Terms of Service
Firelay provides its Firelay platform – a Platform as a Service (PaaS) of which Liferay forms part – and additional services under the General Terms and Conditions set out below. We recommend that you read the General Terms and Conditions carefully and save them so you can review them at a later stage
The Terms and Conditions apply to both business customers and consumers, and in some cases, different terms and conditions apply to consumers than to businesses – this is clearly stated in the General Terms and Conditions.
Please feel free to contact us at any time if you have any questions. Our contact details are listed at the bottom of this document.
- Added “Article 26: Continuity and Escrow”;
- Amended Article 18 with the definition of Confidential;
- Amended Article 20 to list illegal content only.
- Added “Article 17.6: Use of Email entered”;
Article 1. Definitions
- Account: the Client’s account, to be created and made available on the customer portal on the Website.
- General Terms and Conditions: these General Terms and Conditions relating to the
- Consumer: Client solely in the capacity of a natural person not acting in a professional or business capacity.
- Data: the information and content belonging to the Client and saved by the Client using the
Firelayservice. ‘Data’ specifically does not refer to the Firelayservice and parts thereof, including the source code.
- Liferay: open-source software provided under the Liferay name and detailed on http://www.liferay.com/.
- Firelay: the supplier, Proteon Communications Builders bv, with its registered office at Zuid-Hollandlaan 7, Den Haag, the Netherlands, and registered with the Chamber of Commerce under number 27238455.
Firelayservice(s): the service(s) provided by Firelayto the Client and specified in the Agreement, including, but not limited to, the Firelayplatform and training courses for the purpose of using the Firelayplatform. Firelayplatform: the Platform as a Service (PaaS) as provided by Firelayand described in the Agreement.
- Intellectual Property Rights: all intellectual property rights and related rights, including copyrights, trademark rights, patent rights, design rights, trade-name rights, database rights and related rights, along with domain names and rights to knowhow.
Firelayservice: tailor-made solutions developed by Firelayor a third party engaged by same on behalf of the Client, whereby ‘customised’ refers to the fact that an alternative is used to the standard Firelayservice.
- Materials: materials including, but not limited to, software applications, analyses, designs, documentation, reports, information and other data either subject or not subject to Intellectual Property Rights.
- Client: the natural person or legal entity acting in a professional or business capacity or otherwise with whom or with which
Firelaysigns the Agreement.
- Agreement: The agreement between
Firelayand the Client under which Firelaywill provide the Firelayservice and of which the General Terms and Conditions form an inextricable part.
- Quotation: Written offer submitted by
Firelayfor a Customised Firelayservice. The offer describes, in any event, what is included in the Customised Firelayservice and what compensation will be payable upon acceptance. This offer forms part of the Agreement, provided that the Client has approved it in Writing.
- Party/Parties: Client and/or
- SLA: a Service Level Agreement in which the Parties agree on additional terms for supporting the
- in Writing/Written: print communications and electronic mail, provided the identity of the sender and the integrity of the email address have been sufficiently established.
Firelayservice: the standard versions of the Firelayservice as described on the Website.
- Website: www.firelay.com.
- Working Days: Monday to Friday from 9 a.m. to 5 p.m. (CET: UTC+01:00) excluding official Dutch public holidays (Whit Monday, Easter Monday, Christmas Day, Boxing Day, Ascension Day, King’s Day and New Year’s Day).
Article 2. Applicability and intepretation
- The General Terms and Conditions govern the Agreement, the Firelay service, including the Account (and the creation thereof), along with all Quotations and other offers made by Firelay.
- Amendments and additions to the General Terms and Conditions and/or the Agreement, whether initiated by the Client or otherwise, will be valid only if they have been agreed between the Parties in Writing.
- If any provision of the General Terms and Conditions is annulled or voided, the other provisions of the Terms and Conditions will remain in full force and effect.
Firelaywill replace the annulled or voided provisions with new provisions, whereby the purpose and meaning of the annulled or voided provision is matched as closely as possible.
