1 Definitions
1.1 'MostHosted' means MostHosted, registered with the Dutch Chamber of Commerce under number 64643344.
1.2 'Customer' means the natural person or legal entity with whom MostHosted has entered into an Agreement or intends to do so.
1.3 'General Terms and Conditions' means the entirety of the provisions set out below.
1.4 'Application Form' means the form relating to an application for the provision of Services by MostHosted.
1.5 'Quotation' means any offer made by MostHosted to the Customer aimed at providing goods, Services or a combination thereof by any means.
1.6 'Service' means registering Domain Names in cooperation with the Foundation for Internet Domain Registration in the Netherlands (SIDN) in Arnhem and other authorised registration bodies; providing internet access; supplying hosting services; managing MostHosted servers on which data is stored, accessed, edited or transported electronically; providing space for one or more servers; making the required Software available; designing, developing and maintaining websites; and other related services expressly specified in the Agreement.
1.7 'Agreement' means any contractual relationship between MostHosted and the Customer aimed at providing goods, Services or a combination thereof by any means.
1.8 'Intellectual Property Rights' means rights in the results of human creativity, including but not limited to patent rights, design rights, copyrights, trademark rights, trade-name rights, plant breeders’ rights, topography or chip rights and related rights.
1.9 'Software' means the software and hardware made available by MostHosted to the Customer for the performance of the Agreement.
2 General
2.1 These General Terms and Conditions apply to all legal relationships, including negotiations, Quotations and Agreements between MostHosted and the Customer. The applicability of any general terms and conditions used by the Customer is expressly rejected. Deviations from these General Terms and Conditions are valid only if expressly agreed in writing by the parties.
2.2 If the Agreement conflicts with these General Terms and Conditions, the provisions of the Agreement prevail.
2.3 MostHosted reserves the right to supplement and/or amend these General Terms and Conditions at any time. Changes will be communicated to the Customer in an appropriate manner, for example via the website or by email. The amended General Terms and Conditions take effect immediately unless stated otherwise. If the Customer does not agree to a fundamental change, the Customer may terminate the Agreement without charge from the date on which the amended terms take effect.
2.4 Deviating provisions and agreements are legally valid only if expressly agreed in writing with MostHosted. Any terms used by the Customer are expressly rejected by MostHosted.
3 Quotations, negotiations and conclusion of the Agreement
3.1 All Quotations from MostHosted are non-binding unless the relevant Quotation expressly states otherwise in writing. Unless otherwise stated in the Quotation, it remains valid for a maximum of 30 days from the date shown in the Quotation.
3.2 MostHosted may discontinue negotiations concerning an Agreement that has not yet been concluded at any time.
3.3 If negotiations are discontinued, the Customer may never demand that negotiations continue or that MostHosted reimburse any costs incurred and/or loss suffered, regardless of the nature or cause of such loss.
3.4 The Agreement is concluded once the Agreement signed by MostHosted and the Customer, including the required completed Application Forms, has been received by MostHosted by post or email.
3.5 If the Customer is a legal entity, a certified extract from the relevant Dutch Chamber of Commerce register, no more than six months old, must be submitted when returning the Agreement and/or Application Form. The person representing the legal entity must demonstrate signing authority at MostHosted’s request.
3.6 Delivery periods stated by MostHosted are provided for information only and are therefore not binding unless expressly agreed otherwise. A delay in fulfilling an order can never give rise to compensation or termination of the Agreement.
4 Term of the Agreement
4.1 Unless expressly provided otherwise in these General Terms and Conditions or agreed otherwise in writing, the Agreement is entered into for an indefinite period, with a minimum term of twelve (12) months. Interim termination during this period is excluded.
4.2 Unless otherwise provided in these General Terms and Conditions, the Customer may not terminate an Agreement before the end of its term.
4.3 After the period agreed in the Agreement expires, the Agreement is automatically renewed for successive periods of one (1) year unless either party terminates it in writing at least one month before the end of the agreed period.
