Terms of Service

Updated January 2022

This page contains the Leafcloud terms of service. You can find our Privacy Policy here

1. General provisions

3.1 All prices are exclusive of turnover tax (VAT) and other levies imposed by the government. All prices stated by the supplier are in euros (EUR) and the customer must make all payments in euros.

3.2 The customer may not derive any rights or expectations from a cost estimate or budget issued by the supplier unless the parties have otherwise agreed in writing. An available budget made known to the supplier by the customer shall only apply as a (fixed) price agreed between the parties for the performance to be delivered by the supplier if this has been expressly agreed in writing.

3.3 If, according to the contract concluded between the parties, the customer consists of several natural persons and/or legal entities, each of these natural persons and/or legal entities shall be jointly and separately liable towards the supplier for performance of the contract.

3.4 Information from the supplier’s records shall count as conclusive evidence with respect to the performance delivered by the supplier and the amounts owed by the customer for delivery of this performance, without prejudice to the customer’s right to produce evidence to the contrary.

3.5 If a periodic payment obligation on the part of the customer applies, the supplier shall be entitled to adjust, in writing and in accordance with the index or other standard optionally included in the contract, the applicable prices and rates to the term specified in the contract. If the contract does not expressly provide for the possibility on the part of the supplier to adjust the prices or rates, the supplier shall always be entitled to adjust, in writing and with due observance of a term of at least three months, the applicable prices and rates. If the customer does not agree to the adjustment in this latter case, the customer shall be entitled to terminate the contract in writing within thirty days following notice of the adjustment, which termination shall take effect on the date on which the new prices and/or rates would take effect.

3.6 The parties shall record the date or dates on which the supplier shall charge the customer for the performance agreed in the contract. Amounts owed must be paid by the customer in accordance with the agreed payment terms or the payment terms stated on the invoice. The customer may not suspend any payment and may also not set off any amounts owed.

3.7 If the customer fails to pay amounts due or fails to do so on time, the customer shall owe statutory interest for commercial contracts on the outstanding amount without a demand for payment or a notice of default being required. If the customer fails to pay the amount due after a demand for payment or a notice of default has been issued, the supplier shall be entitled to refer the debt for collection, in which case the customer must pay all judicial and extrajudicial costs, including all costs charged by external experts. The foregoing shall be without prejudice to the supplier’s other legal and contractual rights.

10.1 If the supplier is prepared to undertake to transfer an intellectual property right, such a commitment may only be undertaken expressly and in writing. If the parties agree in writing that an intellectual property right with respect to software, websites, data files, equipment or other materials specifically developed for the customer shall transfer to the customer, this shall be without prejudice to the supplier’s right or option to use and/or operate, either for itself or for third parties and without any restriction, the parts, general principles, ideas, designs, algorithms, documentation, works, programming languages, protocols, standards and the like on which the developments referred to are based for other purposes. The transfer of an intellectual property right shall likewise be without prejudice to the supplier’s right to complete developments, either for itself or for a third party, that are similar to or derived from developments that were or are being completed for the customer.

10.2 All intellectual property rights to the software, websites, data files, equipment and training, testing and examination materials, as well as other materials like analyses, designs, documentation, reports and offers, including preparatory materials in this regard, developed or made available to the customer under the contract are held exclusively by the supplier, its licensors or its suppliers. The customer shall have the rights of use expressly granted under these general terms and conditions, the contract concluded in writing between the parties and the law. A right accorded to the customer is non-exclusive and may not be transferred, pledged or sublicensed.

10.3 The customer may not remove or change any indication concerning the confidential nature of or concerning the copyrights, brands, trade names or any other intellectual property right pertaining to the software, websites, data files, equipment or materials, or have any such indication removed or changed.

10.4 Even if not expressly provided for in the contract, the supplier may always take technical measures to protect equipment, data files, websites, software made available, software to which the customer is granted direct or indirect access, and the like in connection with an agreed limitation in terms of the content or duration of the right of use of these items. The customer may not remove or bypass such technical measures or have such technical measures removed or bypassed.

10.5 The supplier indemnifies the customer against any claim of a third party based on the allegation that software, websites, data files, equipment or other materials developed by the supplier itself infringe an intellectual property right of that third party, subject to the condition that the customer immediately informs the supplier in writing about the existence and content of the claim and leaves the settlement of the claim, including any arrangements made in this regard, entirely to the supplier. The customer shall provide the powers of attorney and information required to the supplier and assist the supplier to defend itself against such claims. This obligation to indemnity shall not apply if the alleged infringement concerns (i) materials made available to the supplier by the customer for use, modification, processing or maintenance or (ii) changes made or commissioned by the customer in the software, website, data files, equipment or other materials without the supplier’s written permission. If it is irrevocably established in court that software, websites, data files, equipment or other materials developed by the supplier itself is or are infringing any intellectual property right held by a third party, or if, in the opinion of the supplier, there is a good chance that such an infringement is occurring, the supplier shall if possible ensure that the customer can continue to use, or use functional equivalents of, the software, websites, data files, equipment or materials supplied. Any other or further obligation to indemnify on the part of the supplier due to infringement of a third party’s intellectual property right is excluded.

