Last updated on 14 December 2019
These General Terms and Conditions apply to all offers and quotes from LEspoirs with respect to Services and are an integral part of every Agreement between LEspoirs and Customer. Provisions or conditions imposed by the Customer that derogate from, or are not present in, these General Terms and Conditions, are only binding for LEspoirs if LEspoirs expressly accepts these in Writing.
Capitalised terms must be understood as defined in Article 1 of these terms and conditions.
Article 1. Definition of used terminology
In these General Terms and Conditions, the following terms should be understood as defined herewith.
1.1. LEspoirs: LEspoirs, established in Maastricht, the Netherlands, registered at the Chamber of Commerce of the Netherlands under 64868184.
1.2. Website of LEspoirs: the website of LEspoirs, available in lespoirs.com.
1.3. Subscription: the Agreement where one or more parties bind theirselves for a certain period to provide services continuously (such as a hosting agreement for 24 months).
1.4. Account: the right to access to a user interface that Customer can use to manage and configure (certain aspects of) the Services, as well as the information stored by Customer.
1.5. General Terms and Conditions: the provisions in the present document.
1.6. Customer: the natural or legal person whom LEspoirs concludes the Agreement with, including parties negotiating with LEspoirs to that end, as well as their (authorised) representatives or agents, assignees and heirs.
1.7. Services: the products and/or services that LEspoirs shall deliver to Customer pursuant to the Agreement.
1.8. Materials: all works, such as websites and (web) applications, software, house styles, logos, flyers, brochures, leaflets, lettering, advertisements, marketing and/or communication plans, concepts, images, texts, sketches, documentation, advices, reports and other products of the mind, including preparatory materials thereof and (whether or not coded) files or data carriers on which the Materials are stored.
1.9. Agreement: every agreement between LEspoirs and Customer on the basis of which LEspoirs delivers Services to Customer
1.10. Writing: paper writings, e-mail, communication by fax, to the extent the identity of sender and the integrity of the message can be sufficiently established.
1.11. High Risk Applications: applications where errors in the Services may lead to death or severe injuries, severe environmental damage or the loss of (personal) data with very high consequential damage. Examples of High Risk Applications are: transport systems where a mistake can result in trains to derail or planes to crash; medical systems where a mistake can result in a patient to receive no treatment or the wrong treatment; systems on which a substantial part of the population relies for the provision of crucial government services, such as DigiD (in the Netherlands); systems in which (a lot of) medical data or other special categories of data within the meaning of the General Data Protection Act, or otherwise highly sensitive data, are stored.
Article 2. Conclusion of agreements
2.1. Customer can request Services by filling out the request form available on the Website of LEspoirs, signing it and sending it to LEspoirs. Such request is binding for Customer. The Agreement is regarded as concluded if LEspoirs has sent a message containing the confirmation and acceptance of the request.
2.2. Customer can also request a non-binding offer. The Agreement is regarded as concluded after receipt of acceptance of this offer, provided that it is accepted before the expiration date stated in the offer.
2.3. Concluded Agreements are definite. If Customer is a consumer, the delivery of the Services will take place immediately after the order with the express consent from Customer.
Article 3. Execution of the agreement
3.1. After the Agreement is concluded, LEspoirs shall make best efforts and apply sufficient care and craftmanship to fulfil the agreement.
3.2. LEspoirs shall make efforts to effect qualitatively good and uninterrupted availability of the Services and their associated systems and networks, and to provide the Customer with access to data stored therein. However, LEspoirs does not make any warranties on the quality or availability.
3.3. Any terms stated or provided by LEspoirs for the delivery of Service shall be merely indicative.
3.4. LEspoirs is entitled to hire third parties to carry out certain work, if that is necessary for the proper execution of the Agreement. Any unexpected additional costs associated herewith shall be borne by Customer, unless agreed otherwise.These General Terms and Conditions also apply to work carried out by third parties in the context of the Agreement.
3.5. If such is agreed, LEspoirs shall provide Customer access to an Account. The Account shall be accessible by entering a username and password. Every action through Customer’s account or through an Account made by Customer shall fall under the responsibility of Customers and shall be at Customer’s own risk. If Customer suspects or should reasonably suspect that an Account is being abused, Customer shall report this to LEspoirs in order to be able to take measures.