5 Fees
5.1 The fee payable by the Customer is based on the rate stated in the Agreement. All rates exclude VAT and any other levies imposed by public authorities.
5.2 MostHosted reserves the right to change rates during the term and will inform the Customer in good time. If the Customer does not wish to accept a rate change, the Customer may terminate the affected Agreement in writing.
6 Payment
6.1 All invoices must be paid by the Customer in accordance with the payment terms stated on the invoice. If no specific terms are stated, the Customer must pay within fourteen (14) days of the invoice date.
6.2 If the Customer fails to pay the amounts due within the agreed period, the Customer will be in default without notice of default being required and will owe statutory interest on the outstanding amount.
6.3 If the Customer continues to fail to pay after notice of default, the claim may be referred for collection. In addition to the total amount due, the Customer must then fully reimburse all extrajudicial and judicial collection costs, including all costs charged by external experts in addition to the costs awarded by a court, relating to collection of the claim or other enforcement of rights. These costs will be at least fifteen per cent (15%) of the total amount.
7 Suspension
7.1 If the Customer fails to perform one or more obligations correctly or on time, the Customer will be in default without prior notice and without MostHosted incurring any liability. MostHosted’s obligations will then be suspended automatically and immediately until the Customer has fully paid everything that is due, including any interest and costs.
7.2 Before performing its own obligations, MostHosted may require full performance by the Customer if it is reasonable to assume that the Customer will not be able to perform correctly and/or on time.
8 Retention and ownership of rights
8.1 All goods supplied to the Customer remain the property of MostHosted until the Customer has fully paid all amounts due for goods supplied or to be supplied or work performed or to be performed under the Agreement, as well as the amounts referred to in Articles 6.2 and 6.3 of these General Terms and Conditions, including interest and collection costs.
8.2 Rights are granted or, where applicable, transferred to the Customer subject to the condition that the Customer pays the agreed fees in full and on time.
9 Availability and management of the Service
9.1 MostHosted will make reasonable efforts to maximise the availability and usability of the Service. MostHosted will have any disruptions remedied as quickly as possible.
9.2 MostHosted cannot guarantee unrestricted internet access or that the other MostHosted Services will be available at all times.
9.3 MostHosted is not liable for the loss, substitution or corruption of data resulting from use of the Service, including email messages sent via the MostHosted network.
9.4 The Customer may be unable to access the Service while maintenance and/or repairs are being carried out. MostHosted will endeavour to schedule such work at times that cause the least inconvenience to the Customer.
9.5 To maintain and/or improve the quality and security of the Service, MostHosted may make changes to its equipment, Software and method of service delivery, including rules relating to access times, identification procedures, software types and the scope and content of information.
10 Customer obligations
10.1 The Customer must comply with applicable laws and regulations and behave as may be expected of a responsible and careful internet user.
10.2 The Customer shall use the Service only in accordance with the obligations, instructions and restrictions communicated by MostHosted, including those set out in these General Terms and Conditions. When using the Services, the Customer must not infringe third-party rights, act contrary to public decency or public order, or cause damage to third parties or MostHosted.
In particular, the Customer shall not infringe third-party intellectual property rights; distribute unlawful and/or criminal content; attempt to gain access to computer systems for which the Customer is not authorised; access other computer systems without permission; or engage in spamming or the unsolicited sending of large quantities of email with identical content.
10.3 The Customer must use the Service in such a way that the proper operation of MostHosted’s computer system is not impeded and other Customers are not prevented from using the Service.
10.4 The Customer must complete all Application Forms supplied by MostHosted fully and correctly. Incorrect or incomplete Application Forms will not be processed.
10.5 MostHosted reserves the right to deny the Customer access to the Service if the Customer acts contrary to the preceding paragraphs of this article. MostHosted will never be liable for compensation as a result of denying access under this article. The Customer indemnifies MostHosted against all third-party claims arising from this article.
