Terms and conditions
Date | 29-09-2021
These general terms and conditions apply to all offers and/or tenders from Domeinenbank. Domeinenbank is a trade name of the enterprise UP Internet B.V. These general terms and conditions form an integral part of every agreement between Domeinenbank and a client.
Article 1. Definitions
1.1 Offer: a proposal from Domeinenbank for concluding an Agreement whether or not as a result of an Application submitted by the Client.
1.2 Application: a request from the Client to Domeinenbank for making an Offer.
1.3 Terms and Conditions: these terms and conditions.
1.4 Domeinenbank: the trade name of the enterprise UP Internet B.V. as established in Nijmegen and registered with the Chamber of Commerce under registration number 78055075.
1.5 Lease: the Agreement concerning the lease of a domain name whereby the Client pays a Rental Amount in exchange for acquiring the right of use of the domain name during the Lease Period.
1.6 Lease Period: the period during which the Client leases the domain name and acquires a right of use from Domeinenbank for this purpose.
1.7 Rental Amount: the amount that the Client owes for each Lease Period on the basis of the Lease for the leasing of a domain name.
1.8 Client: the natural person or legal entity acting in the course of a business or profession, who/which enters into an Agreement with Domeinenbank.
1.9 Purchase Option: the statement in the Offer that during the Lease Period the Client can submit a request for the purchase of the domain name concerned to Domeinenbank.
1.10 Purchase Agreement: the Agreement concerning the purchase and takeover of a domain name whereby the Client owes the Purchase Price in exchange for the obligation on the part of Domeinenbank to transfer the domain name by means of registering (having registered) this in the name of the Client.
1.11 Agreement: the agreement between Domeinenbank and the Client,
consisting of a Lease or Purchase Agreement.
1.12 Purchase Price: the amount that the Client owes to Domeinenbank in the context of the transfer of a domain name.
Article 2. The manner of concluding the contract
2.1 The Client can submit an Application for lease or purchase to Domeinenbank for the domain name required by the Client. Thereupon Domeinenbank can send by email an Offer without obligation, which will set out the domain name and the Rental Amount or Purchase Price. The Offer may contain additional terms and conditions. These will prevail over that which has been determined in these General Terms and Conditions.
2.2 An Agreement will come into effect at the time when Domeinenbank has received the acceptance of the Offer by the Client and after Domeinenbank has confirmed the receipt thereof to the Client in writing.
2.3 If several parties accept an Offer at the same time for the same domain name, the time of the receipt of the first acceptance as recorded by Domeinenbank will be decisive.
Article 3. Performance of the Lease
3.1 Following the coming into effect of a Lease and the receipt of the Rental Amount, the Client will acquire an exclusive, non-transferable, right of use of the domain name set out in the Offer for the Lease Period referred to therein. The use of the domain name during the Lease Period is subject to the rules of conduct set out in article 6 of these General Terms and Conditions.
3.2 Domeinenbank will provide its cooperation for the benefit of the Client in the making available of the domain name in accordance with the reasonable instructions of the Client, for example by forwarding the domain name to another URL or by entering the change of the name servers.
3.3 The Client can at any time have the forwarding or change of the name servers for the leased domain name adjusted by means of submitting a request in writing for this purpose to Domeinenbank’s helpdesk. Domeinenbank will endeavour to process such a request as quickly as possible.
3.4 During the Lease Period Domeinenbank will endeavour to keep the forwarding or change of the name servers available.
Article 4. Purchase Option within the Lease
4.1 Only if the Offer for entering into a Lease includes a Purchase Option will the Client have the option during the Lease to become the holder of the domain name, subject to the terms and conditions set out in the Offer and this article.
4.2 If the Client wishes to make use of the Purchase Option, the Client can send an Application for this purpose via the Client’s account or by email to Domeinenbank. The date on which the Application is received by Domeinenbank will determine whether the Purchase Option has been used in a timely manner. The Application must be regarded as an invitation for making an Offer for entering into a Purchase Agreement.
4.3 Following the receipt of the Application as referred to in the previous subclause, Domeinenbank will make an Offer for entering into a Purchase Agreement. The Offer will be valid for seven (7) days following which it will lapse, unless another period of validity has expressly been set out. The Client can accept this Offer by means of paying the Purchase Price to Domeinenbank within the period of validity of the Offer.
4.4 The Lease will terminate as soon as a Purchase Agreement has come into effect with regard to the same domain name. Under no circumstances will refund of the rent already paid take place.
Article 5. Performance of the Purchase Agreement
5.1 Following the coming into effect of a Purchase Agreement and after the Client has fulfilled the terms and conditions set out, Domeinenbank will execute the actions that are necessary for effecting the transfer of the domain name and for making the Client the holder of the domain name. If cooperation from the Client is required for this, the Client will upon first request provide the required cooperation.
5.2 The transfer of a domain name will exclusively take place after Domeinenbank has received the payment in full of the Purchase Price and the signed Purchase Agreement.
