Openprovider General Terms and Conditions
Version 3 - Date: 1 September 2019
Article 1. Definitions
- Openprovider: a trade name of Hosting Concepts B.V., established in Rotterdam and listed in the Trade Register of the Chamber of Commerce under file number 24277249.
- Services: Openprovider is an official domain name registrar. In this capacity, Openprovider offers access to its automated systems for domain name registration and administration. Openprovider registers domain names on a first-come, first-served basis. The aforementioned activities constitute basic services. Openprovider also supplies SSL certificates, software, DNS and other Internet services.
- Client: the natural person acting in a professional capacity or legal entity having entered into an agreement with Openprovider. The Client may also be a retailer. For the purposes of these General Terms and Conditions, retailers will be referred to as ‘Reseller’. Resellers are subject to supplementary terms and conditions.
- Account: the online environment made available by Openprovider for the purpose of enabling the Client to apply for, administer or configure Services. Amongst other channels, this environment can be accessed via the Website or API.
- Licenses: the right to use software owned by one of Openprovider’s suppliers or by Openprovider itself.
- Agreement: the agreement between Openprovider and Client by virtue of which Openprovider will provide the Services, and of which these General Terms and Conditions are a part.
- Website: www.openprovider.com or any of its sub-domains and other domain extensions.
- General Terms and Conditions: these terms and conditions.
- Knowledge Base: the database containing documents and (registry) policies available on: http://support.openprovider.eu/hc/en-us.
- Fair Use Policy: rules of conduct to ensure that all customers can use the services of Openprovider without interruption. The Fair Use Policy is available for download from the Website.
Article 2. Offer and acceptance
- The Agreement between Openprovider and the Client will take effect when the Client (1) creates an Account on the Website, (2) places an electronic order via his Account which is subsequently confirmed or (3) accepts an offer issued by Openprovider. Any such offers must be signed by Openprovider. Openprovider requires the Client to check the order confirmation and to contact Openprovider within eight hours if any errors are to be verified.
- If an order can only be partially filled, the Client is expected to agree to a partial delivery.
- The due amount will be specified on the Website and during the process of ordering via the Account. The description of the Services as featured on the Website or specified in the offer will be binding. Upon renewing Services automatically or otherwise, Openprovider will notify the Client of the rates applicable at that time.
- Openprovider may draw up an offer in which it specifies what the Service includes and what amount will be owed upon acceptance of the Agreement.
- An offer is without obligation and is valid for 30 days after the date it was sent by Openprovider, unless stated otherwise in the offer.
- If the information provided by the Client proves to be incorrect, Openprovider has the right to adjust the prices accordingly.
- Provisions or terms and conditions stipulated by the Client that differ from, or do not appear in these General Terms and Conditions will only be binding upon Openprovider if and to the extent that these have been expressly accepted by Openprovider in writing.
- Openprovider is entitled to refuse a Client at its own discretion without stating reasons.
- The Agreement will take effect as soon as Openprovider has received notification of acceptance by the Client.
- In the event provisions in the Agreement or its appendices, or in these General Terms and Conditions are inconsistent with one another, the following order of rank applies:
– the Agreement;
– any Appendices;
– any Service Level Agreement;
– the General Terms and Conditions;
– any supplementary conditions.
Article 3. Performance of the Service
- After the Agreement has been concluded, Openprovider will perform the Services as soon as possible in accordance with the offer or electronic order.
- To the extent it has not been otherwise agreed in writing, Openprovider will guarantee that the Service will be performed to the best of its ability with due care and professional competence.
- If and where required for the proper performance of the Agreement, Openprovider has the right to have certain activities performed by third parties.
- The Client is obliged to do everything that is reasonably required and desired to ensure that the Service is performed correctly in a timely manner. In particular the Client will ensure that all information designated by Openprovider as essential or in respect of which the Client should reasonably understand that it is required for the purpose of performing the Services, is provided to Openprovider in a timely fashion.
- If the above forms part of the Services, Openprovider will provide the Client with an administrative user name and a password. These data will offer the Client access to the Account.