3.6. LEspoirs shall be available to provide a reasonable level of customer support remotely by telephone and e-mail, during normal office hours.
3.7. All changes to the Agreement, either at the request of Customer or as a result of changes of circumstances that require a different execution, shall be regarded as additional work, if they come with additional costs. If this results in less work, this will be deducted from the costs. This will be invoiced to Customer accordingly.
Article 4. Obligations of Customer
4.1. Customer shall make best efforts to do whatever it reasonably takes to allow for a timely and correct execution of the Agreement. More specifically, Customer shall make sure to provide all data to LEspoirs of which LEspoirs has indicated that they are necessary for the delivery of the Services or of which Customer should reasonably know that they are necessary for that purpose. The term in which LEspoirs should execute the agreement shall start only after LEspoirs has received all requested and necessary data.
4.2. If Customer knows or expects that LEspoirs should take certain (extra) measures to be able to fulfil its obligations, Customer shall notify LEspoirs without delay. For example, this obligation applies where Customer knows or should know that an extraordinary peak in the workload of the systems of LEspoirs will occur, that are likely to cause the unavailability of the Services. This applies especially where Customer knows that Services are also delivered to other parties through the same systems as LEspoirs uses to deliver Services to Customer. After such warning, LEspoirs shall make all efforts to prevent the unavailability of Services. All reasonable additional costs made in this context shall be borne by Customer, unless agreed otherwise in Writing.
4.3. On no account may Customer use the Services for High Risk Applications.
4.4. If Customer needs any permit or other permission from a government agency or third party for the intended use of the Services, it is Customer’s responsibility to obtain such permits or authorisation. Customer guarantees LEspoirs that it has all permits and permissions required for the intended use of the Services by Customer.
Article 5. Rules of conduct and Notice and Takedown
5.1. Customer is prohibited to use the Services to violate Dutch or other regulation that Customer or LEspoirs is subject to, or to violate rights of others.
5.2. LEspoirs prohibits that the Services are used to publish or disseminate Materials (whether they are lawful or not) that:
- Are evidently intended to support others to violate rights of third-parties, such as website containing (exclusively or predominantly) hacktools or explanations of cybercrimes that is evidently intended to enable the reader to execute the described criminal activities (and not to defend himself against such);
- Are evidently libelous, slanderous, abusive, racist, discriminatory or inciting hatred;
- Contain child pornography or bestiality pornography or are evidently intended to help other find such materials;
- Constitute a violation of the privacy of third parties, which also includes the dissemination of personal data of third parties without any permission or necessity and the approaching of third parties with unsollicited communication;
- contain hyperlinks, torrents or references to (places containing) materials that evidently infringe copyrights, neighbouring rights or portrait rights;
- Contain unsollicited commercial, charitable or idealistic communication;
- Contain malware such as virusses or spyware.
5.3. The dissemination of pornographic Materials using the Services is prohibited.
5.4. Customer shall refrain from hindering other customers and internet users or harming the systems or networks of LEspoirs or other customers. Customer is prohibited to execute processes or programs, whether or not through the systems of LEspoirs, of which Customer knows or should reasonably know that these may cause damage or hindrance to LEspoirs, its customers or internet users.
5.5. If according to LEspoirs hindrance, damage or other dangers arise to the functioning of the systems or networks of LEspoirs or third parties and/or service delivery through the internet, LEspoirs shall be entitled to take all measures that it reasonably deems necessary to ward off or prevent such danger. More specifically, such danger may exist of excessive transmission of e-mails or other data, denial-of-service attacks, poorly secured systems or activities of virusses, Trojans or similar software. LEspoirs may recoup the costs reasonably associated with these measures from Customer.
5.6. If LEspoirs receives a complaint on violation of this Article by Customer, or if LEspoirs establishes that there is such violation, LEspoirs shall notify Customer of such complaint or violation as soon as possible. Customer shall respond as soon as possible, after which LEspoirs shall decide how to deal with it.
