Definitions
In these General Terms and Conditions and the Agreements of SpamExperts the following is to be understood by:
SpamExperts
The company acting under the name SpamExperts BV, which is listed in the Dutch Trade Register of the Chamber of Commerce in Amsterdam, registration number 14089140, as well as any natural person or legal body to be appointed by it;
Account
An access to the Services provided by SpamExperts to Licensee, which can be accessed by means of a Username and Password;
Services
The service that SpamExperts provides by means of its Software and other activities;
Username
A code allocated by SpamExperts to Licensee or provided by Licensee himself, which in combination with a Password gives access to the Services;
Hosted Software
The Software installed on the servers of SpamExperts;
Installed Software
The Software installed on servers of Licensee;
License
The right a Licensee has to use the Services;
Licensee
The natural person or legal body who enters into an Agreement to use the Services of SpamExperts;
Agreement
Any obligation to provide Services, including the contract;
Software
The entirety of the software code with which the Applications of SpamExperts have been fitted;
Conditions
The terms and conditions as have been described in this document, as well as all changes and modifications made to them;
Password
A combination of numbers, letters and symbols allocated by SpamExperts to Licensee or provided by Licensee himself, which in combination with a Username gives access to the Services;
Website
The Internet pages of SpamExperts that are part of the following domain: spamexperts.com
2. Applicability
2.1 The Conditions apply to all proposals, promotions, orders and Agreements between Licensee and SpamExperts, as well as to any offer, promotion, order or agreement that can be identified as a sequel, addendum or modification of an Agreement previously entered into.
2.2 The Conditions together with the confirmation make up a legal and binding Agreement between Licensee and SpamExperts as far as the use of the Services is concerned. By accepting these Conditions and the confirmation, these documents and the information they contain will completely replace any previous agreements between Licensee and SpamExperts.
2.3 Unless otherwise agreed in writing, these Conditions apply to the Agreement with SpamExperts at all times.
2.4 In the Conditions, words that have been written in plural should be attributed the same meaning as words that are written in singular and vice versa.
2.5 Any deviation from that which has been stated in the Conditions applies exclusively if and to the extent to which this has been explicitly been agreed upon by Licensee and SpamExperts and has been put down in writing.
2.6 Licensee is bound to declare that the Conditions apply unimpaired to Agreements that he enters into with any third party, if and insofar as Licensee orders SpamExperts to provide Services to afore-mentioned third party during the Agreement. Licensee indemnifies SpamExperts from third party claims that arise from not adhering to this condition by Licensee.
2.7 Insofar as the written acceptance of the order does not stipulate otherwise, General Terms and Conditions of Licensee or third parties, regardless the nature or purpose thereof, are not accepted by SpamExperts and explicitly rejected.
2.8 Wherever in these Conditions a reference is made to written communication, this also includes communication of an electronic nature. Any communication received or stored by SpamExperts goes as authentic, barring evidence in rebuttal to be provided by Licensee.
2.9 Should one or more of the conditions from the Conditions be null and void or be nullified, the other conditions will remain in full force. In this case, SpamExperts and Licensee will consult to agree on new conditions to replace the void or nullified conditions, whereby if and as much as possible the purpose and tenor of the original condition will be taken into account.
3. Language
3.1 The Conditions of SpamExperts have been drafted in the Dutch Language.
3.2 If and insofar in an Agreement a translated version of the Conditions is used, these only serve to facilitate user convenience. The Agreement with SpamExperts is governed by the Dutch version of the Conditions. In case of any contradiction between conditions in the Dutch version of the Condition and a translation thereof, the Dutch version prevails at all times.
AGREEMENT
4. Realization of an Agreement
4.1 Offers of SpamExperts are always without commitment and good for a maximum period of 14 (fourteen) days. SpamExperts is only bound to a proposal or offer if the acceptance thereof is confirmed in writing by the Licensee within 14 days, unless stipulated otherwise.