- Each action performed by means of the Client’s Account is deemed to take place under the risk and responsibility of the Client. In the event of suspected misuse of an account, the Client must duly notify Openprovider as soon as possible so that appropriate measures can be taken by Openprovider. The Client is fully responsible for any consequential damages, including user costs and compensations with a minimum of € 2,500, not including VAT.
- The Client is entitled to create users (employees) and provide them access to the Account. This does not affect the responsibility of the Client as described in the previous subclause of this Article.
- The Client must provide all details truthfully. Openprovider is entitled to request that the Client provide proof of the details provided. If the Client cannot provide such proof or the details prove to be incorrect, Openprovider is entitled to terminate its Agreement or Agreements with the Client with immediate effect and to delete the Client’s Account. The above will not require the intervention of a competent court.
- The Client is obliged to read its email on a regular basis: at least once every two weeks, but more frequently if required for the purposes of the registry procedure. If an addressee’s email inbox is full, Openprovider is entitled to return emails to the sender.
- The Client declares that it is familiar with and, if applicable, accepts the documents incorporated in the Knowledge Base, including (but not limited to) the rules of conduct and the applicable (registry) conditions.
- Openprovider has the right to take products and services out of use, temporarily or otherwise, and/or to limit their use, or to provide these only to a limited extent, or not at all, if the Client does not fulfil an obligation towards Openprovider as stipulated in the Agreement or acts in breach of these Terms and Conditions.
Article 4. Resellers
- Insofar as the Services extend to the resale or lease or otherwise to the provision for a fee of Openprovider products or services by the Reseller to its customers, the provisions in this article also apply.
- When engaging in Resale activities, the Reseller will act in its own name and at its own expense and risk, and is not entitled to enter into any agreements for or on behalf of Openprovider, or give the impression that it is a representative or agent of Openprovider. The Reseller will fully cooperate with any customer requests to provide the identity of the registrar (Openprovider).
- The Reseller is free to determine which products and services it provides to its customers at which price, within the boundaries set out by Openprovider in the offer.
- As regards the products and services provided to its customers, the Reseller must – at minimum – impose the same obligations upon its customers as those to which it is subjected by Openprovider. Openprovider may request that the Reseller provide proof to this effect.
- The Reseller is obliged to inform its customers of Openprovider’s identity by means of the registration agreement, or offer them a way of identifying Openprovider such as a link to the InterNIC Whois service.
- In the event that customers fail to pay or fail to do so in a timely fashion, this will not discharge the Reseller from its payment obligations towards Openprovider.
- Openprovider will not contact any Reseller’s customers directly unless required by the policies of ICANN, the registry or another party, or unless there are urgent grounds to do so (at the sole discretion of Openprovider) or the Reseller has granted permission for direct contact. Damages (or the threat thereof) and inconvenience to third-parties as a result of the activities undertaken by Reseller customers or the Reseller itself are regarded as grounds for such direct contact. If customers of the Reseller approach Openprovider in any way with a request to implement modifications, and the Reseller itself failed to respond appropriately to those requests, Openprovider shall be entitled to implement the requested modifications (or arrange for them to be implemented), at its own discretion, in the name of the Reseller and for the account and risk of the Reseller. The Reseller shall fully indemnify Openprovider against any claims that Openprovider might receive in this connection.
- In its promotional or commercial communications, the Reseller is not entitled to use any trade names, brand names, logos or signs owned by Openprovider with the aim of using Openprovider’s goodwill or good name to recruit customers without the prior written permission of Openprovider. The Reseller is entitled to communicate its use of Openprovider products and services in a businesslike manner.
- The Reseller is fully liable at all times for its customers’ actions and omissions via Openprovider systems and networks, or those of its suppliers, and indemnifies Openprovider in this regard.
- In the event that the Agreement is dissolved or terminated due to non-performance by the Reseller, Openprovider will acquire the right to approach, inform and acquire Reseller customers.
- The Reseller is not entitled to use the ICANN or “ICANN-Accredited Registrar” logo nor any logo of other registries or otherwise present itself as an ICANN-accredited organisation or another registry accredited organisation, unless written permission to this end has been granted by the respective entity.