10.6 The customer guarantees that making equipment, software, material intended for websites, data files and/or other materials and/or designs available to the supplier for the purpose of use, maintenance, processing, installation or integration does not infringe any rights of third parties. The customer indemnifies the supplier against any claim of a third party based on the allegation that such making available, use, maintenance, processing, installation or integration infringes a right of that third party.

10.7 The supplier is never obliged to perform data conversion unless doing so has been expressly agreed in writing with the customer.

11.1 The parties acknowledge that the success of work in the field of information and communications technology depends on proper and timely cooperation between the parties. The customer shall always extend, in a timely manner, the cooperation reasonably required by the supplier.

11.2 The customer bears the risk of selecting the items, goods and/or services to be provided by the supplier. The customer must always exercise the utmost care to guarantee that the requirements that the supplier’s performance must meet are accurate and complete. Measurements and particulars given in drawings, images, catalogues, websites, offers, advertising material, standardisation sheets and the like are not binding for the supplier unless expressly stated otherwise by the supplier.

11.3 If the customer deploys employees and/or auxiliary persons in the performance of the contract, these employees and auxiliary persons must have the knowledge and experience required. If the supplier’s employees perform work at the customer’s location, the customer must provide, on time and free of charge, the facilities required, such as a workspace with computer and network facilities. The supplier shall not be liable for damage or costs due to transmission errors, malfunctions or the non-availability of these facilities unless the customer proves that this damage or these costs are the result of deliberate intent or recklessness on the part of the supplier’s management.

11.4 The workspace and facilities must meet all legal requirements. The customer indemnifies the supplier against claims of third parties, including the supplier’s employees, who suffer injury in the context of performing the contract as a result of acts or omissions of the customer or unsafe situations in the customer’s organisation. The customer shall make the company and security rules current in its organisation known to employees deployed by the supplier prior to the start of the work.

11.5 If, in connection with the supplier’s services and products, the customer makes software, equipment or other resources available to the supplier, the customer guarantees that all licences or approvals that the supplier may require in relation to these resources shall be obtained.

11.6 The customer is responsible for the management, including checking the settings, and use of the products supplied and/or services provided by the supplier, and the way in which the results of the products and services are used. The customer is also responsible for appropriately instructing users and for the use made by users unless it is expressly agreed in writing that the supplier is to do so.

11.7 The customer shall itself install, organise, parameterise and tune the software and support software required on its own equipment and, if necessary, modify the equipment, other software and support software and operating environment used in this regard, and effect the interoperability that it desires.

15.1 Each party shall only be authorised to rescind the contract due to an attributable failure in the performance of the contract if the other party, in all cases after a written notice of default that is as detailed as possible and that grants a reasonable term to remedy the breach has been issued, is culpably failing to fulfil essential obligations under the contract. The customer’s payment obligations and all obligations of the customer or a third party engaged by the customer to cooperate and/or provide information apply in all cases as essential obligations under the contract.

15.2 If, at the time of rescission, the customer has already received goods or services in the performance of the contract, these goods or services and the associated payment obligations shall not be undone unless the customer proves that the supplier is in default with respect to the essential part of such goods or services. With due regard to the stipulation of the preceding sentence, amounts invoiced by the supplier prior to rescission in connection with what it already properly performed or delivered in the performance of the contract shall remain payable in full and shall become immediately due and payable at the time of termination.

15.3 A contract which, due to its nature and content, does not end in completion and which has been entered into for an indefinite period of time may be terminated by either of the parties in writing following consultation between the parties. Reasons for the termination must be stated. If a notice period has not been agreed between the parties, a reasonable period must be observed when notice of termination is given. The supplier is never obliged to pay any compensation due to termination.

15.4 The customer may not terminate a contract of engagement that has been entered into for a definite period of time.

15.5 Either of the parties may terminate the contract in writing, in whole or in part, without notice of default being required and with immediate effect, if the other party is granted a moratorium, whether or not provisional, a petition for bankruptcy is filed for the other party or the company of the other party is liquidated or dissolved other than for restructuring or a merger of companies. The supplier may also terminate the contract, in whole or in part, without notice of default being required and with immediate effect, if a direct or indirect change occurs in the decisive control of the customer’s company. The supplier is never obliged to repay any amount in money already received or pay any amount in compensation due to termination as referred to in this paragraph. If the customer goes irrevocably bankrupt, its right to use the software, websites and the like made available to it shall end, as shall its right to access and/or use the supplier’s services, without termination by the supplier being required.