11 Application for domain names
11.1 If MostHosted acts as an intermediary for the Customer in obtaining a domain name, the following provisions apply. Applications for and use of a domain name are also subject to the rules and procedures of the bodies responsible for registering domain names, including but not limited to the Foundation for Internet Domain Registration in the Netherlands. The body responsible for registering the domain name decides whether it is ultimately granted. MostHosted acts solely as an intermediary in this procedure and does not guarantee that an application will be approved.
11.2 The domain name is registered in the Customer’s name. The Customer is fully responsible for use of the domain and domain name. The Customer indemnifies MostHosted against any third-party claim relating to registration and use of the domain name.
12 MostHosted liability
12.1 MostHosted is liable for an attributable failure to perform an Agreement only if the Customer immediately and properly gives MostHosted written notice of default, allows a reasonable period to remedy the failure, and MostHosted continues to fail in the performance of its obligations after that period. The notice of default must describe the failure in as much detail as possible so that MostHosted can respond adequately.
12.2 MostHosted accepts statutory obligations to pay compensation only to the extent stated in this article.
12.3 MostHosted’s total liability arising on the Customer’s side from MostHosted’s actions in performing an Agreement is limited to compensation for direct loss up to the total invoice amounts payable by the Customer per year, provided that total liability will never exceed €500.00.
Direct loss means only: reasonable costs incurred to bring MostHosted’s performance into conformity with the Agreement; costs of necessarily keeping old systems operational for longer due to late delivery; reasonable costs of determining the cause and extent of direct loss; and reasonable costs of preventing or limiting direct loss.
12.4 MostHosted is not liable for indirect loss, including consequential loss, loss of profit, missed savings and loss resulting from business interruption.
12.5 Outside the situations described in Articles 12.3 and 12.4, MostHosted has no liability whatsoever to pay compensation, regardless of the legal basis of any claim. The Customer indemnifies MostHosted against all third-party claims.
12.6 The maximum amounts stated in Article 12.3 do not apply if and to the extent that the loss results from intent or gross negligence on the part of MostHosted and/or its management.
12.7 Any entitlement to compensation is conditional upon the Customer reporting the loss to MostHosted in writing as soon as possible after the event causing the loss and no later than three months thereafter.
13 Intellectual property rights
13.1 All intellectual property rights in all Software, equipment or other materials developed or made available under the Agreement, such as analyses, designs, documentation, reports, Quotations and preparatory materials, belong exclusively to MostHosted or its licensors. The Customer receives only a non-exclusive and non-transferable right of use for the term of the Agreement.
13.2 The Customer shall refrain from reproducing, publishing and/or distributing the Software and the associated materials.
13.3 The Customer may not remove or alter any indication relating to copyrights, trademarks, trade names or other intellectual property rights from the Software, equipment or materials, including indications concerning confidentiality and secrecy.
13.4 MostHosted may take technical measures to protect the Software. If MostHosted has secured the Software by technical means, the Customer may not remove or circumvent that protection. If the security measures prevent the Customer from making a backup copy, MostHosted will provide one upon request.
13.5 The parties may agree in a separate Agreement that MostHosted will transfer the intellectual property. Such transfer is subject to the condition that the Customer has paid all invoices relating to the relevant results.
13.6 If a further deed is required for the transfer of the rights referred to in Article 13.5, MostHosted will sign such a deed at the Customer’s first request.
14 Confidentiality and data processing
14.1 The parties will treat all confidential information obtained about each other’s businesses and relationships as strictly confidential. Information will in any event be regarded as confidential if designated as such by either party. This obligation applies during the term of an Agreement and for two years thereafter.
14.2 The Customer expressly authorises MostHosted to process and use the personal data provided by the Customer and to include it in a database maintained by MostHosted in connection with its services. Such data will always be stored and managed in accordance with applicable legislation.