- In case the Reseller manages one or more domains under a so-called generic Top Level Domain (gTLD, for example .com), the following clauses apply:
– All agreements between the Reseller and its customers must meet the conditions set out in the latest version of the “ICANN Registrar Accreditation Agreement” and other “ICANN Consensus Policies”. The Reseller can consult these conditions via (http://www.icann.org/en/about/agreements/registrars). The Reseller hereby declares that it is familiar with and will adhere to these conditions and the ICANN regulations. The Reseller also declares that it will regularly visit the ICANN website to consult the latest terms and conditions/regulations.
– The Reseller is obliged to include a link to ICANN’s general terms and conditions and website in the footer of its website, which can be accessed via each page. This link should redirect to the following pages (http://www.icann.org/en/registrars/registrant-rights-responsibilities-en.htm) and (http://www.icann.org/en/resources/registrars/registrant-rights/benefits).
– The Reseller is obliged to inform its customers about its Deletion and Auto-Renewal Policy. Reseller customers must be immediately informed of any important changes to this policy
– The Reseller may only extend agreements without the permission of its customers in the event of extenuating circumstances, as referred to in the ICANN Registrar Accreditation Agreement.
– The Reseller will cooperate fully with any requests from Openprovider or ICANN to offer more information on ICANN regulations via its website or websites. This cooperation will also extend to the implementation of any terms and conditions imposed upon Openprovider by ICANN. The Reseller agrees that the aforementioned terms and conditions may be unilaterally imposed, and with immediate effect.
- If the Reseller acts in violation of the terms and conditions applied by ICANN or these general terms and conditions, Openprovider is entitled to terminate its agreement with the Reseller with immediate effect and transfer its domain customers to Openprovider in order to ensure the continuity of the services provided to these (end) users.
- The general terms and conditions to which Reseller customers are subject may not conflict with the terms and conditions applied by Openprovider, ICANN, the various Registries or the vendors of the respective product or service.
- The Reseller is obliged to apply the terms and conditions specified in this article to its resale agreements and any underlying agreements.
- Openprovider is entitled to audit the Reseller in order to make sure the terms of the Agreement are being adhered to.
Article 5. Service: Licenses
- If the Service provides, in full or in part, for Openprovider mediating on behalf of the Client for the acquisition of one or more Licenses, or the issue of licenses by Openprovider itself, the provisions in this article will also apply.
- The Client gets acquainted with and accepts any additional terms or license agreement published by the supplier of the License. Non-compliance may lead to cancellation of the License.
- All intellectual property rights to any materials, software, analyses, designs, documentation, recommendations, reports, offers and preparatory materials developed or made available in connection with the Service are vested exclusively in Openprovider or its suppliers.
- The Client solely acquires the rights of use and powers arising under the Agreement or those assigned in writing, and in all other respects the Client will not reproduce of or publish the software or materials.
- The Client is not permitted to remove or modify any markings concerning copyrights, trademarks, trade names or other intellectual property rights from the materials, including markings concerning the confidential nature and secrecy of the materials.
- Openprovider is authorised to put technical measures in place to protect the software. If Openprovider has protected the materials by means of technical protection, the Client is not permitted to remove or circumvent the relevant protection.
- Any use, reproduction or publication of the works falling outside the scope of the Agreement or rights of use that have been granted are deemed as copyright infringement. The Client will be liable to a penalty due and payable immediately to Openprovider amounting to € 10,000 for each act of infringement, without prejudice to Openprovider’s right to receive compensation for damage or loss as a result of the infringement or to take other legal action for the purpose of terminating the infringement.
Article 6. Service: SSL certificates
- If the Service provides, in full or in part, for Openprovider mediating on behalf of the Client for the acquisition of one or more SSL certificates, the provisions in this article will also apply.
- Application and issue depend on and are subject to the regulations and procedures applied by the supplier in aid of which Openprovider is mediating. The relevant supplier will make a decision as to whether to issue the certificate and conduct the necessary validations regarding the SSL certificate’s area of application. The Client will grant permission to this end or guarantee that permission has been granted before applying for an SSL certificate for a specific website.
- The SSL certificate will be valid for the agreed term, unless it is revoked in the interim. In this case, no reimbursements will be granted unless explicitly agreed upon.