- The records maintained by
Firelaywill take precedence, in the absence of proof to the contrary.
- In the event of a conflict between the various documents, the following order of precedence shall apply:
- Additional Written and signed terms;
- Service Level Agreement;
- General Terms and Conditions.
- The headings above the articles are merely an indication, serving to improve the readability of this Agreement; they do not restrict the contents of the articles.
Article 3. Conclusion of the Agreement
- The Agreement relating to the Standard
Firelayservice is concluded once the Client (holding an Account) has completed the order process.
- Once the Client has created an Account, it can use this Account to place an order for a specific
Firelayservice by fully completing the order process and then once again expressly confirming its agreement with the order.
- Before the Client expressly approves the order, it has the option to edit its order and billing address.
- Once the Client has confirmed the order,
Firelaywill send an email confirming the Firelayservice to the email address provided by the Client.
- It is not possible to order the Customised Firelay service through the online order process. The Client can submit a request to this end to Firelay by email or by completing a form on the Website. Firelay can send a Quotation and/or request for additional information by email. The Client can accept the offer by email. If the term of the Agreement is not specified in the offer, the regulations set out in paragraph 1 of article 4 will apply. The Agreement relating to a Customised Firelay service is concluded following Written approval by the Client of the Quotation and at the time of receipt of the Written approval by Firelay.
Article 4. Term and termination of the Agreement
- The Agreement is entered into for the period specified in the order placed by means of the Account or in the Quotation. If no term is specified in the order or the Quotation, the Agreement is entered into for a period of 12 calendar months.
- If the Agreement is not terminated, or is not terminated in good time, it will be tacitly agreed for the same period.
- The Client shall be entitled to terminate the Agreement using the appropriate button contained in the Account, subject to one calendar month’s notice upon expiry of the Agreement. The Client shall only be entitled to terminate the Agreement in Writing for the purpose of the delivery of a Customised
Firelayservice, subject to one month’s notice upon expiry of the Agreement.
- The Consumer shall be entitled to terminate the Agreement at any time after the initial tacit renewal. In that case, the termination will take effect on the first day of the next billing period or, if this period exceeds one calendar month, the following month on the day with the same number as the date of the day on which the Agreement was terminated. Previously made payments are reimbursed on a proportional basis.
- Firelay will be authorised to suspend or terminate the Agreement with the Client (excluding Consumers) without any notice of default or judicial intervention being required and without prejudice to Firelay’s right to compensation for loss, loss of profit and interest in the following events:
- If the Client fails to fulfil any of its obligations under the Agreement;
- If the Client is declared bankrupt;
- If the Client has been granted a moratorium;
- If the Client has ceased operations, or, if the Client is a natural person, if he or she is deceased.
- Redundantly: if
Firelaydecides to exercise its rights as described in paragraph 5 of this article, this shall never entitle the Client (excluding Consumers) to compensation in the event of any loss arising from suspension or termination.
- On expiry of the Agreement, the following provisions will remain in force in any event:
- Article 18 Confidentiality;
- Article 21 Limitation of liability;
- Article 25 Dispute
- Termination of the Agreement by the Client (excluding Consumers) will never entitle the terminating party to reimbursement of previously made payments and/or a refund of previously invoiced payments.
Article 5. Consumers: Right of redrawal
- During a period of 14 days calculated from the date on which the Agreement was concluded, the Consumer shall be entitled to terminate the Agreement without stating reasons.
- Consumers who wish to exercise this right of withdrawal should do so by sending an email to firstname.lastname@example.org, stating their name, specifying the
Firelayservice involved, and indicating that they intend to exercise their right of withdrawal. Consumers also have the option to use the online standard right-of-withdrawal form.
- In that case, consumers are only required to pay for the previously provided
Firelayservice, possibly consisting of the fee for setting up the service; the fee for maintaining the service available online, and, if applicable: the fee for the Customised Firelayservice.
Article 6. Access and Account
- The Client is required to create an Account in order to gain access to the Standard
Firelayservice, and, in so doing, will complete the requested information accurately and truthfully. The Client will not use the Account if he/she is purchasing a Customised Firelayservice.
