General Terms & Conditions

This document details the terms and conditions that apply when you purchase a product or service through FlashMQ.

Last updated
March 16th, 2024

Section A. General provisions

Article 1. Definitions

  1. FlashMQ:
    FlashMQ B.V., established in Haren Gn and registered with the Groningen Chamber of Commerce and Industry under file number 93199899.
  2. Customer:
    the natural or legal entity that has concluded an Agreement with FlashMQ, or the party to which the Agreement has been transferred. In this document, Customer may alternatively be referred to as “the customer”.
  3. Agreement:
    the Agreement between FlashMQ and Customer on the basis of which Customer can use the Hosting Service(s) or receive the Consulting Service(s).
  4. FlashMQ FOSS:
    the free, open-source FlashMQ software that the FlashMQ Services are based around.
  5. Service(s):
    a Service (or Services) that is to be supplied to Customer by FlashMQ on the basis of the Agreement, on a fee-paying basis or not. A FlashMQ Service can be
    1. a Hosting Service or
    2. a Consulting Service.
  6. Hosting Service(s):
    a Service (or Services) that supplies the Customer with one or more instances of the FlashMQ FOSS server software, managed by FlashMQ. Hosting Service(s), whether they are supplied on a fee-paying basis or not, are subject to the Agreement.
  7. Consulting Service(s):
    advice and/or consultancy Service (or Services), whether or not supplied on a fee-paying basis, supplied to Customer by FlashMQ. If a customer employs both Hosting and Consulting Services, each of these will fall under separate agreements between FlashMQ and Customer.
  8. FlashMQ Dashboard:
    the area of the FlashMQ website available exclusively to FlashMQ customers.
  9. FlashMQ Hosting Platform:
    the technical infrastructure underlying the FlashMQ Hosting Service(s), everything from the hardware layer up until the FlashMQ Dashboard.
  10. Netiquette:
    generally accepted standards and codes of practice for use of the Internet as laid down in RFC 1855.
  11. General Terms & Conditions:
    the General Terms & Conditions detailed in this document, throughout this document, may be referred to under various names:
    1. the general terms and conditions,
    2. the(se) present terms,
    3. the(se) general terms,
    4. the(se) present conditions,
    5. etc.

Article 2. Scope and applicability

  1. These general terms apply to all offers and agreements for which FlashMQ delivers Hosting Services or Consulting Services to Customer.
  2. Stipulations varying from these present terms can only be part of the Agreement if such departures from or supplementations of the general terms are accepted in writing by FlashMQ.
  3. Any stipulations of the general terms and conditions that are null and void or that are voided do not affect the applicability of the other stipulations, which will remain fully in effect. The void or voided stipulations will be replaced by new stipulations, which, to the farthest extent possible, will follow the meaning of the void or voided stipulations.
  4. None of the Customer's own purchase or other terms is deemed applicable in the context of these general terms.
  5. If, as part of its Consulting Services, FlashMQ makes product or services of third parties available to the customer, the terms of the third parties in question apply to these products or services.
  6. If provisions from different sections within these present terms are found to conflict, the provisions located in articles earlier in the document prevail over those from articles later in the document. Exception can only be made if both parties have explicitly agreed to them, in writing.
  7. The English version of these terms will prevail over any translation.

Article 3. Formation of the Agreement

  1. The Agreement comes into effect when a Customer:
    1. orders a Hosting Service via the FlashMQ website;
    2. accepts an Agreement for Consulting Services in writing.
  2. In the case of a hosting subscription as described in 3.1a, the Agreement comes into effect when the customer receives FlashMQ's hosting subscription confirmation. In the case of Consultancy Services such as described in 3.1b, the Agreement comes into effect when both the customer and FlashMQ have confirmed the Agreement in writing.