- Openprovider and/or the supplier may prematurely revoke the SSL certificate in the following situations:
– If it becomes clear that the Client and/or the Client’s customer have provided incorrect information in order to obtain the SSL certificate;
– If the Client and/or Client’s customer have not paid the costs of obtaining the SSL certificate or have failed to do so within the specified period;
– If Openprovider and/or the supplier deem that the reliability of the SSL certificate has been compromised.
- The Client is not entitled to full or partial reimbursement of the costs of the SSL certificate, unless the revocation is attributable to a failure to perform by Openprovider that was not resolved within a reasonable time frame by Openprovider. Openprovider will then provide a new SSL certificate that is valid for the duration of the Agreement free of charge, in order to replace the SSL certificate revoked prior to its expiration date based on the above grounds.
- Openprovider will endeavour to notify the Client that the SSL certificate must be renewed prior to its expiration date. However, the Client remains responsible for the timely renewal of its SSL certificates.
Article 7. Service: Domain names
- Openprovider registers domain names in its capacity as official registrar. As regards the issue and administration of domains, Openprovider merely acts as an intermediary between the Client and the registry, or any other organisation/company responsible for administering the central database. Openprovider does not have any influence on the domain name distribution process. In view of the fact that third-party rights may be involved, Openprovider is not obliged to guarantee the continuity or existence of any registered domain.
- The Client declares that the domain name and/or use of the domain will not undermine or violate the rights of any third party, and guarantees that there are no impediments to registration of the domain name.
- The various domains are administered by several, generally national, organisations. All these organisations apply their own general terms and conditions regarding the registration of domains and sub-level domains, as well as their own regulations on domain name disputes. If the contractual agreement is to extend to domains, the additional terms and conditions of each gTLD (generic Top Level Domain) and ccTLD (country code Top Level Domain) will apply. These additional terms and conditions will be submitted to the Client for notification in the Knowledge Base.
- All consequences ensuing from violation of the Agreement or the General Terms and Conditions or specific domain contracts will be for the account and risk of the Client. Openprovider cannot be held liable for such consequences in any way.
- If Openprovider registers a domain name on behalf of the Client, Openprovider will honour requests from the Client with respect to moving, transferring or terminating this domain name.
- The Client will, at any moment, cooperate with a transfer request of a domain name registered by the Client or one of its customers. Unless the policies of the respective registry allow for it, the Client will not delay or reject a transfer request to another registrar. This clause also applies in case of a dispute about a payment by the Client, his customer or an underlying party.
- The Client will immediately – but within five calendar days at the latest – notify Openprovider in writing of any changes regarding the domain holder’s details.
- The Registrant explicitly authorizes the Registrar to act as his “Designated Agent” to approve each “Change of Registrant” on his behalf. The Registrant explicitly opts out of the 60-day inter-registrar Transfer Lock after a Change of Registrant. The terms Designated Agent, Change of Registrant and Transfer Lock are as defined in ICANN’s transfer policy (https://www.icann.org/resources/pages/registrars/transfers-en).
- The Client agrees to resolve any conflicts in accordance with the Dispute Resolution Policies applied by the responsible organisations. These regulations can be found in the Knowledge Base.
- The Client accepts Openprovider as an accredited registrar. Depending on the relevant UDRP (Uniform Domain-Name Dispute-Resolution Policy) regulations, this may entail that the Client is obliged to block, cancel, or move or transfer a domain to a third party if it cannot provide evidence that it has initiated legal proceedings against the plaintiff in a mutual legal case regarding the right to use the disputed domain name within ten days after a decision to this end has been issued by the administrative committee.
- The Client grants (in advance or otherwise) Openprovider the right to register the domain name (or arrange for it to be registered) in its own name, or to transfer it (or arrange for it to be transferred), if:
– The Client annuls or terminates the domain name;
– The Client fails, after having received a reminder to that effect, to renew the domain name as of the expiry date; or
– The Client is in default with regard to payment of the renewal costs.
- As soon as the domain name is registered in or transferred to, pursuant to the previous subclause, the name of Openprovider, Openprovider shall obtain the unlimited right to lease, sublicense, sell or otherwise alienate or encumber the domain name, in accordance with the applicable (registry) conditions.
