For the purpose of these General Conditions and the Agreements of SpamExperts the following definitions shall apply:
The company trading under the name of SpamExperts BV, which is registered with the Chamber of Commerce in Amsterdam, registration number 14089140, as well as any natural person or legal entity to be designated by it.
Access to the Services provided to the Licensee by SpamExperts, which Services may be accessed by means of a user name and password.
The services offered by SpamExperts by means of its Software and other activities;
A unique mailbox designated by the Licensee for which the Services are provided;
A code assigned to the Licensee by SpamExperts or given by the Licensee himself/itself, with which access to the Services may be acquired in combination with a Password;
The Software installed on the servers of SpamExperts;
The Software installed on the servers of the Licensee;
Licensee´s right to use the Services for the number of domains and/or Users agreed upon.;
The natural person or legal entity that enters into an Agreement for the purchase of the Services of SpamExperts;
Any commitment for the provision of Services, also including the agreement for services;
The entirety of the software code with which the Applications of SpamExperts have been equipped;
The terms and conditions as set out in this document, as well as all the adjustments and modifications thereto;
A combination of figures, letters and symbols assigned to the Licensee by SpamExperts or provided by the User himself, with which access to the Services may be obtained in combination with the User name;
The Internet pages of SpamExperts, which can be found under the domain of: spamexperts.com
2.1 The Conditions shall be applicable to all the quotations, offers, assignments and Agreements between the Licensee and SpamExperts, as well as to any quotation, offer, assignment or Agreement that may be designated as a continuation, supplementation or modification of an Agreement concluded earlier between the parties.
2.2 The Conditions together with the confirmation form a legally valid and binding agreement between the Licensee and SpamExperts as far as the use of the Services is concerned. By accepting these Conditions and the confirmation these documents and everything provided therein shall replace all previous arrangements between the Licensee and SpamExperts in full.
2.3 Unless otherwise agreed in writing these Conditions shall always be applicable to the Agreement with SpamExperts.
2.4 In the Conditions words written in plural form should be attributed the same meaning as words written in singular form and vice versa.
2.5 Any deviation from the provisions in the Conditions shall only apply if and in so far as explicitly agreed between the Licensee and SpamExperts and laid down in writing between the parties.
2.6 The Licensee shall be obliged to declare the Conditions applicable in full to any Agreements that he/it enters into with third parties, if and in so far as the Licensee instructs SpamExperts to provide Services to the relevant third party during the Agreement. The Licensee shall indemnify SpamExperts for claims of third parties which arise as a result of Licensee’s failure to comply with this provision.
2.7 In so far as not otherwise provided in the written acceptance of the assignment, general conditions of the Licensee or third parties, regardless of their nature or tenor, shall not be accepted and shall be explicitly rejected by SpamExperts.
2.8 When reference is made to written communication in these Conditions, communication by electronic means shall also be included. The version of any communication received or stored by SpamExperts shall be considered authentic, subject to proof to the contrary to be provided by the Licensee.
2.9 If one or more of the provisions from the Conditions are void or should be voided, the other provisions shall remain in full force. In that case SpamExperts and the Licensee shall enter into consultation to agree on new provisions in replacement of the void or voided provisions, whereby the purpose and the tenor of the original provision shall be observed if and in so far as possible.
3. Conclusion of an Agreement
3.1 Offers of SpamExperts are always without obligation and valid for a period of 14 (fourteen) days at most. SpamExperts shall only be bound to a quotation or offer if its acceptance by the Licensee is confirmed in writing by the Licensee within 14 days, unless stated otherwise.
3.2 Until the time of written acceptance of the Agreement by the Licensee SpamExperts shall never be obliged to provide Services.
3.3 Unless otherwise agreed supplements and/or modifications in the Agreement shall only bind the Parties if they have been agreed in writing, in accordance with everything that has been stipulated in the Conditions.
3.4 In order to be able to use the Services the Licensee must explicitly accept the Conditions. Without assent the Licensee shall not be allowed to use the Services.
3.5 Acceptance of the Conditions shall be effected in writing by means of a statement of agreement.
4. Duration, notice and early termination
4.1 The Agreement shall be entered into for a minimum period of 12 (twelve) months and shall subsequently be extended automatically by the same period, unless notice to terminate the Agreement will be given before the end of the contract period.
4.2 The Agreement for the use of the Services may be terminated before the end of the term in accordance with a notice period of 28 (twenty-eight) days.
