General Terms & Conditions
ARTICLE 1 DEFINITIONS1.1 Account: the customer name by which the customer gains access to the XS4ALL system
1.2 Account details: the details which XS4ALL collects and stores in order to send accounts to the customer, where applicable including billing information and as far as possible including consumption statistics relating to data traffic
1.3 E-mail address: an address code issued in the name of the customer for the exchanging of electronic messages via the internet
1.4 Fair use: reasonable use by the customer of data traffic, disk space and/or loading of the system, as specified in detail by XS4ALL in supplementary terms and conditions for services to which this applies
1.5 Manual: software and customer documentation which XS4ALL makes available to the customer during the term of the agreement for access to the system and the internet
1.6 Homepage: an internet page created in the name of the customer or a title and introduction page of a website on the internet
1.7 Dialup number: the XS4ALL telephone number on which the customer can access the system and the internet
1.8 Customer: the party who has concluded an agreement with XS4ALL
1.9 Login procedure: the procedure prescribed by XS4ALL to enable the customer to access the system and the internet
1.10 Netiquette: the generally accepted rules of conduct on the internet as set out in RFC 1855 (ftp://ftp.ripe.net/rfc/rfc1855.txt) and future amendments thereof
1.11 Agreement: the agreement between XS4ALL and a customer, on the basis of which XS4ALL provides services for the customer
1.12 Disk space: memory space which XS4ALL makes available to a customer, for example in order to send and receive e-mail, maintain a homepage or website and access other XS4ALL services
1.13 System: computer and related equipment with which XS4ALL provides the customer with access to the internet
1.14 Website: one or more integrated internet pages preceded by a homepage
1.15 Traffic data: the other data which the customer generates on the XS4ALL systems by using the services of XS4ALL
1.16 XS4ALL: XS4ALL Internet bv
1.17 XS4ALL services: the services or instructions which XS4ALL carries out on behalf of customers
ARTICLE 2 GENERAL
2.1 These general terms and conditions apply to all offers and agreements between XS4ALL and a customer, unless the parties have expressly departed from these terms and conditions in writing.
2.2 All offers made by XS4ALL are non-binding. An agreement comes into existence when an agreement form sent to a prospective customer or an application form/direct debit mandate is returned, duly completed and signed, to XS4ALL, or when XS4ALL has otherwise provided services for the prospective customer on the latter's instructions. Once the offer has been accepted by the customer, it may be revoked by XS4ALL immediately. If revocation has taken place, no agreement shall come into existence and XS4ALL shall be obliged to repay to the customer all sums which XS4ALL has already received. XS4ALL may refuse for its own reasons to accept a prospective customer.
2.3 XS4ALL is entitled to amend these general terms and conditions at any time. Amendments shall come into force one (1) month after notification in the manner specified in article 12.2. Prior to the implementation of such amendments, any customer who does not agree to them shall be authorised, by departure from article 10.1, to terminate the agreement from the date on which the amended terms and conditions come into force.
ARTICLE 3 OBLIGATIONS OF XS4ALL
3.1 XS4ALL shall endeavour, in the manner expected of a good service provider, to:
- provide the customer with a connection to the system for the XS4ALL service(s) specified in the agreement;
- establish and maintain the connections which can be made to the internet through the system;
- secure the stored data.
3.3 XS4ALL shall refrain from viewing customers' personal e-mail and/or files and shall not make these available to third parties, unless it is obliged to do so by law or court judgment, or unless the customer acts, or is suspected of acting, in contravention of articles 4.2 to 4.4 inclusive of these general terms and conditions. XS4ALL has set out this policy in detail in a separate privacy statement. This statement is available online at http://www.xs4all.nl/uk/overxs4all/privacy/index.php
ARTICLE 4 OBLIGATIONS OF THE CUSTOMER
4.1 The customer shall maintain the attitude and behaviour that may be expected of a responsible and careful internet user. The customer shall notify XS4ALL in writing as soon as possible of any changes in relevant details.
4.2 The customer shall refrain from inconveniencing other customers or internet users and from causing damage to the system. The customer is not permitted to start processes or programs - via the system or otherwise - which the customer knows or could reasonably suspect will cause inconvenience or damage to XS4ALL, other customers or internet users. This expressly includes indirect damage as a result of misconfiguration on the part of the customer, for example, but not exclusively, open relaying through an incorrectly configured mail server. The customer is only permitted to start processes or programs if there is a direct connection, permitted by XS4ALL, to the system.
