General Terms and Conditions
These General Terms and Conditions apply to all offers and quotes from UpscopeXL with respect to Services and are an integral part of every Agreement between UpscopeXL 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 UpscopeXL if UpscopeXL expressly accepts these in Writing.
Capitalized 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.
UpscopeXL: The company UpscopeXL, established in Hilversum, the Netherlands, registered at the Chamber of Commerce of the Netherlands under 32137936.
Website: the website of UpscopeXL, available at https://UpscopeXL.com.
Subscription: the Agreement where one or more parties bind their selves for a certain period to provide services continuously (such as a hosting agreement for 12 months or a monthly membership).
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.
General Terms and Conditions: the provisions in the present document.
Customer: the natural or legal person whom UpscopeXL concludes the Agreement with, including parties negotiating with UpscopeXL to that end, as well as their (authorized) representatives or agents, assignees and heirs.
Services: the products and/or services that UpscopeXL shall deliver to Customer pursuant to the Agreement.
Materials: all works, such as websites and (web) applications, software, (brand)style guides, logos, flyers, brochures, leaflets, lettering, advertisements, marketing and/or communication plans, concepts, images, texts, sketches, documentation, advices, reports, guides, training 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.
Agreement: every agreement between UpscopeXL and Customer on the basis of which UpscopeXL delivers Services to Customer.
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.
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, 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 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.
2.2 If Customer is a consumer, Customer may terminate the agreement free of charge within a period of fourteen days from the moment the order is made.
2.3 The right of termination of the agreement does not apply to the delivery of digital content other than on a material medium, but only if the delivery commenced with Consumer explicit prior agreement, and Consumer declared that this implied his having lost his right of withdrawal.
Article 3.Conclusion and Execution of the agreement
3.1 The Agreement will be deemed to be concluded at the moment Customer accepts the offer of UpscopeXL subject to the conditions laid down by UpscopeXL. After the Agreement is concluded, UpscopeXL shall make best efforts and apply sufficient care and craftsmanship to fulfil the agreement.
3.2 UpscopeXL 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, UpscopeXL does not make any warranties on the quality or availability, unless agreed otherwise in the quotation referring to a Service Level Agreement (SLA).
3.3 Any terms stated or provided by UpscopeXL for the delivery of Service shall be merely indicative, except for the terms stated in the SLA that can only be regarded as obligations of result.
3.4 UpscopeXL 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 only if agreed so in advance and in Writing. 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, UpscopeXL 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 UpscopeXL in order to be able to take measures.
3.6 UpscopeXL shall be available to provide a reasonable level of customer support remotely by e-mail, during normal office hours, unless the applicable SLA states otherwise.
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 UpscopeXL of which UpscopeXL 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 UpscopeXL should execute the agreement shall start only after UpscopeXL has received all requested and necessary data.
4.2 If Customer knows or expects that UpscopeXL should take certain (extra) measures to be able to fulfil its obligations, Customer shall notify UpscopeXL without delay. For example, this obligation applies where Customer knows or should know that an extraordinary peak in the workload of the systems of UpscopeXL 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 UpscopeXL uses to deliver Services to Customer. After such warning, UpscopeXL 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 authorization. Customer guarantees UpscopeXL that it has all permits and permissions required for the intended use of the Services by Customer.
4.5 To make optimal use of the Services, Customer may be required to register using the registration form/the Account sign-in option.
4.6 During the registration process, Customer will be asked to choose a user name and password with which he can log in to the Account. Customer alone is responsible for choosing a sufficiently reliable password.
4.7 Customer must keep its login credentials, user name and password strictly confidential. UpscopeXL cannot be held liable for any misuse of the login credentials and is always entitled to assume that the Customer who logs on is the party that it professes to be. Customer is responsible for and bears the full risk of any and all actions and transactions performed via Customer’s Account.
4.8 If Customer knows or has reason to suspect that its login details have become available to unauthorized parties, it will be required to change its password as soon as possible and/or to notify UpscopeXL accordingly so as to allow UpscopeXL to take appropriate measures.
Article 5. Warranty and conformity
5.1 This article only applies if Customer is a natural person who is not acting in his or her professional or commercial capacity. If UpscopeXL gives a separate warranty on the Services then, without prejudice to the aforesaid, this applies to all types of Customers.