4.3 Each party shall be authorized to dissolve this agreement in whole or in part with immediate effect, without further notice of default and without prior judicial intervention, by means of a registered letter to the other party if:
• the other party applies for suspension of payments or is granted suspension of payments;
• the other party applies for bankruptcy or is declared bankrupt;
• the goods made available to the other party within the framework of this agreement are attached and this attachment is not lifted within a reasonable period;
• the other party, also after written demand giving reasonable notice, remains in default to meet his/its obligations from this agreement.
• during a period of more than 90 (ninety) days as a result of force majeure, not including the inability to comply with payment obligations, the other party cannot fulfil his/its obligations or fails to meet his/its obligations pursuant to this agreement or as soon as it has been established that this will take more than 90 (ninety) days.
4.4 By invoking the suspension or dissolution of the Agreement SpamExperts can never be obliged to pay any compensation whatsoever, without prejudice to the right of SpamExperts to claim payment of all outstanding invoices for services provided to the Licensee, which payments shall become fully due and payable at that point in time.
INVOICING AND PAYMENTS
5.1. The prices for the Services shall depend on the number of Licenses and the License type.
5.2. SpamExperts shall invoice periodically for the number of Licenses provided.
5.3. SpamExperts shall use in quotations and other offers rates in Euros or US Dollars, exclusive of 21 % turnover tax and other levies imposed by the authorities.
5.4. SpamExperts shall reserve the right to adjust prices and rates during the Agreement if modifications are imposed on it by the authorities. In that case the modification shall be passed on with effect from the date on which the modification imposed by the authorities takes effect.
6. Invoice and payment conditions
6.1 Only payment of the invoice by transfer in the indicated manner in exchange for adequate proof of payment shall result in discharge of the Licensee. Payment of the invoice must be effected at the latest within 14 days after its date.
6.2 If the invoice is not paid within the period of the previous paragraph, the Licensee shall owe the statutory interest after the expiry of the payment period and after receiving proper notice of default. The interest on the amount due and payable shall be calculated from the time that the Licensee is in default until the time of payment of the full amount.
6.3 If the Licensee cannot agree with the amount invoiced by SpamExperts, the Licensee shall be obliged to notify SpamExperts in writing immediately, but no later than 14 days after the date of the invoice, stating the reasons. Failure to do so will render the invoice irrevocable.
6.4 The Licensee shall on no account be entitled to settle the invoice with any claim that the Licensee has on SpamExperts, by virtue of any reason whatsoever.
6.5 If the Licensee fails to pay the invoice sent by SpamExperts in time, SpamExperts shall be entitled to suspend or discontinue the obligations that ensue for it from the Agreement or to dissolve the Agreement by means of an extrajudicial statement. If the relevant situation occurs the remedies mentioned shall be at the discretion of SpamExperts and the remedy chosen shall be without prejudice to the right of SpamExperts to demand performance or compensation of the damage suffered as a result of the suspension or dissolution.
6.6 In the event that the Licensee is at risk to get into a state of liquidation, bankruptcy or suspension of payments, Licensee’s obligations shall be immediately and fully due and payable.
6.7 If the Licensee is in default in respect of the fulfilment of his/its obligations, SpamExperts shall be entitled to pass on all the costs that it has to incur to collect its claim on the Licensee including the costs of assistance in and out of court. Without prejudice to the right of SpamExperts to claim the actually incurred extrajudicial costs the compensation shall amount to 15 % of the principal sum. SpamExperts shall not owe any proof vis-à-vis the Licensee in this respect.
6.8 Regardless of the purpose that the Licensee will give to it, each payment by Licensee to SpamExperts shall serve first of all to reduce the costs as described in the previous paragraph, subsequently to reduce the arrear interest and finally to pay the principal sum and the accrued interest.
7.1 As far as the performance of the Agreement is concerned the Licensee shall be obliged to render assistance to SpamExperts.
7.2 If the data required for the performance of the Agreement have not been provided to SpamExperts in due time or if the Licensee does not meet the obligations that rest on him/it by virtue of the Agreement in another manner, SpamExperts shall be entitled to suspend the obligations arising from the Agreement for a similar period.
7.3 If the Licensee is not able to render the assistance referred to in the first paragraph of this article, he/it shall be obliged to notify SpamExperts immediately stating the reasons.
7.4 Without prior written permission of SpamExperts the Licensee shall not be authorized to transfer the rights or obligations ensuing from the Agreement in full or in part to third parties.