5.7. If LEspoirs establishes that there is a violation, it shall remove the Material(s) concerned, without being obliged to make a backup (to which LEspoirs is entitled). LEspoirs shall make efforts to not affect other Materials in that process. LEspoirs shall notify Customer on the taken measures as soon as possible.
5.8. At all times, LEspoirs shall be entitled to report any detected illegal activities. LEspoirs is also entitled to provide the name, address and other identifying information of Customer to any third party that complains that Customer violates their rights or these General Terms and Conditions, to the extent that the accuracy of the complaint is reasonably admissable and that the third party has an evident interest in obtaining such information.
5.9. Although LEspoirs aspires to act in the most reasonable, careful and adequate way after complaints about Customer, LEspoirs shall never be obliged to compensate any damages resulting from the measures taken in the context of this Article.
5.10. Customer is prohibited to resell the Services.
Article 6. Domain name applications
6.1. LEspoirs does not provide services regarding registration of domain names. Customer is responsible for applications of domain names and linking domain names to the Services it purchases from LEspoirs
Article 7. Storage and data limits
7.1. There is no limit to the storage capacity or monthly data traffic that Customer may or can use in the context of the Services.
7.2. If Customer’s use of storage capacity or data traffic is excessive, LEspoirs shall contact Customer to find an appropriate solution
Article 8. Intellectual property rights
8.1. All intellectual property rights developed or made available by LEspoirs in the context of the Agremeent shall be vested exclusively in LEspoirs or its licensors.
8.2. Customer only has the user rights or other rights that are granted under these General Terms and Conditions or the Agreement, or those that are otherwise explicitly granted in Writing. In other cases, Customer shall not reproduce the Materials or make the Materials available to the public. The foregoing does not apply where it is evident that LEspoirs has mistakenly refrained from granting Customer such rights explicitly. However, access to or sharing of source codes of Materials shall always be subject to an explicit license.
8.3. Unless agreed otherwise in Writing, Customer is not allowed to remove or modify any notice of copyrights, trade marks, trade names or other intellectual property rights in these Materials, including indications of the confidential nature and secrecy of the Materials.
8.4. LEspoirs is allowed to take technical measures to protect its Materials. If LEspoirs has protected its Materials through such technical measures, Customer is prohibited to remove or circumvent such measures, except where mandatory law provides otherwise.
Article 9. Prices
9.1. Unless specified otherwise, and unless Customer is a consumer, all prices stated by LEspoirs exclude VAT and other levies imposed by the government.
9.2. If a price is based on data provided by Customer and these appear to be incorrect, LEspoirs is entitled to adjust the prices accordingly, even after the Agreement is concluded.
9.3. If the Agreement is a Subscription, LEspoirs is entitled to modify the prices at any time in accordance with the inflation, as determined by relevant price index of Statistics Netherlands.
9.4. Price changes are subject to the same conditions and procedures as changes in the Services and in these General Terms and Conditions.
Article 10. Payments
10.1. LEspoirs shall invoice the payable amounts to Customer. LEspoirs may issue electronic invoices. LEspoirs is entitled to invoice amounts that are due periodicaly prior to the delivery of Services.
10.2. The payment term for an invoice is fourteen days after the invoice date, unless agreed otherwise in Writing.
10.3. If Customer has not paid the invoice within fourteen days after the payment term has lapsed, Customer is automatically in default.
10.4. If Customer is in default, this shall have the following consequences:
- A statutory interest is due on the outstanding invoice, or 2% per month if that is higher;
- Customer has to pay 15% of the principal amount of collecting costs, or €40.00 is that is higher than 15% of the main amount;
- On top of the payable amount and interest, Customer is obliged to full compensation for extrajudicial costs and judicial collection costs, including costs for attorneys, lawyers, bailiffs and collection agencies;
- Websites and other Materials hosted by Customer may, without further warning, be made inaccesible until the outstanding amounts, interest and other payable amounts are paid.
10.5. Customer is not allowed to invoke suspension, set-off or deduction, unless Customer is a consumer.
10.6. If Customer fails to comply with any of the obligations in the Agreement, LEspoirs is, without sending Customer a notice of default, entitled to take back delivered goods in addition to the delivered Services, without prejudice to the right of LEspoirs to compensation for damage, lost profits and interest.