4.2 Until the moment of written acceptance of the Agreement by the Licensee, SpamExperts is never bound to providing services.
4.3 Unless agreed otherwise, supplements and / or changes in the Agreement only commit Parties if these have been agreed in writing, taking into consideration everything that has been determined in the Conditions.
4.4 In order to be able to use the Services, Licensee should explicitly agree with the Conditions. Without consent, the Licensee is not permitted to use the Services.
4.5 Acceptance of the Conditions takes place in writing by means of an assenting opinion or by signing the engagement letter or Agreement.
5. Duration, rescission and interim cancellation of service
5.1 The Agreement is entered into for a minimum period of 12 (twelve) months and then renewed tacitly for a term of the same length, unless it is cancelled before the end of the contract period.
5.2 The Agreement for the use of the Services can be cancelled by Parties exclusively in writing, with observance of a term of notice of 2 (two) months before the end of the agreed period.
5.3 Interim cancellation of the Agreement can exclusively take place in case of a lasting failure to fulfil obligations and can explicitly occur only after the default party has been declared in default in writing and has as yet been granted a reasonable term to fulfil its obligations.
5.4 Each party is entitled to annul this Agreement immediately, without further notice to pay or perform and without a preceding court ruling, completely or partly by means of a registered letter addressed to the counterparty in case of the following:
The counterparty petitions for suspension of payment or has been granted suspension of payment;The counterparty petitions for liquidation or is declared bankrupt;
The goods placed at the disposal of the counterparty within the framework of this Agreement are seized and this seizure is not released within a reasonable period of time;
The counterparty fails to fulfil its obligations resulting from this Agreement even after having received letters of notice stating a reasonable period of time to do so.
The counterparty cannot, during a period of more than 90 (ninety) days as result of force majeure, which does not include incapacity to fulfil payment obligations, fulfil its obligations or fails to fulfil its obligations on the base of this Agreement or as soon as is established that the force majeure will last for more than 90 (ninety) days;
5.5 By invoking the suspension or cancellation of the Agreement, SpamExperts can never be obliged to the payment of any kind of compensation, undiminished the right of SpamExperts to lay claim to payment of all outstanding invoices for Services provided to Licensee, which payments become collectable at that moment immediately and completely.
INVOINCING AND PAYMENTS
6. Fees
6.1 The fees for the Services depend on the number of Licences and the License type.
6.2 SpamExperts will periodically invoice the number of authorized Licenses in advance.
6.3 SpamExperts will use fees in Euros or US dollars, exclusive of 19 % VAT and other legal charges imposed by the government, in its proposals and other offers.
6.4 SpamExperts reserves the right to modify prices and fees during the Agreement, in case changes are imposed on it by the government. In this case, the change will be recharged as of the date on which the change imposed by the government takes effect.
6.5 SpamExperts is authorized to modify the used prices and inform Licensee of the modification at least 2 (two) months in advance. In case of a price increase, Licensee is entitled to cancel the Agreement, with observance of a term of notice of 1 (one) month.
7. Invoice van payment conditions
7.1 Only payment of the invoice by transfer in the indicated manner, tegen behoorlijk bewijs van voldoening, leads to discharge of Licensee. Payment of the invoice should be settled within 14 days after the date on the invoice at the latest.
7.2 Should the invoice not be settled within the timeframe described in the previous subsection, Licensee is indebted the legal interest after the expiration of the terms of payment and after Licensee has been properly declared in default in that respect. The interest on the amount due will be calculated form the moment that Licensee is negligent until the moment the complete amount has been paid.
7.3 Should Licensee not agree with the amount invoiced by SpamExperts, Licensee is liable to make this known immediately, yet within 14 days after the date on the invoice, in writing, stating reasons, to SpamExperts. In the absence thereof, the invoice becomes irrevocable.
7.4 Licensee is under no circumstance entitled to level the invoice with any claim that Licensee may have against SpamExperts, on account of whomever.