Article 4. Offers and pricing

  1. FlashMQ offers for its Hosting Services are made without any obligations to the (prospective) customer. No rights can be derived from any communication by FlashMQ regarding the performance of its Hosting Services for a specific price, regardless of the channel of communication. Only once an Agreement has been reached, conform the process described under Article 3, does the offer become binding.
  2. Costs estimates or budgets for Consulting Services communicated by FlashMQ to the customer serve informational purposes only. No rights or expectations can be derived from any such estimate or budget, unless explicitly part of the written Agreement or when an offer is specifically described by FlashMQ to the customer as a quotation and not an estimate.
  3. Never will any budget communicated by the customer be considered a (fixed) price agreement between parties, unless explicitly agreed upon in writing.
  4. The information provided by or on behalf of Customer to FlashMQ as the basis for a Consulting Service quotation must be correct and complete. Obvious typing errors are exempt from this obligation.
  5. Prices for FlashMQ Consulting Services, even in quotations, are subject to typing errors. FlashMQ accepts no liability for typing errors.
  6. All prices quoted by FlashMQ are in euros and Customer must pay in euros.
  7. All prices are exclusive of turnover tax (VAT) and other product or service-specific levies imposed on FlashMQ or the customer by the authorities.
  8. FlashMQ reserves the right to adjust its Hosting Service prices from time to time, with a notification period of at least one [1] calendar month. Current Hosting Service prices are provided on the FlashMQ website.
  9. FlashMQ may pass on to the customer:
    1. interim adjustments to statutory levies; and/or
    2. interim adjustments to the indexation of wages and cost prices.
    Indexation of the wages and cost prices always means an adjustment in line with the latest indexes published by Statistics Netherlands [Centraal Bureau voor de Statistiek]; namely:
    • the cost price index for commercial services,
    • the collective wage agreement index of wages for the commercial services industry; and
    • electricy prices.
      • When no such price index is available, non-indexed Statistics Netherlands data is indexed by FlashMQ, by taking the same reference year as used for comparable indexes, scaling the price for that year to 100 and using that same scale factor for subsequent years.
  10. In the event of a Hosting Service price increase, with the exception of an increase in accordance with the aforementioned paragraph 4.9, the customer has the right to terminate (opzeggen) the Agreement concerned in writing within seven [7] days of receiving notification from FlashMQ of the date on which the price or fee adjustment comes into effect. The Customer can do so through the FlashMQ Dashboard. The termination (opzegging), becomes effective from the date on which the new prices would take effect.

