with.

17.2. The registration conditions available on this website are purely for information purposes. The correct and binding versions of the registration conditions can be requested with Nomeo and are available on the websites of the registries.

 

Clause 18 - Applicable law and jurisdiction

18.1. The implementation, interpretation and execution of this Contract are governed exclusively by Belgian law. In the event of a dispute, only the courts of Ghent have jurisdiction.

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