- For the duration of ongoing administrative proceedings, or a 15-day period after the conclusion of such proceedings, or for the duration of a pending legal case or arbitration period regarding the domain name, the Client is not entitled to transfer the domain name registration to a third party, unless this third party confirms in writing that it will abide by the court ruling or arbitration.
- Openprovider does not have any control over the registration of IDN domain names (Internationalized Domain Names) and the service may be modified, interrupted or even terminated by the registry without prior notification. Openprovider is not obliged to guarantee the continued existence or availability of IDN domain names; registration is at the Client’s own risk. The Client acknowledges that the operation of multi-language domains differs from normal domains. The Client also acknowledges that an IDN may not function at all due to the continual introduction of new technologies.
- Any IP addresses made available to the Client will remain under the administration of Openprovider and are non-transferable in the event that the Client chooses to move/terminate the registration. Furthermore, multiple Openprovider clients may operate under the same IP address.
- Openprovider is entitled to change an IP address or allocate a different address to the Client at all times.
Article 8. Availability of the Service
- Openprovider will make every effort to ensure uninterrupted access to its systems and networks and to the data it has stored but is unable to offer any guarantees in this regard, unless otherwise agreed in the offer or electronic ordering procedure by means of a Service Level Agreement (SLA). To the extent not provided for otherwise in an applicable SLA, availability is subject to the provisions of this article.
- Openprovider will make every effort to keep the web server and other software it uses up to date. To this end, however, Openprovider is dependent on its suppliers. Openprovider is entitled not to install certain updates or patches it if believes installing such updates or patches will not be beneficial to the Service.
- Openprovider will undertake to ensure that the Client can make use of the networks that are either directly or indirectly connected to the Openprovider network. However, Openprovider cannot guarantee that these (third-party) networks will be available at any time.
- Openprovider will make back-ups available to the Client on a daily basis, if this is offered as part of the Service. If this is not the case, the Client will be fully responsible for making back-ups of any data stored by Openprovider.
Article 9. Abuse
- The Client will not use the services of Openprovider for purposes that are in conflict with these General Terms and Conditions, the regulations of the relevant suppliers, the regulations of ICANN or national or international legislation.
- If, in the opinion of Openprovider, the operation of Openprovider’s computer systems or network or third-party networks and/or service provision via a network is at risk, in particular as a result of sending excessive amounts of email or other data, sending excessive amounts of Service Requests (including, but not limited to, drop catching of domain names), inadequate security systems or virus activities, Trojan horses and similar software, Openprovider has the right to take all reasonable measures it deems necessary to avert or prevent such risk. Our Fair Use Policy applies to this Agreement.
- The Client will not use the Services of Openprovider to register domains that facilitate the following practices; if the Client discovers that one of its registered domains facilitates these practices, he will make every effort to solve the problem as soon as possible, possibly by deactivating or terminating the domain name. If Openprovider can reasonably demonstrate that a domain name has been registered for the sole purpose of facilitating one of these practices, Openprovider reserves the right to deactivate or cancel the domain name in question.
– Operating or facilitating a botnet; facilitating phishing activities; spreading viruses, malware or similar matters.
– Hosting or facilitating unlawful or reasonably deemed unlawful content, including referring to such content.
– Offering, selling or advertising products and services that contravene applicable laws and regulations, such as (but not limited to) weapons and pharmaceutical products.
– Intentionally infringing the rights of third parties, including a personal name, trade name or brand name.
- Complaints that Openprovider receives about a product or service under the control of the Client will be forwarded to the Client. The Client must send the complainant a response with a copy to firstname.lastname@example.org within five working days. If this response is not sent, Openprovider reserves the right to take action at its own discretion to solve the problem.
- In the event of an excessive number of complaints about products or services under the control of the Client and no effective action being taken to reduce the number of complaints, Openprovider may decide to terminate the Agreement. Furthermore, Openprovider reserves the right to charge the time needed to handle the complaints at the regular hourly rate.