8.1 The Licensee shall be entitled to terminate the Agreement in writing within 30 days after the commencement date of the Agreement if he/it is not satisfied about the Services.
8.2 If termination takes place pursuant to the previous paragraph, the Licensee shall receive back the fee already paid for the Services within 14 days after the termination mentioned in the previous paragraph.
8.3 SpamExperts shall manage or provide the Services in the present condition and with all existing errors. Unless explicitly agreed otherwise SpamExperts rejects all other guarantees and efforts, especially but not limited to any (possible) implicit guarantees, obligations or conditions of marketability, of suitability for a specific purpose, of the absence of viruses, of the speed of handling e-mail, privacy, of results, of absence of negligence and lack of professional efforts.
8.4 SpamExperts guarantees that the Software functions on the recommended configurations. SpamExperts will not provide guarantees concerning the functioning of the Software on additional configurations other than those recommended.
9. Use of License and Services
9.1 The Licensee shall refrain from infringing the rights of third parties by means of the License and/or the Services.
9.2 The Licensee shall refrain from accessing the Software in any other way than by means of the interface that SpamExperts makes available as a standard and shall in no way remove or evade the security features of the Software.
9.3 The Licensee shall not undertake any activities that disturb or interrupt the Services (also including the servers and networks for the benefit of the Services).
9.4 Without explicit, prior written confirmation, the Licensee shall refrain from multiplying, (re)selling or trading the services or any derived form thereof.
10. Fair use
10.1 A fair use policy shall apply to the use of the Services.
10.2 SpamExperts reserves the right to attach maximum limits to the Services if and in so far as the use is not proportionate to the agreed consideration.
11. Responsibility for safety critical applications
The Licensee shall be allowed to use the Services at its own risk and responsibility for safety critical applications, such as medical systems. SpamExperts shall never be responsible or liable for any damage (of whatever nature) if the Services for the said applications are used by the Licensee .
12. E-mail traffic of Licensee or third parties
12.1 SpamExperts shall be entitled to store, modify, inspect, use the e-mail messages classified as spam (or reported as (non-)spam) and to share them with or transfer them to third parties. For this purpose the Licensee shall grant SpamExperts a license and guarantees SpamExperts that the license can be granted. The Licensee shall indemnify SpamExperts from any claims of third parties in respect of the said license.
12.2 SpamExperts shall make efforts to take measures in order not to store or inspect the e-mail messages that are not designated as spam. If necessary for technical reasons or for the improvement of the software and/or the Services SpamExperts shall be entitled to inspect the e-mail messages or to use them. The contents shall be treated confidentially.
12.3 The Licensee declares that SpamExperts shall not be liable for any loss or any damage that the Licensee may suffer as a result of the non-availability, incorrectness or incompleteness of the Software and/or Services.
13.1 Access to the Services shall be provided in a manner to be determined by SpamExperts.
13.2 For access to the Services an Account is required.
13.3 The Licensee must provide the requested identification or contact details in order to receive an Account. The Licensee shall ensure that all registration information provided by it to SpamExperts is complete, correct and up-to-date.
13.4 The Licensee shall be fully responsible for the correct use of the user names and Passwords. SpamExperts cannot be held liable for abuse and any damage ensuing from it.
14. Right of use
14.1 SpamExperts shall grant Licensee a personal, non-transferable and non-exclusive License to use the Services. The License shall only be provided to the Licensee to enable him/it to use the Services in the manner as determined in these Conditions.
14.2 The Licensee shall not be permitted to copy, modify, redevelop, analyze, subject to reverse engineering, decompile the Software – or any part of it - or to retrieve its source code or to make derived works from it or give third parties the possibility to do so.
14.3 Unless SpamExperts has granted Licensee explicit permission, the Licensee shall not be allowed to transfer rights related to the Services, to grant a sublicense for it, to provide security, to transfer the user rights on the Services in full or in part or to give them in use to third parties.
14.4 The Licensee shall not be permitted to transfer any right from an Agreement concluded with SpamExperts to third parties, otherwise than by transfer of his/its entire enterprise.
15. Installed Software
15.1 Upon termination or early dissolution of the Agreement the Licensee shall give SpamExperts an opportunity to remove all the Software installations and the corresponding manuals from Licensee’s servers.