- The Client is required to keep the data entered up-to-date in order to ensure that
Firelaycan use this data to reach the Client if this is necessary as part of the Firelayservice, for example for billing purposes.
- If the Client is not a Consumer, it is also required to enter its VAT number (along with other details).
- Once the data has been entered,
Firelaywill send the username and password to the email address provided by the Client for verification and confirmation. The Client can use this password to set its own password. Firelayrecommends setting a strong password by using more than eight characters, including letters/capitals and punctuation marks.
- The Account can be used to place orders, as described in Article 3 (‘Conclusion of the Agreement’).
- The Account, username(s) and password(s) may be used only by the Client linked thereto. Consequently, the Client is required to maintain this data for its own use and must never provide them to any third parties.
- Any action involving use of the Client’s username and password is deemed to be taken at the Client’s responsibility and risk.
- In the event of suspected abuse of a username and/or password, the Client shall notify
Firelayas soon as possible; this shall not release it of its personal obligation to take immediate measures against any further abuse.
- Other login accounts may be provided for the purpose of the
Firelayservice. The Client is personally responsible for the related user name(s) and password(s) and the use thereof.
Firelayservice is specified in the Agreement.
- The Standard Firelay service is provided in several different versions, as described on the Website. The Client will be entitled to scale up at any time during the term of the Agreement. During the term of the Agreement, the Client will not be authorised to scale back by one or more scales during the term of the Agreement. However, the Client will naturally be authorised to scale back one or more scales if it enters into a new Agreement or, if the Agreement is renewed, if the Client announces this in a timely manner and complies with the notice period set. This is possible by email or using the Client’s Account. If the service to which this relates is a Customised Firelay service, this is possible only in Writing.
- If the Client has requirements that are not covered by the Standard
Firelayservice, it may inform Firelayof such requirements. In that case, Firelaymay provide a Quotation for a Customised Firelayservice to the Client.
Article 8. Delivery
- On conclusion of the Agreement,
Firelaywill endeavour to provide the Firelayservice as soon as possible, unless otherwise agreed by the Parties.
- The service will be deemed to have been provided if any of the following situations occurs:
- The Client is using the Service;
Firelayinforms the Client that the Service is available; Firelayconfirms in Writing or electronically that the Service has been provided.
- Any delivery terms specified by
Firelayare always approximate, unless it is expressly stated in Writing that a strict deadline is involved. Firelaywill only be deemed to be in default after the Client has sent it a Written notice of default, also if a deadline has been agreed between the Parties.
- If the agreed delivery times are not met due to any cause whatsoever, this shall not entitle any Party to compensation, including loss caused by delays. This exoneration does not apply to Consumers if this is deemed to be unreasonable.
- Within 7 calendar days following delivery of, or a delivery stage of, a Customised Firelay service, the Client will evaluate the service and either approve it or reject it. If the Client has not rejected the results (in whole or in part) within this period based on agreed functional or technical specifications, these will be deemed to have been approved. The rejection must be supported by reasons. The rejection and the supporting reasons must be submitted in Writing or by email and addressed to Firelay.
- If the Client rejects a result or part thereof, as described in the foregoing paragraph,
Firelaywill endeavour to eliminate the reason for rejection as soon as possible by modifying the result or indicating, stating reasons, why the reason for the rejection is invalid. Once Firelay has completed the above, the result or the Customised Firelayservice will be deemed to be accepted between the Parties.
Article 9. Provision of the
Firelayguarantees that the Firelayservice is performed to the best of its ability with adequate care and workmanship.
- If and to the extent that this is required for the proper performance of the
Firelayservice, Firelayreserves the right to have specific activities performed by third parties. The General Terms and Conditions also apply to any activities performed by third parties under the Agreement.
- The Client shall do, and refrain from, all that is reasonably necessary and desirable to enable the timely and proper performance of the
- The Client shall ensure that all data and facilities of which
Firelayhas indicated that they are necessary or of which the Client ought reasonably to understand that they are required for the performance of the Firelayservice, are provided to Firelayin good time.