Article 11. Liability
11.1. In the context of the conclusion and execution of the Agreement, LEspoirs is not liable except for the cases stated below, and limited to the maxima stated therewith.
11.2. The total liability of LEspoirs for Customer’s damages arising from attributable shortcomings of LEspoirs in complying with its obligations of the Agreement is limited, per event or series of coherent events, to an amount equal to the total payable amounts (excluding VAT) that Customer has paid under the Agreement until the moment the damage has occurred or, if the Agreement is concluded for a term longer than six months, to an amount equal to the payments that Customer has made in the last six months. The aforementioned shortcomings also include each shortcoming in complying with the warranty agreed with Customer, or any wrongful action by LEspoirs, its employees or hired third parties. In no case shall the total compensation for direct damages amount to more than €10,000 (TEN THOUSAND EUROS) (excluding VAT).
11.3. LEspoirs is not liable for indirect damages, consequential damages, lost profits, lost savings or damages arising from business interruptions.
11.4. The liability of LEspoirs for attributable shortcomings in complying with the Agreement only arises if Customer puts LEspoirs in default without delay and in Writing, giving a reasonable term to redress the shortcomings, and if the attributable shortcomings of LEspoirs remain after this term. The notice of default shall contain a description that is as detailed as possible, in order to enable LEspoirs to respond adequately. LEspoirs shall receive the notice of default within 30 days after the damage has been discovered.
11.5. The exceptions to and limitations of liability as stated in this Article shall lapse if the damages is the result of intention or deliberate recklessness of the management of LEspoirs.
11.6. Customer is liable to LEspoirs for damages arising from attributable errors or shortcomings by Customer. Customer indemnifies LEspoirs against claims concerning the use of the Services by Customer or with its permission in a manner not complying with the rules of conduct in these General Terms and Conditions. This indemnification also applies to persons who are not employees of Customer, but who nevertheless use the Services under the responsibility of or with permission of Customer.
Article 12. Force majeure
12.1. Parties cannot be bound to any obligation in the Agreement in case of force majeure reasonably renders the compliance with an obligation reasonably impossible, if such circumstance was not or should not have been forseeable at the time the Agreement was concluded.
12.2. Force majeure must be understood to include (but shall not be limited to): interruptions of public infrastructure normally available to LEspoirs on which the delivery of Services depend, but which are beyond the factual or contractual control of LEspoirs, such as the functioning of IANA, RIPE or SIDN, and all networks in the internet that LEspoirs has not a contractual relation with; interruptions in the infrastructure and/or Services of LEspoirs caused by cybercrimes, such as (D)DOS attacks or (un)successful attempts to circumvent the protection of networks or systems; shortcoming of suppliers of LEspoirs, that LEspoirs could not foresee and where LEspoirs cannot hold the supplier liable, for example because there was a case of force majeur; defects in things, equipment, programs or other source materials which the Customer has prescribed to use; unavailability of personnel (because of illness or other causes); measures taken by the government; general problems in traffic/transport; strikes; war; terrorist attacks and domestic disturbances.
12.3. If a case of force majeure continues for more than three months, each party is entitled to terminate the Agreement in Writing. In such case, any performance already made on the basis of the Agreement shall be paid in proportion to the performance, without the parties being obliged to pay any other amount.
Article 13. Secrecy
13.1. The parties shall treat confidentially any information that they provide to each other before, during or after performance of the agreement if said information is marked as confidential or if the receiving party knows or should reasonably suspect that the information was intended to be confidential. The parties shall also impose this obligation on their employees and on any third party they engage with for performance of the agreement.
13.2. LEspoirs shall make efforts to prevent that it takes notice of data that Customer stores or disseminates through its hardware or software in relation to the Services, unless this is necessary for a proper performance of the agreement or LEspoirs is required to pursuant to a statutory provision or court order. In such case, LEspoirs shall make efforts to restrict the notice of such data as much as possible, to the extent this is within its power.
13.3. The obligations of this article will continue to exist after the agreement has ended for any reason whatsoever and for as long as the providing party can reasonably claim the confidentiality of the information.