4.3 The customer is not permitted to use the system and the disk space for actions and/or conduct contravening the applicable legal provisions, netiquette, the guidelines of the Reclame Code Commissie [Dutch Advertising Standards Authority], the agreement or these general terms and conditions. This includes, but not exclusively, the following actions and conduct:
- spamming: the unsolicited sending of large amounts of e-mail with the same content and/or the unsolicited posting of a message with the same content in large numbers of newsgroups on the internet. This includes spam which is sent through any other provider referring to a website, e-mail address or other service at XS4ALL;
- infringement of copyright-protected works or any other conduct which violates the intellectual property rights of third parties;
- the publication or distribution of child pornography;
- sexual intimidation or other harassment of persons;
- hacking: gaining unauthorised access to other computers or computer systems on the internet.
The first customer who succeeds in attaining a position equivalent to that of the XS4ALL system administrator will be offered six months' free use of the system, provided that the said customer explains how he or she succeeded in hacking the system, has not damaged the system or other customers and has respected the privacy of other customers. Each customer hereby gives consent for other customers to attempt to hack the system under the aforementioned conditions.
4.5 The customer is not permitted to assign to third parties, or to allow third parties to use, his or her account, the manual or other rights resulting from the agreement, unless XS4ALL has given its express written consent. Without prejudice to the foregoing, the customer is permitted to commission a third party to design, publish and maintain a website. The customer shall nevertheless remain responsible for the use of his or her account and password.
4.6 The customer shall be responsible for the necessary hardware and software, configuration, peripheral equipment and connections required in order to access the system.
4.7 The customer shall be bound by the amount of disk space as described in the agreement. The customer shall be responsible for ensuring that this limit is not exceeded. In the event that it is exceeded, XS4ALL shall be authorised to delete data in order to maintain the efficient operation of the XS4ALL services.
4.8 The customer hereby gives consent for XS4ALL to include his or her personal details in XS4ALL's register, which is required for its administration and management tasks. This register contains both account and traffic data. It is accessible only to XS4ALL and is not made available to third parties, unless XS4ALL is obliged to do so by law or court judgment. The privacy declaration includes a more specific description of this registration at http://www.xs4all.nl/voorwaarden/privacy.html
4.9 The customer may request to inspect or delete his or her own account details. He or she may send such requests to XS4ALL, by mail or fax, accompanied by (a copy of) the (valid) identity document or Chamber of Commerce extract. XS4ALL shall respond to such requests free of charge and within three working days by e-mail to the customer's account.
On payment of a fee the customer shall also be entitled to carry out a limited inspection of the traffic data for the account. This concerns the login times of his or her own account, for a maximum of three months before the time of the request. This inspection also requires a copy of a valid identity document or Chamber of Commerce extract. XS4ALL shall respond to such requests within five working days by e-mail to the customer's account.
XS4ALL shall destroy the passport copies immediately after use.
In the case of some services, customers may inspect their own data traffic, to the extent that such details are known. Specific supplementary terms and conditions are notified separately for these services.
ARTICLE 5 LIABILITY
5.1 XS4ALL shall not be liable for damage, in the broadest sense, suffered by the customer, unless such damage has been caused by gross negligence or intent on the part of XS4ALL. In particular, XS4ALL shall not be liable for damage which is associated with or results from: interruptions in, or blocking of access to, the system or the internet within XS4ALL or third parties, deficiencies in the security of data stored by the customer on XS4ALL's systems, actions of other customers or internet users or changes in dialup numbers or in the login procedure, account or e-mail address.
5.2 Any customer who violates his or her obligations arising from this agreement or these general terms and conditions shall be liable for all the resulting damage suffered by XS4ALL.
5.3 The customer indemnifies XS4ALL in respect of all third party claims relating to damage or other losses resulting in any way from the customer's use of the account, the system or the internet, or as a result of the customer's failure to fulfil his or her obligations arising from the agreement or these general terms and conditions.