- If the Client encounters any difficulties in using the
Firelayservice, it may request Firelayfor assistance. This service may be subject to a charge; for further information, see Article 10, ‘Support and Helpdesk’.
Article 10. Support and Helpdesk
- Unless otherwise agreed between the Parties in Writing, Firelay’s performance obligations do not include providing support in the Firelay service to the Client and/or Consumers. If the Client nevertheless requests support, Firelay may provide such support at the standard hourly rate. Firelay may require of the Client that a separate agreement be entered into for this purpose.
- The Support Helpdesk is available by email (email@example.com) and through the Account.
- The specific request for support is automatically assigned an ID (number), using the
Firelayticket system. This ID will be quoted in all communications relating to the request. Firelaywill endeavour to respond to the email containing the request within two Working Days. In responding to the request, Firelaywill honour the request for support, reject the request, or indicate within what period it will respond to the request.
- If the Client requires additional or alternative support, it can submit a request to
Firelayto this end. In that case, Firelaymay make a proposal to the Client, either in the form of an SLA or otherwise.
- Additional support is often provided in relation to the Customised Firelay service; in that case, the additional support is described in the Agreement.
- If required, the Client may agree with
Firelaythat the latter will provide a training course, at a charge, to support the use of the service by the Client.
- The Client will be fully responsible for the helpdesk for, and support of, end users, i.e. the users of the environment developed by the Client based on the
Firelayplatform. These end users do not have access to the support and helpdesk services described above, unless otherwise agreed in Writing.
Article 11. Best efforts
Firelayendeavours to develop a user-friendly, high-quality Firelayservice and offers it online. However, Firelaydoes not guarantee that the Firelayservice will be free of error. Firelayprovides its Firelayservice on a best-efforts basis. While Firelaywill endeavour to provide the Firelayservice to the best of its ability, it provides no guarantees regarding the availability and quality of its Firelayservice.
- If the Client does wish to receive guarantees regarding a (specific) performance(s), the Client may purchase an SLA from
Firelayat an additional charge. Please note that this applies only to the Customised Firelayservice.
- If the Client encounters any errors while using the
Firelayservice, it can report this via email (firstname.lastname@example.org) or through its Account. The error report is automatically assigned an ID number; this ID will be quoted in all communications relating to the report. Firelaywill endavourto resolve any errors.
Article 12. Storage space, data traffic and working storage
Firelaymay set a maximum to the amount of storage space or data traffic the Client is entitled to use, or can effectively use, on a monthly basis in connection with the Services. The Client will not exceed the limits, unless the Agreement expressly provides for the consequences of such a data overrun.
- If the Client nevertheless does exceed the limits,
Firelaywill send the Client a warning by electronic mail or through a message in the Account. If the Client once again exceeds the limit, Firelaywill be authorised to impose excess data charges (based on its standard rates) in arrears for the data overrun.
- However, unless otherwise agreed between the Parties,
Firelaywill never be obliged to provide the facilities for the data overrun described above. Firelaywill not be liable for the consequences of the inability to send, receive, store or modify data if an agreed limit for data storage or data traffic has been exceeded.
- The different levels of the
Firelayservice (i.e. Standard or Customised) relate to the performance of this service. If the Client is of the view that a higher performance level is required, it may request Firelayto increase the scale. Firelaymay make an offer (Quotation) to the Client in response to such a request; Firelay will not be required to honour the request.
Article 13. Customisation: development, acceptance and installation
Firelayservice may consist in the development of a Customised Firelayservice. Firelay’soffer relating to the Customised Firelayservice provides a description of the Customised Firelayservice consisting of at least a description of the Customisation in relation to the Firelayplatform.
- In addition, the fee is specified in the Quotation, and an indication is provided of the time schedule for the development.