Article 10. Data and privacy
- The Client assures Openprovider that all submitted information and data is accurate and complete. In the event of any modifications to the Account, the Client also assures Openprovider that these modifications are complete, accurate and truthful. The Client acknowledges that the provision of inaccurate data may result in the immediate removal of the relevant domain without any reimbursements. In particular, this concerns:– the Client’s full name, postal address, email address, telephone number, and fax number if available – if the registrar is an organisation, association or business
– additional details (name and address) for an authorised contact person;
– if the Client is planning to use its own Domain Name Server (DNS): IP addresses for the first and second servers;
– the names of the aforementioned servers;
– the full name, postal address, email address, telephone number and fax number if available, of the administrative contact person;
– the full name, postal address, email address, telephone number and fax number if available, of the technical contact person;
– the full name, postal address, email address, telephone number and fax number if available, of the invoice address; This information must be adjusted if necessary.
- Openprovider will inform the Client that the domain registration process, as well as the ordering process of other Services, involves the storage and processing of personal details, and that personal data may be transferred to third parties involved in the registration and/or order process. The registration process also includes the storage of personal data in the ‘whois’ database.
- Openprovider is authorised to use data for the purpose of optimising its services and tailoring its services more effectively to the Client’s needs.
- Openprovider will ensure an appropriate level of security considering the risks involved in processing the data to be protected and the nature thereof.
- Openprovider will also guarantee that all persons acting under its authority, to the extent they have access to personal data for which the Client is responsible, will only process such data on the instruction of the Client, subject to statutory obligations to the contrary.
- The Client guarantees that it will only enter personal data in Openprovider’s systems in a manner that is fully compliant with the law.
- If the Client is required to adjust, delete or hand over data stored in Openprovider’s systems within the context of a legal obligation pursuant to the Personal Data Protection Act, for instance, Openprovider will facilitate this activity to the best possible extent. The costs of the relevant activities may be invoiced separately.
Article 11. Duration and end
- The term of this Agreement shall start from the effective date hereof and will automatically renew until termination.
- Openprovider is entitled to terminate the Agreement with immediate effect if:
– payments are revoked before the due amount can be collected by Openprovider;
– the Client violates the General Terms and Conditions;
– applicable laws or ICANN regulations are violated;
– any actions are performed that violate the General Terms and Conditions of the registration or its requirements.
- In all the aforementioned cases, the Client will lose all its registration rights.
- The duration of Agreements on the Service may vary depending on the relevant product or service.
- The Client will receive a request to pay for any Service or Membership via email, no later than 28 days before the end of the validity period. If payment has not been received before this due date, the Client will lose all rights to the Service. If the Client is making use of automatic renewal functionality, it will be fully responsible for ensuring that there are sufficient funds in its account. Services that cannot be renewed due to insufficient funds or any other reason will be discontinued.
- Memberships will be automatically renewed on the Membership’s anniversary date or in case the Membership runs out of operations, whichever comes first. The upgrade and downgrade to another plan are possible at any moment in time. In case of upgrade or downgrade, the full price of a new plan is charged, and the operations left in existing Membership (if any) are not added to the newly activated Membership.
- In the event that a Service is terminated by the Client or as the result of a ruling in a dispute, the Client will not be entitled to a substitute Service or restitution. If the termination is not the result of an intentional act or gross negligence by Openprovider, no restitutions will be made. This also applies to other activities or additional registered options.
- If Openprovider cannot maintain the registration of a Sub-Level Domain in accordance with the conditions of the relevant registry, Openprovider is entitled to terminate the contract in writing no later than 14 days before the end of the relevant month.
- In the event that Openprovider ceases to act as officially accredited registrar, Openprovider is entitled to terminate contracts in writing, no later than 14 days before the end of each month.
- If the Service cannot be terminated according to the terms and conditions and/or rules of a supplier involved, Openprovider is entitled to charge the costs relating to the extension to the Client. The above also applies if the Service cannot be terminated due to a legal provision or court order.
- Unless the automated systems of Openprovider offer another option, all cancellations, terminations and notifications must be submitted in writing by the Client.
Article 12. Rates and payment
- All prices exclude VAT.
- Rates for Openprovider Services are published on the Website or on a closed portal of the Website and/or the Service (e.g. the “Reseller Control Panel”); these rates are subject to change without further notice.