15.2 SpamExperts shall not charge extra costs to the Licensee unless this is necessary for the proper functioning, repair, maintenance or recovery of the Software as a result of a circumstance that is attributable to the Licensee.
15.3 If as a result of hardware errors on the part of the Licensee a reinstallation of the Software is necessary SpamExperts shall charge costs in arrears for each installation of the Software.
15.4 If the Licensee wishes to move the Software to other servers or to extend the cluster of the servers, SpamExperts shall charge costs in arrears for each newly installed server.
15.5 If the Software has been installed on a server of the Licensee and the server is not accessible for more than 7 days and/or SpamExperts is not able to manage the software in a correct manner and to keep it up to date, the Software must be uninstalled and subsequently be reinstalled. SpamExperts shall charge costs in arrears for this for each reinstallation.
16. Browser compatibility
If the Licensee uses an internet browser that is not or insufficiently compatible with the Services, the Licensee shall use the internet browser recommended by SpamExperts.
17. Development, updates, maintenance and management
17.1 For the benefit of the Licensee SpamExperts will continuously innovate its Software and Services. The form and nature of the services to the Licensee may change as a result. The Licensee shall agree explicitly that the form and nature of the Services may change and gives SpamExperts permission to modify this without prior written announcement, provided that the nature and the functionality of the Services improves as a result.
17.2 At the discretion of SpamExperts the Services for which the Licensee uses a License may be provided with updates without prior announcement. These updates are intended to improve, extend and further develop the Services and may be published in the form of improved functionalities, Bug Fixes, modified interfaces, new modules, integration of supplementary applications and completely new versions. The Licensee shall give SpamExperts permission to perform updates and to receive them as part of the use of the Services.
17.3 SpamExperts shall be entitled to modify the Software continuously to improve the functionality and to remedy errors. Because the Services are provided to various Licensees it will not be possible to abandon a specific modification for the Licensee alone. SpamExperts shall not be obliged to compensate any damage when the Software is modified.
17.4 In urgent cases SpamExperts shall be entitled, without prior announcement, to disable the Services or the Software for this (temporarily) or to restrict its use in so far as this is necessary for the reasonably required maintenance or for the necessary modifications or improvements to be performed by SpamExperts, without creating an entitlement to compensation of the Licensee in respect of SpamExperts as a result. SpamExperts will endeavour to restrict the nuisance as a result of this suspension to a minimum.
18. Service provisions
18.1 The Services shall be provided „as is”. SpamExperts will endeavour to achieve the results envisaged by the Licensee.
18.2 SpamExperts will aim at sufficient physical security of the hardware used by SpamExperts in accordance with state-of-the art technology.
18.3 SpamExperts will aim at a sufficiently and logically secured environment for the use of the Services.
The Licensee shall ensure the accessibility of the contact persons in accordance with the sequence in which they have been described when entering the Agreement. In the event of a calamity SpamExperts may contact the relevant contact persons to inform them about the possible threats to the system.
20. Complaints about additional activities
20.1 If SpamExperts provides additional Services to the Licensee for the benefit of the Services, the Licensee shall be obliged to check these activities after the delivery at a time yet to be determined.
20.2 Complaints about the Services (unreachability or inaccessibility) or (additionally) performed activities must be notified by the Licensee to SpamExperts immediately in writing or by e-mail , but at the latest within 3 working days after discovery of the imperfections, stating a detailed description of the shortcoming.
21.1 Any form of (external) contractual liability of SpamExperts on the basis of an error in the performance of the Agreement attributable to SpamExperts shall be restricted to compensation of the direct damage up to a maximum of 50% of the amount that is equal to the fee agreed upon for the Agreement per year.
21.2 In accordance with the provisions in the previous paragraph SpamExperts shall never be liable in respect of the Licensee for:
1) any indirect or consequential damage that the Licensee may suffer. This includes any loss of sales or profit, loss of goodwill or business reputation or any loss of data that the Licensee suffers;
2) any loss or any damage that the Licensee may suffer as a result of:
a – modifications that SpamExperts applies to the Services or the permanent or temporary discontinuation of the Services or parts thereof;
b – Licensee’s confidence in the completeness, accuracy and correctness of the messages shown by SpamExperts;
c – the incorrect or irregular use of the Services, the Account and/or the User ID and Password..
21.3 Direct damage within the meaning of the first paragraph shall mean reasonable costs:
a – for the determination of the cause and the size of the damage, in so far as the determination relates to the damage within the meaning of these Conditions;
b – for the prevention or restriction of damage in so far the Licensee demonstrates that these costs have resulted in restriction of the direct damage as referred to in these general conditions.