- The Customised
Firelayservice is then offered for acceptance in a Firelayacceptance environment, unless otherwise agreed. The acceptance process will proceed as follows, unless otherwise agreed between the Parties in Writing:
- The Client will assess the Customised
Firelayservice within the acceptance environment. The Client may submit any requests for change in Writing. Firelaymay charge the Client for making modifications if such modifications fall outside the number of hours specified in the Agreement.
- The Client shall, in any event prior to implementation, have adequately tested and accepted the functionality of the Customised
Firelayservice as it sees fit.
- The Client may accept the Customised
Firelayservice in Writing.
- The Customised
Firelayservice will only be installed into the production environment upon acceptance. Any requests for installation outside the acceptance environment will also be deemed to constitute acceptance.
- The Client will assess the Customised
Article 14. Connection with third-party system
- The Client will be entitled to establish connections with third-party systems and/or plug-ins or its own systems and/or plug-ins, using the
Firelayservice within the limits of the Firelayplatform. In so doing, the Client has the option to use the Liferay plug-ins as provided on Liferay’s Marketplace.
- The Client is personally responsible for the connections and for obtaining the licenses required. Any loss arising from the connection will be at the Client’s risk and expense. The Client may request
Firelayto establish the link. Firelaymay issue a Quotation for this purpose, whereby the work involved always represents Customisation.
Article 15. Licensing of Intellectual Property Rights
- The Parties entitled to the Intellectual Property Rights associated with the
Firelayservice (or parts thereof) are Firelayand its licensors, including open-source licensors. The Client may request Firelayfor a list of these licensors.
- The Client will only be granted the license granted to it in this article and/or under the Agreement.
Firelayor its licensors will be authorised to set additional and/or alternative conditions for the use of specific Firelayservices.
- The Client will receive from
Firelayand its licensors a non-transferrable license to use the Firelayservice solely and exclusively as provided by means of the Firelayplatform for the term of the Agreement, for the purpose of the Intellectual Property Rights associated with the Firelayservice or parts thereof.
- Using the
Firelayplatform and other Firelayservices, the Client will be entitled to provide its own service to third parties, either for commercial purposes or otherwise. However, this is permitted solely and exclusively if the Client adds functionality and look and feel to the Firelayservice.
- The Client will not be entitled to redeliver the
Firelayservice or one or multiple parts thereof to third parties, either as a white label version or otherwise, without satisfying the provisions of the foregoing paragraph, unless otherwise agreed in a partnership agreement with Firelay.
- Firelay will manage all licenses relating to the Firelay service, including any third-party licenses to be used by the Client, to the extent that these licenses are related to the Firelay service, unless otherwise agreed between the Parties. Firelay indemnifies the Client against any third-party claims relating to incorrect licenses or licenses not belonging to Firelay, for the purpose of the Firelay service as provided by Firelay. If Materials were not placed on the Firelay platform by Firelay but rather by the Client and/or a third party, the indemnification naturally does not apply.
- The Client will not be entitled to copy any elements from, or make any modifications to, the
Firelayplatform, and, as such, it will not be authorised to access the source code for the Firelayservice.
- Reverse engineering of the
Firelayservice or any part thereof is not permitted.
Article 16. Data exit plan
- The Client will remain the owner of, and maintain control over, any Data it saves using the
- The Client may copy or move the Data itself.
- In addition, the Client will also be entitled to request
Firelayfor provision or deletion of the Data it has saved using the Firelayservice. Firelaywill cooperate in this process at a charge, and solely if the Client has satisfied all its payment obligations pursuant to any agreement signed between the Parties. Firelaywill determine the format in which the Data is to be provided.
- If the Client procures a Customised
Firelayservice, the provision of Data is part of the expiry of the Agreement relating to the Firelayservice.
- However, the fee for the provision of Data may be payable in advance (if applicable).
- On expiry of the Agreement,
Firelaywill retain the data for a period of 30 calendar days, unless the Client has requested for the Data to be deleted at an earlier date. On expiry of the term, or earlier if a request for deletion was submitted prior to the expiry of the term, no request can be made for the provision of Data.