- Domain names renewal rates exclusively apply to renewals that are being processed at the time; all future renewals will be charged against applicable rates on the day of renewal.
- The Client declares that it is aware that the rates for applying for and renewing domain names are variable for certain domain names in a Top Level Domain and differ from other domain names within a Top Level Domain. This is the case, for instance, for “Premium Domain Names”.
- In case the actual price of a product or service is higher than the price communicated during the order, Openprovider will ask the Client for approval before processing the order at the higher price.
- If a registry and/or another supplier increases the prices for a specific extension or other product or service, Openprovider is entitled to pass on this increase to the Client, without the Client being able to terminate the Agreement.
- If the Agreement is a continuing performance agreement, Openprovider has the right to change the rates applied at any time. To that end, Openprovider will inform the Client of the rate changes via the website or by email at least two (2) weeks in advance. In the event of a rate increase, the Client is entitled to terminate the Agreement, with due observance of a notice period of one (1) month.
- Openprovider is entitled to raise all rates agreed upon with the Client by 4% per year on 1 January, without the Client being entitled to give notice of termination.
- Payments may be made via credit card, a one-off direct-debit authorisation or other specific payment methods such as an iDeal payment or bank transfer.
- Services cannot be registered until payment has been received. The registration will be processed as soon as the due funds have been transferred to Openprovider’s bank account. All transaction costs will be borne by the Client.
- The Client agrees that it will lose all rights to a domain name if the due charges are reversed by the bank or credit card company, in the event of proven credit card fraud or any other form of chargeback. In such cases, Openprovider reserves the right to decide whether to continue administering or terminate the domain name.
- The Client agrees to electronic invoicing. If the Client wishes to receive an invoice by regular mail, Openprovider will charge € 3 for the postage of each letter.
- The costs of domain name registration and other costs will not be refunded in the event that a contract is terminated prematurely.
- Advance payments for domains that could not be registered will be credited to the Client’s outstanding balance.
- The Client is responsible for ensuring that its bank account contains sufficient funds. In the event of insufficient funds, Services cannot be purchased or automatically renewed.
- The Client must anticipate day-to-day exchange rate fluctuations. In order to cover the costs that may arise for Openprovider as a result of exchange rate fluctuations, Openprovider is entitled to adjust the prevailing exchange rates, as applied by the European Central Bank, by a percentage of 3%.
- All full or partial outstanding balance repayments will be subject to a € 25 administration fee. These administration costs will also be withheld in the event that the contract is terminated.
Article 13. Liability
- Openprovider’s liability for direct damages/losses incurred by the Client as a result of a culpable shortcoming in Openprovider’s performance of its obligations under this Agreement, which also expressly includes any shortcoming in fulfilling a guarantee commitment agreed with the Client, or an unlawful act on the part of Openprovider, its employees or third parties engaged by Openprovider, is limited to a sum equal to the payments the Client is obliged to make under this Agreement each year (excluding VAT) for each event or series of related events. Under no circumstances however will the total compensation to be paid for any direct damages/losses exceed a sum of € 10,000 (not including VAT).
- Openprovider’s liability for indirect loss or damage, including consequential losses, loss of profit, lost savings, mutilation or loss of data, business or otherwise, and losses due to business stagnation is excluded.
- Except for the cases referred to in Article 12, paragraphs 1 and 2, Openprovider will not be held liable to pay compensation for damage/loss whatsoever, regardless of the grounds on which an action for compensation might be based. The maximum amount specified in Article 12, paragraph 1, will, however, cease to apply if and insofar as the damage or loss is the result of an intentional act or gross negligence on the part of Openprovider.
- Openprovider’s liability for an attributable failure to perform the Agreement will only arise if the Client gives Openprovider proper notice of default in writing without delay and provides a reasonable period to remedy its failure, and Openprovider does not resolve this attributable failure to perform its obligations after that period. The notice of default should contain a description of the failure in as much detail as possible to enable Openprovider to respond adequately.
- The Client may not invoke Section 6:271 of the Dutch Civil Code.
- Openprovider can not be held liable for damage caused by force majeure (Article 13).