7.5 Should Licensee be negligent in paying the invoice sent to him by SpamExperts in a timely fashion, the latter is authorized to postpone or stop delivering the obligations that it has based on the Agreement, or to cancel the Agreement by means of an out-of-court order. Should the relevant situation occur, the afore-mentioned instruments are at the disposal of SpamExperts and the selected instrument will leave the right of SpamExperts intact to claim fulfilment or compensation of the damage suffered as a result of the postponement or dissolution from Licensee.
7.6 In case Licensee threatens to become in liquidation, bankruptcy or judicial settlement, the obligations of the Licensee are immediately and completely claimable.
7.7 In case Licensee is negligent with regard to fulfilling its obligations, SpamExperts is authorized to fully recharge to Licensee all expenses it must make to collect its claim from Licensee, including the expenses for assistance in or out of court. Unabated the right of SpamExperts to claim the actual out-of-court expenses it has incurred, the compensation will amount to 15 % of the capital sum. With regard to this, SpamExperts does not need to provide any proof to Licensee.
7.8 Any payment made by Licensee to SpamExperts will exclusively serve, irrespective of the destination that Licensee has attributed to it, first of all to diminish the expenses as described in the previous subsection, secondly to diminish the arrear interest and, finally, to pay the capital sum and the interest currently accruing.
LICENSE CONDITIONS
8. Licensee
8.1 Licensee is obliged to provide full cooperation to SpamExperts with regard to the execution of an Agreement.
8.2 If the required data that are necessary for the execution of the Agreement are not provided to SpamExperts in a timely fashion or Licensee does not otherwise fulfil its obligations that based on the Agreement are his, SpamExperts is entitled to postpone the obligations it has according to the Agreement for the same amount of time.
8.3 If Licensee is unable to provide the cooperation as meant in the first subsection of this paragraph, he should immediately inform SpamExperts thereof, whilst stating reasons.
8.4 Licensee is not authorized to transfer completely or partly any rights or obligations that result from the Agreement without prior written consent from SpamExperts.
9. Guarantee
9.1 Licensee has the right to cancel the Agreement in writing within 30 days after the start date if he is not satisfied about the Services.
9.2 If a cancellation occurs as described in the previous subsection, Licensee will receive back any compensation already paid for the Services within 14 days after the cancellation mentioned in the previous subsection.
9.3 SpamExperts manages or delivers the Services in its current state and with all the present flaws. Unless explicitly agreed otherwise, SpamExperts rejects all other guarantees and efforts, in particular, but not limited to any (possible) implicit guarantees, obligations or conditions of marketability, of suitability for a certain purpose, of non-presence of viruses, of speed about the processing of email, privacy, of results, of absence of negligence and of lack of professional effort.
9.4 SpamExperts guarantees that the Software will function properly when using the recommended configurations. SpamExperts does not guarantee the proper functioning of the Software when using other configurations than those recommended by SpamExperts.
10. License Use and Services
10.1 Licensee will refrain from infringing upon the rights of third parties by means of the License and/or the Services.
10.2 Licensee will refrain from obtaining access to the Software in other ways than by means of the interface that SpamExperts places at his disposal by default and will in no way remove or dodge the Software security.
10.3 Licensee will not undertake any activities that would disrupt or interrupt the Services (which also include the servers and networks for the Services).
10.4 Without explicit, prior written consent, Licensee will refrain from multiplying, (re)selling or dealing the Services or a derived form thereof.
11. Fair use
11.1 For the use of the Services, a fair use policy applies.
12. Responsibility safety critical applications
12.1 Licensee is allowed to apply the Services at his own risk and under his own responsibility for "safety critical" applications, such as medical systems. SpamExperts can never be held responsible or liable for any damage (on account of whomever) if the Services are applied by Licensee for afore-mentioned applications.
12.2 SpamExperts reserves the right to impose maximum limits on the Services if and insofar as the use is not in proportion with the agreed return service.