5.2 UpscopeXL guarantees that the Services are in conformity with the Agreement, the specifications stated in the offer, the reasonable requirements of reliability and/or usability and with the existing statutory provisions and/or government regulations that are in force from the date of entering into the Agreement.
5.3 If the delivered Services are not in conformity with the Agreement, Customer must inform UpscopeXL within a reasonable period of time after the Customer has discovered this.
5.4 If UpscopeXL deems the complaint to be correct, the Services will be replaced or refunded in consultation with Customer. The maximum amount of compensation is, having regard to the Article on liability, equal to the price paid by Customer for the product.
Article 6. Complaints handling procedure
6.1 If Customer has any grievances in connection with a Service (in accordance with the article on warranties and conformity) and/or about other aspects of UpscopeXL’s Service, it can submit a complaint by email or by post. See the contact details at the bottom of the General Terms and Conditions.
6.2 UpscopeXL will respond to the complaint as soon as possible, and in any case within 14 days after having received it. If it is not yet possible for UpscopeXL to formulate a substantive reaction to the complaint by that time, UpscopeXL will confirm receipt of the complaint within 14 days after having received it and give an indication of the term within which it expects to be able to give a substantive or definitive reaction to Customer’s complaint.
Article 7. Personal details
7.1 UpscopeXL will process the Customer’s personal details in accordance with the privacy statement, which can be found at https://UpscopeXL.com/privacy.
Article 8. Domain name transfers
8.1 Parties shall perform all acts necessary to register Customer as the holder of the domain name in the electronic domain name register (hereafter referred to as “the Registry”).
8.2 More specifically, Customer shall make available all tokens required by the Registry to enable the change of the domain name holder as referred to in the previous paragraph. Furthermore, Customer shall fill out all forms required by the Registry and provide all information that Customer reasonably requires to effectuate the registration as referred to in the previous paragraph.
8.3 Customer shall designate a registrar that will perform the actual relocation of the Domain Name and link the Domain Name to the server(s) under Customer’s administration.
8.4 In case transfer to another Registry is prohibited due to a transfer lock, UpscopeXL will transfer the domain name to a separate account with the current Registry in name of the Customer. Once a transfer lock has been lifted, Customer has the option to transfer the domain name to the preferred Registry without assistance from UpscopeXL.
Article 9. Rules of conduct and Notice and Takedown
9.1 Customer is prohibited to use the Services to violate Dutch or other regulation that Customer or UpscopeXL is subject to, or to violate rights of others.
9.2 UpscopeXL 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) hack tools 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 unsolicited communication;
- contain hyperlinks, torrents or references to (places containing) materials that evidently infringe copyrights, neighboring rights or portrait rights;
- contain unsolicited commercial, charitable or idealistic communication;
- contain malware such as viruses or spyware.
9.3 The dissemination of pornographic Materials using the Services is prohibited.
9.4 Customer shall refrain from hindering other customers and internet users or harming the systems or networks of UpscopeXL or other customers. Customer is prohibited to execute processes or programs, whether or not through the systems of UpscopeXL, of which Customer knows or should reasonably know that these may cause damage or hindrance to UpscopeXL, its customers or internet users.
9.5 If according to UpscopeXL hindrance, damage or other dangers arise to the functioning of the systems or networks of UpscopeXL or third parties and/or service delivery through the internet, UpscopeXL 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 viruses, Trojans or similar software. UpscopeXL may recoup the costs reasonably associated with these measures from Customer, if Customer can be reproached with the cause.
9.6 If UpscopeXL receives a complaint on violation of this Article by Customer, or if UpscopeXL establishes that there is such violation, UpscopeXL shall notify Customer of such complaint or violation as soon as possible. Customer shall respond as soon as possible, after which UpscopeXL shall decide how to deal with it. In exceptional cases, where the complainer has requested not to forward the complaint to Customer or UpscopeXL established that the violation is evident, UpscopeXL is not obliged to forward the complaint.
9.7 If UpscopeXL establishes that there is a violation, it shall remove the Material(s) concerned, without being obliged to make a backup (to which UpscopeXL is entitled). UpscopeXL shall make efforts to not affect other Materials in that process. UpscopeXL shall notify Customer on the taken measures as soon as possible.