Article 5. Payment terms

  1. Unless otherwise agreed beforehand, FlashMQ will periodically invoice the Customer in advance for charges incurred using the Hosting Service starting at the time the Agreement was formed as stated in Article 3, paragraph 1.
  2. For Hosting Services, the initial/first invoicing period is paid for during agreement formation and the time of payment is the time that the subscription for the Hosting Service starts.
  3. Invoicing periods (e.g. months or years) are counted from this moment of agreement formation. For example: if a Hosting Service Agreement with monthly billing is formed on December 12, the first period will run from December 12 that year until (not including) January 12 the next month/year. The second period will then span January 12 until February 12, etc.
  4. For Hosting Services, as of ten [10] days prior to each new invoicing period, FlashMQ provides the Customer with an invoice. This invoice is made available via the FlashMQ Dashboard in digital form, accessible solely by the Customer, and will also be sent by email to the invoice email address provided to FlashMQ by the Customer. FlashMQ does not send paper invoices to the Customer by regular mail.
  5. FlashMQ's financial records will act as evidence when determining the amounts owing, unless the customer can provide contrary evidence.
  6. If the Customer consists of serveral natural and/or legal persons, each of these persons is jointly and severally liable to FlashMQ for the performance of the Agreement.
  7. It is the Customer's responsibility to make sure there are sufficient funds available in their nominated credit card, direct debit account or PayPal account at any time FlashMQ bills the Customer's account. If a direct debit is reversed, a chargeback request is received for a credit card payment or a dispute has been issued with PayPal, FlashMQ is entitled to suspend its services immediately without prior warning. Furthermore, FlashMQ is entitled to charge administration fees with a maximum of € 5.00 for each failed direct debit attempt, credit card debit or PayPal debit.
  8. The Customer can approve a recurring direct debit, automatic credit card payment or automatic PayPal payment to FlashMQ via the FlashMQ Dashboard. The recurring payment approval is valid until the Customer explictly revokes the recurring payment approval.
  9. The Customer can revoke a recurring payment approval at any time via the FlashMQ dashboard. When the Customer revokes a recurring payment approval, FlashMQ will not issue any new recurring payments, but will finish recurring payment requests which were already issued at the moment of the revocation.
  10. FlashMQ will send a pre-notification email to the Customer two [2] days prior to processing direct debit payments.
  11. FlashMQ will attempt the direct debit payment from the Customer one [1] day prior to the start of the new invoicing period.
  12. The Customer must report any objections concerning the amount of the sums invoiced and/or debited by FlashMQ at the earliest opportunity and no later than fifteen [15] days after the date of the invoice sent by FlashMQ via email. After the expiration of this fifteen [15] day term, the Customer shall be deemed to have agreed with the sum stated on the invoice.
  13. For Consulting Services, unless otherwise agreed upon in writing, the Customer must pay invoices sent by FlashMQ within 30 days of the issuing date stated on the invoice. The due date will also be stated on the invoice.
  14. After the expiry of the due payment term stated on the invoice (and agreed upon with FlashMQ as part of the Agreement, as described in paragraph 5.13), any Customer who fails to pay in a timely manner is in default by operation of law, without requiring notice of default.
  15. If the Customer fails to pay the complete sums due in a timely manner, the statutory interest for commercial agreements is payable by the Customer on any outstanding sum, or an interest of 1% if the statutory interest for commercial agreements is less than 1% of the invoice or installment amount for each month or part of a month with which the due date is breached.
  16. If the Customer, even after a reminder or notice of default, should fail to pay the sum due, FlashMQ can pass on the claim for collection and the Customer. The Customer is obliged to pay, within reason, all judicial and extrajudicial costs (which includes the costs incurred by hiring external experts) on top of the total sum due at that time. This is without prejudice to any of the Customer's statutory and contractual rights.
  17. The one-sided disabling or termination of the FlashMQ Hosting Service on the grounds of Article 9, paragraph 2 is without prejudice to the right of FlashMQ to claim outstanding invoices plus incurred costs, nor will FlashMQ be obliged to reimburse monies already paid by the Customer.
  18. All amounts owing to FlashMQ shall become immediately due and payable in the event that the Customer is declared bankrupt, applies for a moratorium, the assets of the Customer have been seized, the Customer is deceased or [in the case of legal persons], is in the process of being wound up or is being dissolved.

Article 6. Confidentiality regarding Consulting Services

  1. Both FlashMQ and the Customer ensure that secrecy is observed regarding information received from the other party when the confedential nature of that information is clear to the receiving party, or when it would be reasonable to expect the receiving party to have known about the confidentiality.
  2. Confidentiality does not apply if and insofar as the so-called “confidential information” must be provided to a third party in compliance with a judicial decision, a statutory requirement, a statutory order by a public authority or for the proper performance of the Agreement.
  3. The party that receives the confidential information may only use it for purposes such as for which it was provided.
  4. Information is deemed confidential if either party designated it as such. Obviously, in line with Article 6, paragraph 1, this designation must have been clear from the onset.
  5. When FlashMQ develops software customizations on top of the FlashMQ FOSS for the Customer, confidentiality of the software is to be assumed by both parties, to the extent that this is compatible with the licensing of FlashMQ FOSS, and to the extent that more specific stipulations have not been agreed upon by both parties as part of the Agreement.
  6. The obligation of confidentiality will continue to apply until at least two [2] years after the termination of the Agreement, or longer pursuant of statutory regulations.

Article 7. Transfer of risk

  1. When, in the context of an Agreement to provide Consulting Services, any digital goods or services are placed under control of the Customer (or an auxiliary person attached to the Customer), the associated risks pass to the Customer along with this control. This includes, but is not limited to, the risk of loss, theft, misappropriation or damage of these digital goods, information, documents, software and data files.