5.4 XS4ALL shall be entitled without further notice to immediately disable the system connection provided for the customer, if and as long as the customer contravenes the provisions of articles 4.1 to 4.5 inclusive. In such cases XS4ALL shall also be entitled, if the seriousness of the contravention justifies it, to terminate the agreement with immediate effect, without the customer being entitled to any compensation from XS4ALL.
ARTICLE 6 XS4ALL SERVICES
6.1 To provide access to the system and the internet, XS4ALL provides the customer with a non-exclusive and non-assignable right to use the system and the manual during the term of the agreement. The customer is not permitted to copy the manual other than as is necessary for normal, own use and backup purposes. When making copies, the customer shall not change any marks which identify its ownership and origin.
6.2 The use of some services is governed by specific supplementary terms and conditions. These supplementary terms and conditions are notified separately for each service. They include, but not exclusively, a fair use policy, access rights and property rights.
6.3 XS4ALL offers customers the possibility of publishing a homepage. XS4ALL makes a limited amount of disk space available for this purpose. For the operation of a commercial homepage or website, to be defined at the discretion of XS4ALL, additional specified charges shall be payable. If XS4ALL designs a homepage or website on behalf of a customer, XS4ALL shall retain all intellectual property rights in respect of such homepage or website.
6.4 XS4ALL shall be entitled to deny the customer access to the system or to restrict such access if, in a calendar month, the customer exceeds the amount of (free) data traffic or the fair use of data traffic, disk space and loading of systems as specified in the agreement. By these agreements the customer is obliged to pay to XS4ALL the agreed costs in respect of such excesses. XS4ALL shall implement any denial or restriction no earlier than five (5) days after the customer has been informed by XS4ALL. XS4ALL shall not be liable for compensation in respect of any damage resulting from denial or restriction. The proof provided by the XS4ALL administration of the exceeding of the amount of data traffic shall be binding on the parties unless the customer provides proof to the contrary.
ARTICLE 7 SERVICES OF THIRD PARTIES
7.1 For many services XS4ALL depends on services or networks of third parties, for example in the case of cable internet or ADSL. In such cases the customer usually concludes two different agreements, one with XS4ALL and one with the third party. XS4ALL shall not be liable for any damage whatsoever caused by services or networks of third parties, including faults in the networks or infrastructure of third parties.
7.2 On payment of a fee XS4ALL will register domains with Stichting Internet Domeinregistratie Nederland [The Dutch Internet Domain Registration Foundation] on behalf of customers. Domain names are chosen at the expense and risk of the customer and XS4ALL accepts no liability whatsoever for the choice and use of the domain name.
ARTICLE 8 COMPLAINTS
8.1 XS4ALL shall only consider complaints if they relate to XS4ALL services and/or the actions or conduct of customers.
8.2 XS4ALL shall endeavour to deal with complaints concerning XS4ALL services as effectively as possible and to bring about improvements in the services it provides. Complaints, which must be complete and clearly described, may be lodged with the customer services department within three working days, preferably by e-mail. Where possible, XS4ALL shall deal with the complaint three working days after receipt. Where possible, the customer shall receive a report three working days after receipt of the complaint.
8.3 XS4ALL shall endeavour to deal with complaints relating to the actions or conduct of XS4ALL customers as effectively as possible. Customers may send complaints concerning abuse, spam or illegal actions by XS4ALL customers within three working days to the e-mail address abuse@xs4all.nl, provided that such complaints are accompanied by the relevant log data, including times and/or full headers and a clear description of the grounds for the complaint.
8.4 The lodging of a complaint shall not affect the customer's other obligations.
ARTICLE 9 MANAGEMENT OF THE SYSTEM
9.1 XS4ALL shall be entitled without prior notice to take the system (temporarily) out of service or to restrict its use to the extent necessary in order to meet reasonable maintenance requirements or to enable XS4ALL to carry out the necessary adjustments or improvements to the system, without the customer being entitled to any compensation from XS4ALL.
9.2 XS4ALL shall be entitled to make changes to the dialup numbers, login procedure, account and e-mail addresses at any time, without the customer being entitled to any compensation from XS4ALL. In such cases XS4ALL shall inform the customer of the changes as soon as possible.