9.8 At all times, UpscopeXL shall be entitled to report any detected illegal activities. UpscopeXL 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 admissible and that the third party has an evident interest in obtaining such information.
9.9 Although UpscopeXL aspires to act in the most reasonable, careful and adequate way after complaints about Customer, UpscopeXL shall never be obliged to compensate any damages resulting from the measures taken in the context of this Article.
9.10 Customer is prohibited to resell the Services.
Article 10. Storage and data limits
10.1 UpscopeXL is entitled to set a maximum to the storage capacity or monthly data traffic that Customer may or can use in the context of the Services.
10.2 In case Customer exceeds the applicable limits and after at least one warning to Customer about such exceedance, UpscopeXL may charge Customer with additional costs per data unit (such as MB or GB) that has exceeded the limits, according to the applying amounts in the pricelist.
10.3 UpscopeXL shall not be liable for any consequences of the inability to send, receive, store or change data in case the applicable limit for storage capacity or data traffic is exceeded by Customer.
10.4 If excessive use of data traffic is the effect of an external cause (such as in the case of a denial-of-service attack), UpscopeXL shall be entitled to charge Customer with the reasonable costs for such use.
Article 11. Intellectual property rights
11.1 All intellectual property rights developed or made available by UpscopeXL in the context of the Agreement shall be vested exclusively in UpscopeXL or its licensors.
11.2 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 UpscopeXL 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.
11.3 Unless agreed otherwise in Writing, Customer is not allowed to remove or modify any notice of copyrights, trademarks, trade names or other intellectual property rights in these Materials, including indications of the confidential nature and secrecy of the Materials.
11.4 UpscopeXL is allowed to take technical measures to protect its Materials. If UpscopeXL has protected its Materials through such technical measures, Customer is prohibited to remove or circumvent such measures, except where mandatory law provides otherwise.
Article 12. Prices
12.1 Unless specified otherwise, and unless Customer is a consumer, all prices stated by UpscopeXL exclude VAT and other levies imposed by the government.
12.2 If a price is based on data provided by Customer and these appear to be incorrect, UpscopeXL is entitled to adjust the prices accordingly, even after the Agreement is concluded.
12.3 If the Agreement is a Subscription, UpscopeXL is entitled to modify the prices at any time.
12.4 Price changes are subject to the same conditions and procedures as changes in the Services and in these General Terms and Conditions.
Article 13. Payments
13.1 Customer shall pay the amounts due to UpscopeXL in accordance with the ordering procedure and any payment methods indicated. UpscopeXL is free to offer any payment method of its choice and may change these methods at any time.
13.2 UpscopeXL can upon request invoice the payable amounts to Customer. UpscopeXL may issue electronic invoices. UpscopeXL is entitled to invoice amounts that are due periodically prior to the delivery of Services.
13.3 The payment term for an invoice is equal to the term stated in the invoice, unless agreed otherwise in Writing.
13.4 If Customer has not paid an invoice for non-digitally delivered Services within fourteen days after the payment term has lapsed, Customer is automatically in default.
13.5 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 inaccessible until the outstanding amounts, interest and other payable amounts are paid.
13.6 Customer is not allowed to invoke suspension, set-off or deduction, unless Customer is a consumer.
13.7 If Customer fails to comply with any of the obligations in the Agreement, UpscopeXL 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 UpscopeXL to compensation for damage, lost profits and interest.
Article 14. Liability
14.1 In the context of the conclusion and execution of the Agreement, UpscopeXL is not liable except for the cases stated below, and limited to the maxima stated therewith.
14.2 The total liability of UpscopeXL for damages suffered by Customer arising from attributable shortcomings by UpscopeXL in complying with the 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 three months, to an amount equal to the payments that Customer has made in the last three months. The aforementioned shortcomings also include each shortcoming in complying with the warranty agreed with Customer, or any wrongful action by UpscopeXL, its employees or hired third parties. In no case shall the total compensation for direct damages amount to more than €1,000 (One Thousand Euro’s) excluding VAT.
14.3 UpscopeXL is explicitly not liable for:
arising from measures taken by UpscopeXL in good faith, but that has
nevertheless appeared to be wrongly imposed;
b) damages arising from unavailability of the Services, loss of data or breaches of technical or organizational security measures, and
c) indirect damages, consequential damages, lost profits, lost savings and damages arising from business interruptions.