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16.1 The supplier’s total liability due to an attributable failure in the performance of the contract or on any legal basis whatsoever, expressly including each and every failure to fulfil a warranty obligation agreed with the customer, shall be limited to compensation for direct loss up to a maximum of the price stipulated for the contract concerned (excluding VAT). If the contract is mainly a continuing performance contract with a term of more than one year, the price stipulated for the contract shall be set at the total amount of the payments (excluding VAT) stipulated for one year. The supplier’s total liability for direct loss, on any legal basis whatsoever, shall never amount to more than EUR 500.000 (five hundred thousand euros), however.

16.2 The supplier’s total liability for loss due to death or bodily injury or as a result of material damage to items shall never amount to more than EUR 1.250.000 (one million two hundred fifty thousand euros).

16.3 The supplier’s liability for indirect loss, consequential loss, loss of profits, lost savings, reduced goodwill, loss due to business interruption, loss as a result of claims of the customer’s customers, loss arising from the use of items, materials or software of third parties prescribed by the customer to the supplier and loss arising from the engagement of suppliers prescribed by the customer to the supplier is excluded. The supplier’s liability for corruption, destruction or loss of data or documents is likewise excluded.

16.4 The exclusions and limitations of the supplier’s liability described paragraphs 16.1 up to and including 16.3 are entirely without prejudice to the other exclusions and limitations of the supplier’s liability described in these general terms and conditions.

16.5 The exclusions and limitations referred to in paragraphs 16.1 up to and including 16.4 shall cease to apply if and insofar as the loss is the result of deliberate intent or recklessness on the part of the supplier’s management.

16.6 Unless performance by the supplier is permanently impossible, the supplier shall only be liable due to an attributable failure in the performance of a contract if the customer declares the supplier to be in default in writing without delay and grants the supplier a reasonable term to remedy the breach, and the supplier culpably fails to fulfil its obligations also after this term has passed. The notice of default must describe the breach as comprehensively and in as much detail as possible in order to give the supplier the opportunity to respond adequately.

16.7 For there to be any right to compensation, the customer must always report the loss to the supplier in writing as soon as possible after the loss has occurred. Each claim for compensation against the supplier shall be barred by the mere expiry of a period of 24 months following the inception of the claim unless the customer has instituted a legal action for damages prior to the expiry of this period.

16.8 The customer indemnifies the supplier against any and all claims of third parties due to product liability as a result of a defect in a product or system that the customer supplied to a third party and that consisted in part of equipment, software or other materials supplied by the supplier, unless and insofar the customer is able to prove that the loss was caused by the equipment, software or other materials referred to.

16.9 The provisions of this article and all other limitations and exclusions of liability referred to in these general terms and conditions shall also apply for the benefit of all natural persons and legal entities that the supplier engages in the performance of the contract.

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20.1 Contracts between the supplier and customer are governed by Dutch law. The United Nations Convention on Contracts for the International Sale of Goods (CISG) does not apply.

20.2 Disputes that arise by reason of the contract concluded between the parties and/or by reason of any further contracts deriving from it shall be resolved by mediation proceedings chaired by an impartial arbiter appointed unanimously by all parties.

20.3 Disputes that arise by reason of the contract concluded between the parties and/or by reason of any further contracts deriving from it that cannot be resolved by the method in Article 20.2 shall be resolved by arbitration in accordance with the Arbitration Regulations of the Foundation for the Settlement of Automation Disputes (Stichting Geschillenoplossing Automatisering - SGOA), which has its registered office in The Hague, the Netherlands, the foregoing without prejudice to the right of each party to request preliminary relief in summary arbitral proceedings and without prejudice to the right of each party to take precautionary measures. Arbitration proceedings shall take place in The Hague.

20.4 If a dispute that arises by reason of the contract concluded between the parties or by reason of any further contracts deriving from it is within the jurisdiction of the cantonal court (in Dutch: kantongerecht), each party, in derogation from the provisions of Article 20.2 and Article 20.3, shall be entitled to bring the case before the legally competent court as a cantonal court case. The parties shall only be entitled to take the afore-mentioned action if arbitration proceedings concerning the dispute have not yet been instituted in accordance with the provisions of Article 20.2 or Article 20.3. If, with due observance of the provisions of Article 20.4, one or more of the parties have brought the case before the legally competent court in order for it to be heard and settled, the cantonal court judge of that court shall be competent to hear and settle the case.