Article 17. Personal data protection and data security
Firelayprovides its Firelayservice to the Client, including the Firelayplatform. For the purpose of the Firelayplatform and the performance of the Agreement, Firelaywill take all the necessary measures to the extent that, reasonably taking into account the state of the art and the sensitivity of the Personal Data and provided that the expenses associated with the security measures are not unreasonable.
- The Client will be entitled to develop an environment on the
Firelayplatform which can be used to process Personal Data (among other things). However, this data processing and security will be at the risk and expense of the Client.
- Should the Client develop an environment which is used to process special personal data (as defined in the General Data Protection Regulation (GDPR)) and should the Client deem additional measures to be necessary, it can make a request to
Firelayto this end. Firelaymay make an offer to the Client (at a charge), but is not obliged to do so. Firelaywill process the personal data provided in view of the performance of the Agreement.
Firelayinvolve any third parties in the performance of the Agreement, it will ensure that the third party will take similar measures and that it will accept the same duty of confidentiality agreed between the Parties in Writing and will strictly comply with this duty of confidentiality. Firelaymay send informative emails about the Firelayservices to the email address entered by the Client or prospective Client. Client or prospective Client will be able to unsubscribe from these emails.
Article 18. Confidentiality
- The Parties will maintain strict confidentiality with regard to the information they provide to the other party before, during or after the performance of the Agreement, if such information is marked as confidential or if the receiving Party knows or should reasonably suspect that the information provided was intended to be confidential. ‘Confidential’ implies that the information contained within is only intended for the parties which whom the information intentionally has been shared. The Parties shall also impose this obligation on their employees and on any third parties engaged by them for the performance of the Agreement.
Firelaywill be authorised to demonstrate to third parties that it is providing the Firelayservice to the Client in order to promote its Firelayservice.
Article 19. Maintenance of and modifications to the
Firelaywill be entitled to take its systems, or parts thereof, including the Website, temporarily out of service for the purpose of maintenance, modification or improvement. Firelaywill attempt to do this on non-Working Days as much as possible and will endeavour to notify the Client of the scheduled downtime in a timely manner. However, Firelaywill never be liable to pay any compensation for loss in connection with such downtime. As the Firelayservice is provided to multiple Clients, it is not possible to refrain from a specific modification for the benefit of the Client alone. Firelaywill not be liable for any loss resulting from such modification to the Firelayservice. Firelaywill be authorised to modify its systems or parts thereof, including the Website, periodically in order to improve their functionality and correct errors. If a modification results in a significant change in functionality, Firelaywill endeavour to inform the Client accordingly. In the event of modifications that are relevant to multiple Clients, it is not possible to refrain from a specific modification for the Client alone. Firelaywill not be liable to pay compensation for any loss resulting from such modification.
- In the event that the
Firelayservice is unavailable due to malfunctions, maintenance or other causes, Firelaywill endeavour to inform the Client of the nature and expected duration of the interruption. Firelaywill endeavour to keep the software it uses up-to-date. However, Firelayis dependent on its supplier(s) in this respect. Firelaywill be authorised not to install specific updates or patches if, in its view, this is not beneficial for the proper provision of the Firelayservice.
Article 20. Indemnification and deletion or provision of data
- The Client, excluding Consumers, indemnifies
Firelayagainst any third-party claims in relation to any data the Client has sent or stored using the Firelayservice.
- In the event that Firelay receives a report of any of the following:
- infringement on the copyright, trademark right, trade name right or other right of the reporting party or other third party;
- racist, hateful or discriminating statements;
- slander, libel, defamation or threats directed at the reporting party;
- infringement on the reporting party’s personality rights (including stalking);
- child pornography or other illegal content of a pornographic nature;
- cyber crime (i.e. hacking, viruses, etc.);
- unauthorised disclosure of personal data;
- acts or omissions that are in violation with laws and/or regulations,using Firelay’s systems, Firelay will be authorised to intervene.
- Such intervention, or the consequences thereof, as described in the foregoing paragraph, cannot be attributed to
Firelayin any manner whatsoever.