13. Email traffic of Licensee or of third parties
13.1 SpamExperts has the right to save, modify, open, use and share with third parties or hand over to third parties the email messages that have been classified as spam (or as (non-)spam reported) email messages. To this end, Licensee will provide a licence to SpamExperts and Licensee will warrant SpamExperts that the licence can be provided. Licensee indemnifies SpamExperts from any third-party claims with regard to afore-mentioned licence.
13.2 SpamExperts will make an effort to take measures not to save or open the email messages that are not labelled as spam. If technically required, or to improve the software and/or Services, SpamExperts has the right to open or use the email messages. The content will be treated confidentially.
13.3 Licensee declares that SpamExperts is not liable for any loss or any damage that Licensee may suffer as a result of the non-availability, incorrectness or incompleteness of the Software and/or Services.
14. Account
14.1 Access to the Services will be arranged in a manner that is determined by SpamExperts.
14.2 For access to the Services, an Account is required.
14.3 In order to obtain an Account, Licensee should provide the required identification or contact data. Licensee ensures that all registration information he provides to SpamExperts is comprehensive, correct and up to date.
14.4 Licensee is completely responsible for the correct use of the Usernames and Passwords. SpamExperts cannot be held responsible for abuse and any damage resulting from abuse.
15. Right of Use
15.1 SpamExperts will provide Licensee with a personal, non-transferable and non-exclusive Licence to use the Services. The Licence will exclusively be provided to Licensee in order to enable him to use the Services, in the manner determined in these Conditions.
15.2 Licensee is not allowed to do the following with the Software – or any part thereof: copy, change, redevelop, dissect, subject to reverse-engineering, decompile or in any other way discover the source code thereof, or create derivative works thereof, or give third parties the opportunity to do so.
15.3 Unless SpamExperts has given Licensee explicit written consent to this end, with regard to the Services Licensee is not allowed to transfer rights, provide a sublicense, establish a secured right, transfer the rights of use on the Services completely or partially, or allow third parties to use them.
15.4 Licensee is not allowed to retransfer any right from an Agreement made with SpamExperts, other than with the cession of his entire enterprise.
16. Installed Software
16.1 On the termination or interim dissolution of the Agreement, Licensee permits SpamExperts to remove all Software installations and accompanying manuals from the Licensee servers.
16.2 SpamExperts will not charge additional costs to Licensee unless this is necessary for the proper functioning, repair, maintenance or recovery of the Software as a result of a circumstance that can be imputed to Licensee.
16.3 If, as a result of hardware errors on the part of Licensee, a reinstallation of the Software is required, SpamExperts will charge costs for this afterwards per installation of the Software.
16.4 If Licensee wishes to relocate the Software to other servers or to expand the cluster of servers, SpamExperts will charge costs for this afterwards per newly installed server.
16.5 If the Software is installed on a server of Licensee and this is not accessible for more than 7 days in a row and/or SpamExperts does not have the opportunity to manage the software properly and keep it up to date, the Software should be removed and reinstalled. SpamExperts will charge costs for this afterwards per reinstallation.
17. Browser compatibility
17.1 If Licensee uses an internet browser that is not or insufficiently compatible with the Services, Licensee will use an internet browser for the Services that has been recommended by SpamExperts.
18. Development, updates, maintenance and management
18.1 For the benefit of the Licensee, SpamExperts will continuously innovate its Software and Services. The shape and nature of the service to Licensee may change as a result of this. Licensee agrees explicitly that the shape and nature of the Services can change and grants SpamExperts permission to make any changes without prior notification, on the condition that the changes will improve the nature and functionality of the Services.
18.2 The Services for which Licensee uses a Licence can be updated at SpamExperts’ discretion without prior notification. These updates are intended to improve, expand and further develop the Services, and can be published in the shape of improved functionality, Bug Fixes, modified interfaces, new modules, integration of additional applications and completely new versions. Licensee grants SpamExperts permission to install updates and to receive these as part of the use of the Services.