20.4 Regarding a dispute that arises by reason of the contract concluded between the parties or by reason of any further contracts deriving from it, each party shall in all cases be entitled to institute ICT mediation proceedings in accordance with the ICT Mediation Regulations of the Foundation for the Settlement of Automation Disputes. The other party must then actively participate in ICT mediation proceedings that have been instituted. This legally enforceable obligation in any case includes attending at least one joint meeting of mediators and the parties to give this extrajudicial form of dispute resolution a chance of success. Each party shall be free to terminate the ICT mediation proceedings at any time after a joint first meeting of mediators and the parties. The provisions of this paragraph do not prevent a party from requesting preliminary relief in summary arbitral proceedings or from taking precautionary measures if the party deems doing so necessary.

20.5 Leafcloud makes every effort to be compliant with applicable EU law and the GDPR.

20.6 In case of a dispute, the district court of Amsterdam will be the only competent court.

2. Provision of services

The provisions of this ‘Provision of services’ chapter shall apply in addition to the general provisions of these general terms and conditions if the supplier provides services of whatever nature, whether or not set out in more detail in one of the other chapters of these general terms and conditions.

3. Development Testing

The provisions of this ‘Development Testing’ chapter shall apply in addition to the general provisions of these general terms and conditions and the provisions of the ‘Provision of services’ chapter if the supplier provides testing services, under whatever name, in the field of software, hosting and/or related services.

26.1 The customer shall at all times act with due care and lawfully towards third parties, particularly by respecting the intellectual property rights and other rights of third parties and the privacy of third parties, by refraining from disseminating information in a manner that is contrary to the law, from granting unauthorized access to systems and from spreading malware or other harmful programs or data, and by refraining from committing criminal acts and violating any other legal obligation.

26.2 To prevent liability towards third parties or limit the consequences thereof, the supplier is always entitled to take measures with respect to an act or omission of or at the risk of the customer. Should the supplier so demand in writing, the customer shall delete data and/or information from the supplier’s systems without delay. If the customer fails to do so, the supplier shall be entitled at its own discretion to delete the data and/or information itself or make it impossible to access the data and/or information. In addition, in the event of a breach or an imminent breach of the provisions of paragraph 26.1, the supplier shall be entitled to deny the customer access to the supplier’s systems with immediate effect and without prior notice. The foregoing shall be without prejudice to any other measures or the exercise of other legal and contractual rights by the supplier against the customer. The supplier shall in this case also be entitled to terminate the contract with immediate effect without being liable towards the customer for doing so.

26.3 The supplier cannot be expected to form an opinion on the merits of the claims of third parties or the customer’s defense or be involved in any way whatsoever in a dispute between a third party and the customer. The customer shall deal with the third party concerned regarding the matter and inform the supplier in writing. The information provided in this context must be properly substantiated by supporting documents.

26.4 If the supplier performs work relating to the data of the customer its users or affiliated 3rd parties, its employees, or users pursuant to a request or a competently issued order of a government agency or in connection with a legal obligation, all costs associated with this work shall be charged to the customer.

26.5 The supplier may change the content or scope of the delivery model and/or development. During development testing customer shall provide cooperation as stated under Article 11. If the result of development testing results in a change in the customer’s current procedures, the supplier shall inform the customer about the matter in a timely fashion.

26.6 The supplier may continue to test and provide the development using new or modified versions of the software. The supplier is not obliged to maintain, modify, retain or add certain features or functionalities of the service or software specifically for the customer.

26.7 The supplier may temporarily put all or part of the development and/or delivery model out of operation for preventive, corrective, or adaptive maintenance or other forms of service or development. If relevant to testing, the supplier shall not allow the period during which the development is out of operation to last longer than necessary and shall ensure if possible that this period occurs outside office hours, and, according to circumstances, have this period commence following consultation with the customer.

26.8 The articles 26.1 up to and including 26.7 do not limit suppliers from imposing additional Terms & Conditions applicable to cloud and/or hosting-related services that the supplier provides with regard to testing. Particularly if these tests involve customers, the user(s), and/or other relevant 3rd parties and/or the testing of services on supplier-provided systems.

4. Support

5. Advice and consultancy

The provisions of this ‘Advice and consultancy’ chapter shall apply in addition to the general provisions of these general terms and conditions and the provisions of the ‘Provision of services’ chapter if the supplier provides services in the field of advice and consultancy.

6. Secondment services

The provisions of this ‘Secondment services’ chapter shall apply in addition to the general provisions of these general terms and conditions and the provisions of the ‘Provision of services’ chapter if the supplier makes one or more of its employees available to work under the management and supervision of the customer.