21.4 If the damage has arisen as a result of the fact that the Licensee has provided incorrect information or an incomplete representation of the facts or in any other manner is the result of acts or omissions of the Licensee, every form of liability of SpamExperts shall be excluded.
21.5 The Licensee shall be obliged to report errors of SpamExperts to SpamExperts immediately in writing, but at the latest within 30 days after the Licensee could have reasonably been aware of the error. Neglect of this obligation shall result in forfeiture of the right to compensation within the meaning of this article.
22. Force Majeure
22.1 If and in so far as SpamExperts is unable to fulfil the obligations from this Agreement as a result of force majeure, SpamExperts shall be entitled to abandon this Agreement in full or in part or to suspend its performance without being obliged to any compensation in respect of the Licensee.
22.2 Without prejudice to section 6:75 of the Dutch Civil Code force majeure shall mean any circumstance whose cause lies beyond the control or actions of SpamExperts that result in the fact that performance of the Agreement by SpamExperts cannot reasonably be desired. This includes disruptions or breakdowns of the Internet, the telecommunication infrastructure, of any operator or internet service or access provider, the full staffing of dial-up lines or insufficient bandwidth of an access provider, domestic disturbances, mobilization, war, congestion of transport facilities, strike, lock-out, business interruptions, delay in supplies, fire, flooding, import and export restrictions and in the event that SpamExperts is unable to deliver on account of its own suppliers, regardless of the reasons, as a result of which performance of the Agreement cannot be reasonably required from SpamExperts.
23. Intellectual property
23.1 The Services/Software and everything produced by SpamExperts fall directly under the protection of the copyright and all possible other rights of intellectual or industrial property. The rights shall be solely due to SpamExperts and/or its licensors.
23.2 The Licensee shall indemnify SpamExperts unconditionally for the claims that third parties may have on SpamExperts by virtue of Agreements between Licensee and SpamExperts, as a result of a wrongful act of the Licensee in respect of those third parties.
23.3 The Licensee shall not remove, render illegible or change ownership marks that are attached to the Software and/or Services.
23.4 Any use, multiplication or publication of the materials that fall outside the tenor of the Agreement or the user rights granted shall be considered an infringement of the copyright. The Licensee shall pay to SpamExperts an immediately payable penalty of 10,000 euros, not subject to judicial mitigation, for every act of infringement, without prejudice to the right of SpamExperts to receive compensation for the damage suffered by it on account of the infringement or to be allowed to take other legal measures in order to terminate the infringement.
24.1 During and after termination of an assignment or Agreement the Licensee and Spam Experts shall (continue) to deal confidentially with everything that has come to the knowledge of the parties as confidential information and shall not provide these data to third parties, unless this is reasonably necessary for the performance of the Agreement or otherwise. Information shall be considered confidential as this has been notified by the other party or if this follows from the nature of the information.
24.2 If by virtue of a statutory provision or a judicial decision SpamExperts shall be obliged to provide confidential information to third parties designated by the law or the competent court and it cannot rely on a right of non-disclosure, it shall be entitled to cooperate in such a request. In that case SpamExperts cannot be obliged to pay the damage that results from its cooperation and the Licensee shall neither be entitled to dissolve the Agreement.
The Parties shall be mutually entitled to mention the other Party as a reference and to use one another’s logos.
26. About these conditions
26.1 These conditions have been filed with the Chamber of Commerce in Maastricht (the Netherlands).
26.2 SpamExperts shall be entitled to modify or supplement its General Conditions before the end of the term. Modifications shall come into effect thirty (30) days after the date of announcement or at a time yet to be specified. The Licensee shall be notified in writing about a modification within the meaning of this article. Subject to a notice to the contrary within 30 days after the date of announcement the Licensee shall be deemed to accept the changed Conditions automatically.
27. Applicable law
27.1 All the Agreements between the Licensee and SpamExperts shall exclusively be governed by Dutch law and only the Dutch Court shall be competent to take cognizance.
27.2 If and in so far as the Licensee is not established in the Netherlands, he/it shall choose as address for service a lawyer in Amsterdam in the event that a dispute arises between the parties.
27.3 In so far as the law does not mandatorily prescribe otherwise all disputes arising from the Agreements concluded with SpamExperts shall be submitted to the competent court in Amsterdam.
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