- If Firelay receives a request to provide information, including, but not limited to, the provision of data, by an individual or organisation authorised thereto under the applicable laws and/or regulations, including, but not limited to, an investigator,
Firelaywill be authorised to honour such request. The Client may not hold Firelayliable for any loss it suffers due to the disclosure of information. Firelaywill notify the Client of the provision as described in the foregoing paragraph, provided that this is not prohibited by the request or the authorised individual or organisation.
Article 21. Limitation of liability
- The limitation of liability included in this article does not apply to Consumers.
Firelay’sliability for loss arising from attributable failure to fulfil the Agreement, or from an unlawful act or otherwise, is excluded.
- If Firelay’s liability as specified in the foregoing paragraph cannot be excluded, it will be limited for each event (a series of successive events is regarded as a single event) to compensation for direct loss suffered by the Client as a result of attributable failure by Firelay in fulfilling its obligations under the Agreement, expressly including any failure to comply with any guarantee obligation agreed with the Client or due to an unlawful act performed by Firelay, its employees or any third parties whose services it engages, to a maximum of the amount of the compensation paid following the invoice from Firelay as charged to the Client for the provision of the Firelay service during the quarter (three calendar months, based on a year divided into four quarters) in which the event causing the loss occurred.
Firelay’stotal liability for loss as a result of death or physical injury or for material damage to property shall under no circumstances exceed 50,000 euros per loss-causing event, whereby a series of related events will be deemed to be a single event. Firelay’sliability for indirect loss – including consequential loss, loss of profits, missed savings, damage to or loss of data (including business data) and loss resulting from business interruption – is excluded.
- With the exception of the cases specified in paragraphs 2 to 5 of this article, Firelay is not liable to pay any compensation whatsoever, irrespective of the ground on which an action to receive compensation might be based. The exclusions and limitations specified in paragraphs 2 to 5 of this article will be cancelled if and to the extent that the loss is the result of gross negligence or wilful misconduct on the part of Firelay’s management.
- Firelay’s liability arising from an attributable failure in the fulfilment of the Agreement shall only arise if the Client immediately and correctly sends Firelay a Written notice of default, whereby Firelay is given a reasonable period to remedy the failure, and Firelay has also continued to fail attributably in the fulfilment of its obligations on expiry of this period. The notice of default must contain as detailed a description of the failure as possible, so as to enable Firelay to provide an adequate response.
Firelaywill never be liable for any loss arising from force majeure. For further information, please refer to Article 22 (‘Force majeure’).
- The condition for any right to compensation is that the Client must report the loss to
Firelayin Writing within 30 days after it has arisen.
- The Client indemnifies
Firelayagainst any and all third-party liability claims arising from a defect in the Firelayservice provided by the Client to a third party and consisting in part of a Firelayservice provided by Firelay. Furthermore, the Client will also indemnify Firelayagainst non-compliance with licenses on the part of the Client and/or any third parties.
- The Parties agree that Section 271 of Book 6 of the Dutch Civil Code and the elaboration of the provisions contained therein in the following articles, is excluded.
Article 22. Force majeure
- To the extent that ‘force majeure’ has a broader definition than the term ‘force majeure’ as defined by law (Section 75 of Book 6 of the Dutch Civil Code), this extension does not apply to Consumers.
- Neither Party will be required to fulfil any obligation, including any obligation of result agreed between the Parties, if it is prevented from doing so due to force majeure. Force majeure includes the following (list is not exhaustive):
- force majeure affecting Firelay’s suppliers;
- failure to adequately fulfil obligations of suppliers prescribed for Firelay by the Client;
- defective property, equipment, software or third-party materials the use of which has been prescribed to Firelay by the Client;
- government measures;
- power outages;
- unavailability of internet connection, computer network or telecommunications facilities;
- DDoS and/or DoS attacks;
- war; and
- strike and industrial action.
- If a force majeure event exceeds a period of 90 days, either Party will be entitled to terminate the Agreement in Writing. Any services previously provided under the Agreement will then in any event be settled on a proportional basis, without the Parties owing each other anything if this arises from the force majeure event.