18.3 SpamExperts has the right to continuously modify the Software in order to improve functionality and repair bugs. Since the Services are provided to multiple Licensees, it is not possible just for Licensee not to accept a specific modification. SpamExperts is not bound to any compensation for damage when modifying the Software.
18.4 In urgent cases, SpamExperts is authorized without prior notification to (temporarily) discontinue the Services or the Software or limit the use thereof to the extent that this is necessary to perform the reasonably required maintenance or for the necessary modifications or improvements of the Services or the Software that SpamExperts needs to implement, without this giving rise to a claim for compensation from the Licensee towards SpamExperts. SpamExperts makes an effort to limit the inconvenience that may result from this discontinuation to a minimum.
19. Service conditions
19.1 The Services are provided on an "as is" basis. SpamExperts makes an effort to achieve the results the Licensee aims for.
19.2 SpamExperts aims for adequate physical security of the hardware SpamExperts uses, in accordance with the current technological standards.
19.3 SpamExperts aims for an adequately and logically secured environment for the use of the de Services.
20. Helpdesk
20.1 Licensee ensures the reachability of the contacts conform the order in which these have been described when entering into the Agreement. In case of a calamity, SpamExperts can seek contact with the appropriate contacts to inform them about the possible threats for the system.
ADDITIONAL SERVICES
21. Complaints additional activities
21.1 If SpamExperts provides additional Services for the benefit of the Services to Licensee, Licensee is bound to check these activities at a moment after delivery that is to be specified in further detail.
21.2 Any complaints about the Services (unreachability or inaccessibility) or (additional) activities that have been conducted should be reported by Licensee immediately, yet within 3 work days after detecting the defects at the latest in writing or by email to SpamExperts, giving a detailed description of the defect.
CONCLUSION
22. Liability
22.1 Any form of (out-of) contract liability of SpamExperts, based on a mistake that can be attributed to SpamExperts in the execution of the Agreement, is limited to compensation of direct damage to a maximum of 50% of the amount that equals the annual compensation as agreed in the Agreement.
22.2 Considering what is determined in the previous subsection, SpamExperts can never be held responsible by Licensee for any of the following:
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any indirect or consequential damage that Licensee may suffer. This includes any loss of turnover or profit, loss of goodwill or business reputation, or any loss of data that Licensee suffers;
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any loss or damage that Licensee may suffer as a result of the following:
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a - changes that SpamExperts makes to the Services, or the permanent or temporary discontinuation of the Services or parts thereof;
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b - the trust that Licensee has in the completeness, accuracy and correctness of the messages that are shown by SpamExperts;
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c - the wrong or irregular use of the Services, the Account and/or the UserID and Password;
22.3 Under direct damage in the sense of the first subsection is understood the reasonable expenses:
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a - to establish the cause and the size of the damage, insofar as the assessment concerns damage in the sense of these Conditions;
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b - to prevent or limit damage, insofar as Licensee can prove that these expenses have led to limiting the direct damage as referred to in these Conditions.
22.4 If the damage is caused as a result of the fact that Licensee has provided inaccurate information or has created an incomplete impression of facts, or in any other way is a consequence of the actions or negligence of Licensee, any form of liability on the part of SpamExperts is excluded.
22.5 Licensee is bound to report any mistakes of SpamExperts immediately in writing to SpamExperts, yet within 30 days after Licensee could reasonably have become aware of the mistake. Neglecting this obligation results in the expiration of the right to compensation in the sense of this paragraph.
23. Force Majeure
23.1 If and insofar due to force majeure SpamExperts is unable completely or partially to meet its commitments from the Agreement, SpamExperts is authorized to waive the Agreement completely or partially, or to postpone execution thereof, without being bound to any kind of compensation of Licensee.