Article 8. Performance of Consulting Services

  1. FlashMQ performs its Consulting Serivces to the best of its ability, in accordance with the Agreement and supplemental arrangements and procedures agreed upon with the Customer in writing. FlashMQ its best-effort obligations are only applicable to promises made by FlashMQ as part of the Agreement and to the extent that the relevant result has been described in the Agreement in a manner that is sufficiently precise.
  2. Any damage suffered or costs incurred by the Customer as a result of the use or misuse of any type of security means does not fall under the liability of FlashMQ, unless when the misuse is the direct result of intent or deliberate recklessness on the part of FlashMQ's management.
  3. FlashMQ is always entitled to replace the person who performs the Agreement for the Customer with one or more similarly-qualified persons, regardless of whether the Customer has entered the Agreement under the impression of it being performed by a specific person.
  4. FlashMQ is under no obligation to follow the Customer's instructions when performing its Consulting Services, especially not if these instructions alter the content or scope of the services agreed on. If instructions to deviate from the previously agreed-upon are however followed, these additional activities will be charged at the Customer's applicable rates.

Article 9. Supply and usage of the Hosting Service

  1. The Customer is obligated to follow, within reason, instructions received from FlashMQ regarding the use of the FlashMQ Hosting Service. The Customer is responsible for reading emails sent by FlashMQ to their email address in a timely manner.
  2. The Customer is not permitted to use the FlashMQ Hosting Service to gain or seek access to third-party networks or computer systems, to use information obtained unlawfully and/or to damage third-party systems or software. Furthermore, the Customer is forbidden to use the facilities offered by FlashMQ for any activity leading to a breach of any law, public decency, public order, the guidelines of the Netherlands Advertising Code [Reclame Code Commissie], the Agreement and/or Netiquette. Examples of forbidden acts are:
    1. spam: sending unsolliced bulk messages via chat or email;
    2. hacking: the deliberate and unauthorized gaining of access to a computer system or part of it without the authorization of the owner or manager;
    3. the sale of non-existing products or products the Customer will deliberately fail to deliver;
    4. the sale of illegal goods and/or services the sale of which is unlawful in the country of origin and/or country of offer.
    The preceding list of examples is non-exhaustive.
  3. For the purpose of identifying Customers' fraudulent intentions, FlashMQ reserves the right to compare telephone numbers, IP addresses, email addresses and other Customer details with internal and external databases.
  4. If FlashMQ is of the opinion that it has identified cases such as those stated in paragraph 9.2, FlashMQ is entitled to disable the FlashMQ Hosting Service for the Customer temporarily or permanently and to charge the costs referred to in Article 5, paragraph 16 and 17.

Article 10. Duration and termination of the Hosting Service Agreement

  1. The duration of the Hosting Service Agreement begins on the date on which FlashMQ provides the Hosting Service to the Customer.
  2. A Hosting Service Agreement is entered into for an indefinite period.
  3. The Hosting Service Agreement can be cancelled by the Customer until the beginning of the next invoice period. As stipulated in Article 5, paragraph 3, invoicing periods do not necessarily concur with calendar months.
  4. Termination can occur via the FlashMQ Dashboard. The moment of termination is the moment at the end of the ongoing invoicing period within which FlashMQ receives notification of the termination. This is also the moment after which the FlashMQ Hosting Service will end.
  5. FlashMQ is entitled to terminate the Agreement with immediate effect and/or to render the FlashMQ Hosting Service unavailable to the Customer, temporarily or permanently, if the Customer fails to meet one or more of their obligations arising from the Agreement and/or the general conditions.
  6. In the event that FlashMQ disables the FlashMQ Hosting Service for a Customer, the Customer remains liable to pay fees relating to the Agreement, during the period of this block. Furthermore, FlashMQ reserves the right to full compensation.
  7. FlashMQ is entitled to terminate the Agreement with immediate effect without requiring notice of default and without application to the court, if the Customer:
    1. has given FlashMQ false and/or incorrect details;
    2. has failed to provide correct details or changes [in a timely manner];
    3. entered into the Agreement under false pretences;
    4. has applied for a moratorium or a moratorium has been granted;
    5. is in receivership or administration, or is losing the right to dispose over their assets, also in the event of debt restructuring;
    6. has filed for bankruptcy or has been declared bankrupt;
    7. is deceased or [in the case of legal persons] is being wound up.