14.3 The Customer agrees that personal data may, in accordance with applicable legislation, be processed for market research and direct marketing relating to MostHosted Services. If the Customer objects to such processing or wishes to withdraw consent previously given, the Customer may notify MostHosted in writing at any time.
14.4 The Customer may at any time request access to the data stored about the Customer in MostHosted’s database.
14.5 MostHosted will endeavour to take appropriate technical and organisational measures to protect personal data against loss or any form of unlawful use.
15 Force majeure
15.1 Neither party is required to perform an obligation if prevented from doing so by force majeure. Force majeure includes in any event: war or threat of war, riots, strikes, violence, fire, water damage, flooding, atmospheric conditions, prolonged power outages, modifications to or maintenance of third-party telecommunications and/or electricity networks, cable breaks, failures in communication links, or prevention or refusal of performance by suppliers on whom MostHosted depends in carrying out its work.
15.2 If a force-majeure situation continues for more than sixty days, the parties may terminate the Agreement in writing. The Customer remains liable in any event for the rate for the month in which termination occurs.
16 (Interim) termination
16.1 Either party may terminate an Agreement only if the other party, after receiving proper and sufficiently detailed written notice of default allowing a reasonable period to remedy the failure, remains attributably in breach of essential obligations arising from the Agreement and/or the General Terms and Conditions.
16.2 MostHosted may terminate an Agreement in whole or in part with immediate effect, without notice of default or court intervention, by written notification if the Customer is granted a suspension of payments, if bankruptcy is filed for in respect of the Customer, or if the Customer’s business is liquidated or terminated other than for restructuring or merger purposes.
16.3 If, at the time of termination, the Customer has already received performance under the Agreement, that performance and the related payment obligation will not be reversed unless MostHosted is in default in respect of that performance. Amounts invoiced by MostHosted before termination remain fully payable and become immediately due upon termination.
17 Miscellaneous
17.1 If a provision of these General Terms and Conditions is annulled, declared void or denied effect by a court, this will not affect the other provisions. The parties will consult to agree replacement provisions that reflect the purpose and intent of the original provision as closely as possible.
17.2 MostHosted may transfer its rights and obligations under an Agreement to another legal entity upon transfer of part of its business. The Customer may not transfer rights and obligations to third parties without MostHosted’s consent. MostHosted will not withhold consent on unreasonable grounds.
17.3 Article headings in the General Terms and Conditions are indicative only and do not confer any rights on the parties.
17.4 Provisions of the General Terms and Conditions and/or the Agreement that by their nature are intended to survive termination of the Agreement will remain in force.
17.5 The General Terms and Conditions are published on the MostHosted website and will be sent free of charge upon request.
17.6 These General Terms and Conditions have been filed with the Chamber of Commerce in Leeuwarden under number 64643344.
18 Governing law and jurisdiction
18.1 These General Terms and Conditions and all Agreements, Quotations and other documents governed by them are subject to Dutch law.
18.2 All disputes arising between the parties will be decided by the competent court in Leeuwarden.
19 30-day money-back guarantee
19.1 The 30-day money-back guarantee applies exclusively to new MostHosted customers.
19.2 The guarantee applies exclusively to hosting and VPS services purchased directly from MostHosted.
19.3 Domain names, licences, SSL certificates and other products or services that are separately registered, purchased, supplied or activated for the Customer are excluded from the guarantee and will not be refunded.
19.4 To use the guarantee, the Customer must contact MostHosted in writing within 30 days of the first order for the relevant hosting or VPS service and request termination under this guarantee.
19.5 The guarantee entitles the Customer only to a refund of the amount paid for the eligible hosting or VPS service. Excluded products, additional charges and components already supplied or purchased separately will not be refunded.
19.6 The guarantee may be used once per new customer and does not apply to renewals, upgrades, additional orders or services purchased by an existing customer.