5.3 Following a successfully transfer of a domain name Domeinenbank will send a confirmation email to the Client.
Article 6. The rules of conduct for leasing domain names
6.1 The rules of conduct in this article apply to the use of the domain name in the context of a Lease.
6.2 During the Lease Period, the Client is prohibited from using the domain name – directly or indirectly – whereby Dutch or other legislation or regulations applicable to the Client or Domeinenbank will be infringed, or as the case may be whereby third party rights will be infringed.
6.3 Domeinenbank prohibits (whether or not this is legal) the Client from using the domain name in a way that in any manner:
– is manifestly humiliating, libellous, insulting, racist, discriminating or hatemongering;
– disseminates child pornography or bestiality pornography, or that is apparently of
– results in the infringement of the privacy of third parties;
– contains hyperlinks, torrents, or makes references to (finds the location of) material
which manifestly infringes copyright, related rights, or portrait rights;
– infringes the trademark rights or trade names of third parties;
– contributes to the dissemination of unsolicited commercial, charitable or idealistic communication;
– contributes to the dissemination of malicious contents such as viruses or spyware;
– contains other content that is undesirable in the opinion of Domeinenbank.
6.4 The Client must prevent the value of the domain name from being affected. The Client must in particular (but not exclusively) prevent the domain name from ending up on any black list (such as antispam lists or the AdSense programme of Google). If this were to happen, the Client will incur an immediately due and payable financial penalty of EUR 50,000 plus a financial penalty of EUR 2,500 for each day during which the reporting remains on the black list, which will be without prejudice to the right of Domeinenbank to recover the damage actually suffered from the Client. The Client must furthermore do everything possible to reverse the negative effect on the value. No financial penalty will be
imposed if the Client can prove that the reporting on the black list cannot reasonably be attributed to the Client.
6.5 If, in the opinion of Domeinenbank, damage or another danger arises for the
functioning of the computer system or the network of Domeinenbank or of third parties and/or of the provision of service via the the internet, in particular due to incorrect DNS settings, Domeinenbank will be entitled to take all measures that it reasonably deems necessary for avoiding or preventing this danger.
6.6 If Domeinenbank receives a complaint regarding any infringement of this article by the Client, or discovers itself that this appears to be the case, Domeinenbank will inform the Client as quickly as possible of the complaint or infringement. The Client will respond as soon as possible, following which Domeinenbank will decide what action to take. In exceptional cases where the complainant, in the opinion of Domeinenbank, has requested
that the complaint is not forwarded, or if Domeinenbank believes that the infringement is indisputable, Domeinenbank will not have to forward the complaint.
6.7 If Domeinenbank is of the opinion that there is an infringement, Domeinenbank will remove the domain name from the DNS, or will take other measures that Domeinenbank deems suitable having regard to the nature of the infringement.
6.8 Domeinenbank is at any time entitled to report any criminal offences that it becomes aware of and to provide cooperation to the orders duly issued by judicial authorities or other authorities. Furthermore, Domeinenbank will be entitled to provide the name, address and other identifying data of the Client to a third party who complains that the Client has infringed that third party’s rights or these General Terms and Conditions, provided that the accuracy of this complaint is reasonably sufficiently plausible and the third party has a clear interest in the issuing of the data. Although Domeinenbank strives to act as reasonably, carefully and adequately as possible after receiving complaints with regard to the Client, Domeinenbank will never be obliged to compensation of damage as a result of measures as referred to in this article.
Article 7. Indemnities
7.1 The Client indemnifies Domeinenbank against all claims by third parties related to the domain name and the use thereof, except insofar as determined in the following subclause. The Client is the sole party liable towards third parties for infringements, breaches of rights, and other unlawful act acts related to the domain name.
7.2 In the context of a Lease, the Client indemnifies Domeinenbank against claims by third parties whereby keeping the domain name registered as such (therefore apart from the use of any contents) is regarded as unlawful towards these third parties. If it is determined in such a case that Domeinenbank must relinquish or terminate the domain name, the remaining part of the Rental Amount will be paid back to the Client.
7.3 The Client is fully liable towards Domeinenbank for all damage that Domeinenbank suffers if a competent authority (such as a court, government agency, arbitration board, or a disputes committee authorised pursuant to an agreement) determines that the domain name must be relinquished or terminated, if the cause thereof can be attributed to the Client.
Article 8. Prices, invoicing and payment
8.1 All prices referred to in an Offer, tender, or other materials originating from
Domeinenbank, are excluding VAT, unless expressly stated otherwise. All prices are subject to the proviso of programming errors or typographical errors.
8.2 The Client agrees to electronic invoicing.
8.3 In the context of a Lease the Rental Amount will always be charged and collected prior to the Lease Period. The Client will be obliged to ensure that collection instructions can be executed, inter alia by means of keeping a sufficient balance available for this purpose in the account for which the Client has issued authorisation. If collection instructions have not succeeded, regardless of the cause, it will be necessary for the Client to promptly make the
payment in another manner.
8.4 If a Rental Amount has not been paid within thirty (30) days after the
commencement of the Lease Period, Domeinenbank will be entitled to terminate the Agreement with immediate effect.