Article 23. Remuneration and payment
Firelaywill be authorised at any time, prior to performing or continuing the contract set out in the Agreement, to require that the Client provide adequate security to prove that it can and will satisfy its payment obligations.
- The fee payable for the
Firelayservice is specified in the Agreement and will be communicated before the order is placed.
- All Rates listed on the Website are stated both inclusive and exclusive of Dutch VAT. Rates for Services not provided to Consumers will be described exclusive of VAT.
- Any one-off fees will be invoiced immediately on
conclusionof the Agreement.
- For term contracts, fees will be invoiced each calendar month, although this may be otherwise provided for in the Agreement.
- Invoices will be sent in electronic format and shall be paid within thirty (30) calendar days, calculated from the invoice date.
- If an invoice is not paid within thirty (30) calendar days, the collection process will be initiated, and the Client will automatically receive a demand for payment. If the Client then fails to make payment within the period specified in this demand for payment (i.e. thirty calendar days), it will be charged collection charges in accordance with the government-imposed scale for out-of-court collection charges (BIK). A minimum amount of EUR 40 was included in 2012.
- Besides charging collection charges,
Firelaywill be entitled to charge statutory interest if the Client fails to meet the invoice due date (i.e. after fourteen days). Firelaywill be entitled to charge the Client (excluding consumers) statutory commercial interest.
Article 24. Amendment of General Terms and Conditions
Firelayreserves the right to amend and/or supplement these General Terms and Conditions.
- Any modifications shall also apply to previously concluded Agreements, subject to thirty days’ notice following notification of the amendment to the Client by electronic mail.
- If the Client refuses to accept an amendment to these General Terms and Conditions, it will be entitled to terminate the Agreement as of this date, through the Account or by electronic mail, until the date on which the new Terms and Conditions become effective.
- Minor changes and amendments arising from a change in legislation may be made at any time. In the event of such changes,
Firelaywill not be obliged to announce the changes in advance. Such changes will not entitle the Client to terminate the Agreement, as specified in paragraph 3 of this article.
Article 25. Dispute settlement
- The Agreement, the General Terms and Conditions, the use of the Website, the use of the
Firelayplatform and the provision of the Firelayservice are governed by Dutch law.
- If any dispute arises between the Parties in the performance of the Agreement, the Parties will first attempt to settle such dispute themselves. They have the option, for example, to use mediation services or refer the dispute to an independent third party.
- Unless otherwise prescribed under the rules of mandatory law and the Parties fail to reach agreement and they have made at least a reasonable effort to arrive at a solution, a Party or Parties may decide to refer the dispute to the competent court in the district of the District Court of The Hague (The Hague branch).
Article 26. Continuity and Escrow
Firelayacknowledges that Clients have an interest in the continuous and uninterrupted use of the FirelayService(s) even in the event Firelaydiscontinues its business operations. To this effect, Firelayoffers an independent Continuity Plan and Escrow service (at a charge) to Clients.
- The Escrow service option is a tri-party agreement between
Firelay, Client and Escrow Provider where Firelaywill deposit with the Escrow Provider essential information of the Client required for the continuous and uninterrupted use of the FirelayService(s). Escrow Provider will periodically verify the essential information and the Continuity Plan.
- Escrow Provider will provide the Client with an Escrow Certificate.
- Client will be entitled to request the performance of the Continuity Plan if:
- Firelay discontinues its business operations without transferring its obligations under the Services Agreement to one or more third parties in a legally valid manner; OR
- Firelay is declared bankrupt or is granted a suspension of payments; OR
- after receiving proper notice of default, Firelay has remained in default for at least 30 days in the performance of its obligations under the Services Agreement or this Agreement; OR
- Firelay is unable for at least 120 days to perform its obligations under the Services Agreement or this Agreement as the result of a situation of force majeure; AND
- insofar as, based on objective standards, the continuity of Beneficiary’s use of the Firelay Service(s) is at risk.