- Any right to claim compensation will at all times be subject to the condition that the Client notifies Openprovider of the damage or loss in writing by means of a registered letter within 30 days after it has arisen.
- The Client indemnifies Openprovider against all third-party claims on account of liability resulting from the failure of a Service provided by the Client to a third party and which consisted in part of items, materials or results supplied by Openprovider.
- The export of Services by the Client or one of the Client’s customers may be subject to export regulations, such as regulations relating to the export of cryptographic products. The Client indemnifies Openprovider against any third-party claims, including government measures, relating to violations of applicable export regulations that can be attributed to the Client or its customers. The aforementioned does not apply to services exported by Openprovider. In such cases, Openprovider will be responsible for all such claims.
- The Client is fully responsible for all domain renewals. The Client is also responsible for monitoring and maintaining its Openprovider account balance. Openprovider is not liable for the consequences of any bank balance deficits. If the domain is not renewed on time, or cannot be renewed on time due to a balance deficit on Openprovider’s account, the registration will be terminated.
Article 14. Failures and force majeure
- Openprovider is entitled to temporarily close down its systems, including the Website, either fully or partially, for the purpose of maintenance, adjustments or improvements. Openprovider will endeavour to ensure that any such closure or adjustments only take place outside office hours as far as possible, and will undertake to inform the Client in good time of the scheduling thereof. However, Openprovider is never liable for damages arising from such closure or adjustments.
- Openprovider has the right to adapt its systems, including the Website, in its entirety or in part, from time to time in order to improve its functionality and/or to correct errors. If an adjustment causes a considerable change in functionality, Openprovider will undertake to inform the Client thereof. In the event of modifications that are relevant to multiple clients, it is not possible to waive a specific modification for the exclusive benefit of the Client. Openprovider is not liable for any compensation of damages resulting from such a modification.
- In the event of unavailability of the Service due to disruptions, maintenance or other causes, Openprovider will make every effort to inform the Client of the nature and expected duration of the interruption.
- In the event of force majeure, which in any case will be understood to refer to disruptions or failure of the Internet or the telecommunications infrastructure, SYN floods, network attacks, DoS or DDoS attacks, power failures, domestic unrest, mobilisation, war, traffic congestion, strikes, injunctions, business interruptions, stagnation in supply, fire, flooding and impediments to import and export, and in the event that Openprovider, through non-performance by parties on which its own service provision depends, regardless of the reason, cannot reasonably be expected to fulfil the Agreement, the Agreement will be suspended, or terminated when the situation involving force majeure has lasted for more than ninety days, without any obligation to pay damages.
Article 15. Amending the General Terms and Conditions
- Openprovider reserves the right to change or supplement these Terms and Conditions.
- Amendments also apply to agreements already concluded with due observance of a term of 30 days following publication of the amendment on the Website or by electronic communication. Minor changes can be implemented at any time.
- In the event the Client does not wish to accept an amendment to these Terms and Conditions, it may terminate the Agreement up to the date on which the new conditions take effect.
Article 16. Final provisions
- This Agreement is governed by Dutch law.
- Insofar as the rules of imperative law or the stipulations of the dispute procedures mentioned in the previous article do not dictate otherwise, any disputes that may arise as a result of the Agreement shall be submitted to the competent Dutch court in Rotterdam.
- If any provisions in the Agreement are declared null and void, this will not affect the validity of the entire Agreement. In such case, for the purpose of replacing any such provisions the parties will stipulate a new provision or new provisions reflecting the purport of the original Agreement and the General Terms and Conditions as far as legally possible.
- These General Terms and Conditions and the ensuing obligations apply, mutatis mutandis, to any agreements between the Reseller and its customers.
- The term “written” in these conditions also includes email and communication by fax, provided that the identity and integrity of the email or fax message have been sufficiently established.
- All versions of communications, measurements (including, but not limited to data traffic) and monitoring conducted by Openprovider that have been received or stored by Openprovider apply as authentic, barring evidence to the contrary provided by the Client.
- The parties will at all times inform each other immediately of any relevant changes in name, postal address, email address, telephone number and, if requested, bank account numbers.
- Both the English and Dutch versions of these General Terms and Conditions apply. In the case of doubt, however, the Dutch version will prevail.