14.4 The liability of UpscopeXL for attributable shortcomings in complying with the Agreement only arises if Customer puts UpscopeXL in default without delay and in Writing, giving a reasonable term to redress the shortcomings, and if the attributable shortcomings of UpscopeXL remain after this term. UpscopeXL shall receive the notice of default within fourteen days after the damage has been discovered.
14.5 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 UpscopeXL.
14.6 Customer is liable to UpscopeXL for damages arising from attributable errors or shortcomings by Customer. Customer indemnifies UpscopeXL 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 15. Force majeure
15.1 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 foreseeable at the time the Agreement was concluded.
15.2 Force majeure must be understood to include (but shall not be limited to): interruptions of public infrastructure normally available to UpscopeXL on which the delivery of Services depend, but which are beyond the factual or contractual control of UpscopeXL, such as the functioning of IANA, RIPE or SIDN, and all networks in the internet that UpscopeXL has not a contractual relation with; interruptions in the infrastructure and/or Services of UpscopeXL caused by cybercrimes, such as (D)DOS attacks or (un)successful attempts to circumvent the protection of networks or systems; shortcoming of suppliers of UpscopeXL, that UpscopeXL could not foresee and where UpscopeXL cannot hold the supplier liable, for example because there was a case of force majeure; 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; forces of nature and domestic disturbances.
15.3 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 16. Secrecy
16.1 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.
16.2 UpscopeXL 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 UpscopeXL is required to pursuant to a statutory provision or court order. In such case, UpscopeXL shall make efforts to restrict the notice of such data as much as possible, to the extent this is within its power.
16.3 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 17. Term and termination
17.1 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 an indefinite period.
17.2 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 one calendar month.
17.3 Before the Subscription expires, Customer shall receive a request for renewal for a term stated by UpscopeXL. Only if Customer accepts such request, the Agreement will be renewed.
17.4 UpscopeXL 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.
17.5 If UpscopeXL 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.
17.6 If the Agreement is terminated, the claims of UpscopeXL 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 UpscopeXL. If dissolution can be attributed to Customer, UpscopeXL is entitled to claim damages arising directly or indirectly therefrom.
Article 18. Procedure after termination
18.1 After the Agreement has ended as a consequence of termination or dissolution, the Account of Customer and data stored for Customer shall be available to Customer to download for one (1) week, unless stated otherwise. After this period, all data of Customer shall be removed, whether or not Customer has downloaded these.
18.2 UpscopeXL shall remove data it has stored for Customer without specific measures to make removal irreversible.
Article 19. Precedence and changes of conditions
19.1 UpscopeXL 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.
19.2 Changes shall be announced on the Website of UpscopeXL, by e-mail to Customer, or by means of any other channel for which UpscopeXL can prove that the announcement has reached Customer. Non-substantive changes of minor importance may be made without any announcement.
19.3 If Customer refuses to accept a change, Customer shall inform UpscopeXL thereof in Writing accompanied by its reasons within two weeks after the announcement of the changes. UpscopeXL may then reconsider the change(s) concerned. If UpscopeXL does not revoke the change(s) concerned, Customer may terminate the Agreement from the date the new conditions will enter into effect.
19.4 Provisions related to specific Services shall take precedence over general provisions related to all Services. Further arrangements between UpscopeXL 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 20. Other provisions
20.1 The Agreement is subject to Dutch law.
20.2 All disputes arising from the Agreement between UpscopeXL and Customer shall be submitted to the competent Dutch court for the district in which UpscopeXL is established.
20.3 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 a way that meets as much as possible the intent of the original Agreement and these General Terms and Conditions.
20.4 Information and announcements, including price indications, on the Website of UpscopeXL are subject to programming and typing errors. In case of any inconsistence between the Website and the Agreement, the Agreement prevails.
20.5 Log files and other, whether or not electronic, administration of UpscopeXL constitute full proof of statements of UpscopeXL and any (electronic) communication or stored version thereof received by UpscopeXL shall be deemed to be authentic, subject to evidence to the contrary to be provided by Customer.
20.6 Parties shall notify one another without delay in writing regarding any changes of name, postal address, e-mail address, telephone number, VAT number or bank account number.
20.7 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.
Contact details for UpscopeXL