ARTICLE 10 TERM AND TERMINATION OF THE AGREEMENT
10.1 The agreement shall in all cases be entered into for the term specified in the agreement. At the end of the first term the agreement shall be extended automatically for successive equivalent periods. The agreement may be terminated subject to a notice period of one (1) month prior to the end of the agreed term. Notice of termination may be given in writing or by fax, on the understanding that the notice period shall commence on the date on which notice of termination is received by XS4ALL.
ARTICLE 11 DISSOLUTION
11.1 If the customer fails to fulfil, or fails to fulfil in a proper or timely manner, any obligation arising from an agreement concluded with XS4ALL or these general terms and conditions, or if there is serious doubt as to whether the customer is able to fulfil his or her contractual obligations towards XS4ALL, XS4ALL shall be entitled, without serving notice of default and without recourse to the court, either to suspend the agreed XS4ALL service(s) or to dissolve the agreement in full or in part, without XS4ALL being liable to any compensation and without prejudice to the other rights accruing to XS4ALL.
11.2 XS4ALL shall be authorised, without serving further notice of default and without recourse to the court, to dissolve the agreement with immediate effect and to discontinue the XS4ALL services if the customer:
- has given XS4ALL false and/or incorrect personal details;
- has failed to provide correct details or notify changes;
- has entered into the agreement under false pretences;
- contravenes articles 4.1 to 4.5 inclusive;
- has been declared bankrupt or has petitioned for bankruptcy;
- has applied for a suspension of payments;
- has been placed in receivership or administration or has been dissolved.
ARTICLE 12 PRICES
12.1 The customer shall be required to pay a fee based on the XS4ALL service(s) to be supplied. All prices exclude VAT, administration charges and any additional levies and/or duties, unless stated otherwise.
12.2 XS4ALL shall be entitled to amend the fees and other charges at any time. Such amendments shall be announced in the newsgroup XS4ALL.announce and in the XS4ALL web pages no later than two months before they come into force. Prior to the implementation of such amendments, any customer who does not agree to them shall be authorised, by departure from article 10.1, to terminate the agreement from the date on which the amendments come into force.
ARTICLE 13 PAYMENT
13.1 The fees payable to XS4ALL must be paid in advance, unless agreed otherwise in writing. The customer shall be obliged to settle the due amount no later than fourteen (14) days after the invoice date.
13.2 If the customer fails to pay within the period specified in article 13.1, he or she shall be automatically in default and, without further notice of default being served, shall be liable to pay statutory interest on the invoice amount. All reasonable costs of obtaining extrajudicial settlement shall also be for the account and risk of the customer. These shall amount to 15% of the sum due, subject to a minimum of EUR 10, unless XS4ALL demonstrates that the actual incurred costs are higher.
ARTICLE 14 FORCE MAJEURE
14.1 Force majeure shall be deemed to refer to all external causes which were not reasonably foreseeable and as a result of which XS4ALL is not able to fulfil its obligations towards the customer. These include, but not exclusively, faults in the connection to the internet, faults in the telecommunications infrastructure and faults in networks.
14.2 XS4ALL shall be entitled to invoke force majeure if the circumstance which prevents (further) fulfilment occurs after XS4ALL was required to fulfil its obligation.
14.3 During the period of force majeure the delivery and other obligations of XS4ALL shall be suspended. If the period in which XS4ALL is unable to fulfil its obligations as a result of force majeure lasts longer than two (2) weeks, each of the parties shall be authorised to dissolve the agreement without recourse to the court, without the other party having any right to compensation.
ARTICLE 15 DISPUTES AND APPLICABLE LAW
15.1 All agreements between XS4ALL and the customer shall be governed by the law of the Netherlands. The court of Amsterdam shall have exclusive jurisdiction in the event of disputes resulting from or relating to agreements between XS4ALL and the customer.
15.2 If the customer, not acting in the exercise of a profession or business, does not agree with the election of jurisdiction in article 15.1, he or she shall be authorised, no later than one (1) month after XS4ALL has made use of article 15.1, to elect to have the dispute settled by the legally competent court.
15.3 If one or more provisions of these general terms and conditions is/are declared invalid or voidable, the validity of the remaining provisions shall be unaffected. In the event of invalidity of one or more provisions of these terms and conditions, the parties shall be bound by rules which are as far as possible of equivalent import and are not liable to be declared invalid.
Deposited at the registry of Amsterdam District Court on 12 September 2000 under the number 182/2000.