23.2 Under force majeure in the sense of this paragraph is understood, without prejudice to article 6:75 Civil Act, any circumstance the cause of which lies outside the will or doing of SpamExperts, the consequence of which is that the fulfilment of the Agreement by SpamExperts cannot reasonably be expected. This includes breakdowns or failure of the Internet, the telecommunication infrastructure, of any operator or Internet service provider or access provider, the full staffing of dial-up Internet access telephone lines or insufficient bandwidth of an access provider, national riots, mobilisation, war, traffic congestion, strike, exclusion, company disturbances, supply congestion, fire, floods, import and export impediments and in the case that SpamExperts due to its own suppliers, irrespective of the reason, is unable to deliver as a result of which fulfilling the obligations that result from de Agreement cannot reasonably be expected of SpamExperts.
24. Intellectual property
24.1 The Services / Software and everything that is produced by SpamExperts resort directly under the protection of the copyright and any other possible intellectual or industrial property rights. The rights belong exclusively to SpamExperts and/or its licence providers.
24.2 Licensee unconditionally indemnifies SpamExperts from any claims that third parties may hold SpamExperts liable for, based on the Agreements between Licensee and SpamExperts, as a result of an illegitimate act of Licensee towards those third parties.
24.3 Licensee will not remove, make illegible or replace property tags that are connected to or enclosed in the Software and/or Services.
24.4 Any use, multiplication or publication of the materials that are not part of the Agreement or the granted user rights, will be considered as an infringement of copyright. Licensee will pay a fine of 10,000 Euros to SpamExperts for each infringing action which is immediately claimable and not open to judicial temperance, without prejudice to SpamExperts’ right to be compensated for damage suffered by it as a result of the infringement or to take further legal action in order to cancel the infringement.
25. Secrecy
25.1 During and after the termination of an order or Agreement, Licensee and SpamExperts will continue to deal confidentially with everything both parties have learned as confidential information and will not disclose these data to third parties, unless this is necessary to fulfil the obligations of the Agreement, or may otherwise reasonably be necessary. Information is considered confidential when it has been labelled as such by the other party or follows naturally from the nature of the information.
25.2 If SpamExperts, based on a legal stipulation or a judicial sentence, is bound to provide confidential information to a legally appointed judge or to appointed third parties and cannot appeal to its right of non-disclosure, it is authorized to cooperate with such a request. In this case, SpamExperts cannot be bound to compensating for any damage that results from its cooperation and Licensee is not authorized either to annul the Agreement.
26. Collaboration
26.1 Parties are mutually authorized to use the other party as a reference and use each other’s company logo.
27. About these conditions
27.1 These Conditions have been registered with the Maastricht Chamber of Commerce (The Netherlands).
27.2 SpamExperts is authorized to modify or complement its Conditions in the meantime. Modifications will take effect 30 (thirty) days after the date of publication or at a time that is to be specified. Licensee will be informed about a modification in the sense of this paragraph. Barring a different counter message within 30 days after the date of publication, Licensee is expected to tacitly accept the modified Conditions.
28. Applicable law
28.1 To all Agreements between Licensee and SpamExperts Dutch law applies exclusively and Dutch judicial authority is authorized to be informed thereof.
28.2 If and insofar as Licensee is not established in the Netherlands, Licensee will elect domicile at the offices of a solicitor in Amsterdam should a dispute arise between parties.
28.3 Insofar as the law does not imperatively prescribes anything else, any dispute that result from the Agreements entered into with SpamExperts will be brought before the Amsterdam Court of Justice.
Terms of Use
Copyright © 2005 - 2012 "SpamExperts B.V." (SpamExperts), the SpamExperts logo, other intellectual property and all information contained on this Web site, is property of SpamExperts. SpamExperts does its utmost to keep all information accurate and up to date but does under no circumstances accept liability for any errors or mistaktes which may arise. SpamExperts may grant access to or use of (part of) the information contained on this Web site, but permission must be given by an authorized representative of SpamExperts in writing. More information can be found in the General Terms & Conditions and the Privacy Statement which can be downloaded from the SpamExperts Web site. SpamExperts reserves the right to change or delete (part of) the information of this Web site without notice.