Article 9. Limitation of liability
9.1 Domeinenbank is exclusively liable towards the Client for direct damage related to a failure in the performance of the Agreement that can be attributed to Domeinenbank. Direct damage only includes all damage consisting of:
a. damage to tangible goods (property damage);
b. the reasonable costs for establishing the cause and extent of the damage and for the prevention and limitation of this damage, insofar as related to the direct damage as referred to here.
9.2 Domeinenbank is under no circumstances liable for compensation of indirect damage or consequential loss, such as: loss due to lost turnover or profits, loss due to delay, loss due to lost data, damage due to exceeding of periods as a result of changed circumstances, damage as a result of providing inadequate cooperation, information or materials by the Client and damage due to information or advice provided by Domeinenbank the contents of which do not expressly form part of the Agreement.
9.3 In the event of liability pursuant to subclause 1 of the present article, the maximum amount that will be paid per incident – whereby a series of related incidents must be regarded as one single incident – will be limited to an amount equal to the payments that the Client has paid under the Agreement to Domeinenbank (excluding VAT) in the three (3) months prior to the damage-causing event.
9.4 The liability on the part of Domeinenbank due to attributable failure in the performance of the Agreement only arises if the Client has promptly and properly given notice of default in writing to Domeinenbank, thereby providing a reasonable period within which the failure can be remedied, and Domeinenbank attributably fails to fulfil its obligations after that
period as well. The notice of default must contain a description as detailed as possible of the failure in order for Domeinenbank to be able to respond adequately. The notice of default must be received by Domeinenbank within thirty (30) days after the discovery of the damage.
9.5 Domeinenbank does not accept any liability for incorrectly entered DNS records.
9.6 The exclusions and limitations of liability referred to in this article will lapse if and insofar as the damage is the result of an intentional act or wilful recklessness on the part of the management of Domeinenbank.
9.7 None of the parties can be obliged to fulfil any obligation if a circumstance which is beyond the control of parties and which at the concluding of the Agreement could not or ought not to have already been foreseeable prevents any reasonable possibility of fulfilment.
Article 10. Duration and termination of the Lease
10.1 The Lease will run for the Lease Period set out in the Offer, or in the absence thereof for a period of twelve (12) months.
10.2 Following this period the Lease will be renewed tacitly always for the same
period as referred to in subclause 1, unless one of the parties terminates this in
writing and in a timely manner.
10.3 Insofar as not determined otherwise in these General Terms and Conditions or in the Lease, a Lease cannot be terminated in the interim. The Client as well as
Domeinenbank can terminate the Lease with effect from the end of the duration, with due observance of a notice period of three months.
10.4 In derogation from the previous subclause, Domeinenbank may suspend or
terminate the Lease in writing with immediate effect if at least one of the following special grounds applies:
a. The Client is in default with regard to an essential obligation under the Agreement;
b. A petition for the bankruptcy of the Client has been submitted;
c. The Client has applied for a moratorium;
d. The Client has not paid the Rental Amount within thirty (30) days after the commencement of the Lease Period;
e. The activities of the Client are terminated or liquidated.
10.5 If Domeinenbank suspends the fulfilment of the obligations, it will retain its claims under the law and the Agreement, including the claim to payment for the services that have been suspended.
10.6 Domeinenbank will be permitted to lease or sell the Domain Name to anyone including competitors of the Client, with immediate effect from the end date.
Article 11. Adjustments to prices and terms and conditions
11.1 Domeinenbank retains the right to amend and/or supplement the Agreement and/or these General Terms and Conditions.
11.2 Domeinenbank has the right to increase the price at its discretion at every extension of a Lease.
11.3 The Client will be informed by email, or by means of another channel regarding which Domeinenbank can prove that the notification has been received by the Client, of amendments and price increases no later than thirty (30) days prior to the coming into effect thereof.
Article 12. Miscellaneous provisions
12.1 The law of the Netherlands applies to this agreement.
12.2 Insofar as mandatory legal provisions do not prescribe otherwise, all disputes that may arise from the Agreement will be submitted to the Dutch court with competent jurisdiction in the district where Domeinenbank is established.
12.3 If any provision of this Agreement appears to be null and void, this will not affect the validity of the entire Agreement. Parties will in that event record a new provision (new provisions) for replacement whereby, as much as possible within the law, the intention of the original Agreement and General Terms and Conditions will be implemented.
12.4 “In writing” is also taken to mean, in addition to paper documents, email messages and communication by fax, provided that the identity of the sender and the integrity of the messages are sufficiently ascertained.
12.5 The log files and other, whether or not electronic, administrative records of Domeinenbank will form conclusive evidence of arguments of Domeinenbank and the version of any (electronic) communication received or saved by Domeinenbank will apply as authentic, unless there is proof to the contrary to be provided by the Client.
12.6 Each party is only entitled to transfer its rights and obligations under the Agreement to a third party with prior permission in writing from the other party. However, this permission is not necessary in the event of corporate takeover or takeover of the majority of the shares of the party concerned.
12.7 At the entering into of the Agreement the Client must state a working email address. Domeinenbank will be permitted to send all notifications related to the
Agreement to this email address. The Client must ensure that email messages originating from Domeinenbank will not be blocked by Spam filters and suchlike.
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