Article 14. Term and termination
14.1. The term of the Agreement is equal to the time span necessary to deliver the Services. If the Agreement is a Subscription, it is concluded for .
14.2. If parties agree on a fixed term for the Subscription, parties may not terminate the Agreement early, unless there are special grounds as defined in this Article. Each of the parties may terminate an Agreement, concluded for indefinite period, observing a notice period of 14 days.
14.3. In the absence of an early termination of a Subscription, it will be renewed for an indefinite period. The renewed Subscription will be subject to a notice period of one month.
14.4. LEspoirs may terminate or suspend the Agreement immediately if one of the following special grounds applies:
a) Customer is in default concerning a substantial obligation;
b) Customer has filed for bankruptcy;
c) Customer has applied for a moratorium;
d) Activities of Customer are being terminated or liquidated.
14.5. If LEspoirs suspends the fulfilment of obligations, it retains the entitlements arising from the law and the Agreement, including the right of payment for the Services that are suspended.
14.6. If the Agreement is terminated, the claims of LEspoirs against Customer are immediately due and payable. In case of termination or dissolution of the Agreement, outstanding invoices remain due and payable, without any obligation to cancel or nullify such invoices. In case of termination or dissolution by Customer, Customer may only terminate that part of the Agreement that has not yet been executed by LEspoirs. If dissolution can be attributed to Customer, LEspoirs is entitled to claim damages arising directly or indirectly therefrom.
Article 15. Procedure after termination
15.1. After the Agreement has ended as a concequence of termination or dissolution, the Account of Customer and data stored for Customer shall be available to Customer to download for a week. After this period, all data of Customer shall be removed, whether or not Customer has downloaded these.
15.2. LEspoirs shall remove data it has stored for Customer without specific measures to make removal irreversible.
Article 16. Precedence and changes of conditions
16.1. LEspoirs reserves the right to change or complement these General Terms and Conditions applying to its Services. Changes also apply to agreements already concluded, subject to a notice period of 30 days.
16.2. Changes shall be announced on the Website of LEspoirs, or by means of any other channel for which LEspoirs can prove that the announcement has reached Customer. Non-substantive changes of minor importance may be made without any announcement.
16.3. If Customer refuses to accept a change, Customer shall inform LEspoirs thereof in Writing accompanied by its reasons within two weeks after the announcement of the changes. LEspoirs may then reconsider the change(s) concerned. If LEspoirs does not revoke the change(s) concerned, Customer may terminate the Agreement from the date the new conditions will enter into effect.
16.4. Provisions related to specific Services shall take precedence over general provisions related to all Services. Further arrangements between LEspoirs and Customer shall only take precedence over these General Terms and Conditions if agreed so explicitly in Writing, or if that is evidently the intent of both parties.
Article 17. Other provisions
17.1. The Agreement is subject to Dutch law.
17.2. All disputes arising from the Agreement between LEspoirs and Customer shall be submitted to the competent Dutch court for the district in which Customer is established, unless statutory provisions prescribe otherwise.
17.3. If a provision in the Agreement turns out to be void, this shall not affect the validity of the Agreement as a whole. In such cases, parties shall establish (a) new provision(s) as a replacement, which shall be drafted in away that meets as much as possible the intent of the original Agreement and these General Terms and Conditions.
17.4. Information and announcements, including price indications, on the Website of LEspoirs are subject to programming and typing errors. In case of any inconsistence between the Website and the Agreement, the Agreement prevails.
17.5. Log files and other, whether or not electronic, administration of LEspoirs constitute full proof of statements of LEspoirs and any (electronic) communication or stored version thereof received by LEspoirs shall be deemed to be authentic, subject to evidence to the contrary to be provided by Customer.
17.6. Parties shall notify one another without delay in writing regaring any changes of name, postal address, e-mail address, telephone number or bank account number.
17.7. Parties are only entitled to transfer their rights and obligations under this Agreement to third parties with prior permission from the other party in Writing. Such permission is not required in the case such transfer is part of a company takeover or the acquisition of a majority of shares in the party concerned.