Article 11. Hosting Services security and availability

  1. FlashMQ is entitled to relocate, shut down or remove equipment if compelled to do so by unforesoon circumstances.
  2. For its Hosting Service, FlashMQ is free to provide the underlying server capacity as FlashMQ sees fit, regardless of whether that underlying capacity is provided to FlashMQ by a third party, or whether FlashMQ manages the physical servers itself.
  3. FlashMQ is entitled to temporarily take its systems off-line wholly or in part for both routine maintenance tasks as well as unforeseen (emergency) maintenance tasks.
    1. FlashMQ is entitled to perform all the maintainance to its FlashMQ Hosting Platform that in their eyes is required to keep the FlashMQ Hosting Services performant and secure.
    2. The Customer has the option, in the FlashMQ dashboard, to set their preferred time windows for such upgrades (and the possible downtimes to their FlashMQ installations).
    3. If keeping the FlashMQ Hosting Platform secure necessitates urgent upgrades or other maintenance, FlashMQ may bypass the preferred upgrade window that the Customer has configured in the FlashMQ dashboard.
    4. FlashMQ shall endeavor to inform the Customer of planned outages (outside of the Customer's preferred maintenance windows) in a timely manner.
    5. FlashMQ is at no time liable for compensation regarding shutdowns that FlashMQ deems necessary for the continued well functioning of the FlashMQ Hosting Platform.
    6. Neither planned (nor unplanned emergency) maintenance activities constitute any infringement on availability guarantees given to the Customer.
  4. FlashMQ guarantees that the FlashMQ Hosting Service is available 99.95% of the time. This uptime guarantee is measured on a per-billing period basis. When calculating the uptime availability, not included in the periods of downtime are: service outages due to planned maintenance work; intentional or unintentional overload of the offered service by exceeding service capacity; activities carried out by third parties aimed at disruping uptime or stability, such as DDoS attacks; virus outbreaks and factors over which FlashMQ has no influence, such as natural disasters and airplane crashes. Downtime at the request of a court ruling, a regulatory body, or other public authority will also be excluded from the uptime calculation.
  5. Planned maintenance is defined as maintenance that is announced at least 120 hours in advance.
  6. FlashMQ shall endeavor to limit the noticeable impact of maintenance tasks by keeping maintenance activities to the absolutely minimum necessary to keep the FlashMQ Hosting Service running smoothly and securitly, by limiting the duration of maintenance activities, and carrying procedures out durring off-peak hours.
  7. In case that FlashMQ fails to meet the uptime guarantee, The Customer is entitled to compensation on condition that the Customer has met their payment obligations arising from the Agreement.
    1. The Customer is credited for the downtime as follows: actual downtime minus permissible downtime within that billing period = downtime that is eligible for credit.
    2. FlashMQ uses a fixed compensation percentage of 100 × the downtime that is eligible for credit divided by the base billing period in which FlashMQ did not meet the uptime guarantee. For a downtime of 2 hours in a month that has 30 days, this would be: 100 × (2 - (0.0005 × 30 × 24)) / (30 × 24) = 100 × (2 - 0.36) / 720 = 0.2278 = 22.78%
    3. The compensation percentage is always calculated over the base billing period, also if a subscription ends (due to, for example, a change to a different subscription) before the end of of the base billing period. Thus, if a Customer starts a monthly billed subscription on May 10, changes their subscription after 11 days, on May 21, and there was unplanned downtime between May 10 and May 21, the compensation will percentage will be calculated over the period from May 10 until June 10.
    4. The compensation amount is the compensation percentage multiplied by the costs for the base billing period, with a maximum of 3 times those periodical costs.

Article 12. Suspension of Hosting Services, reservation of rights and retention of title

  1. In the event of a failure to perform any obligation under the Hosting Service Agreement that is not attributable to FlashMQ, FlashMQ's obligations are suspended. Failures that are not attributable to FlashMQ are at the least: malfunctions resulting from the incorrect configuration of FlashMQ Hosting Services for which the responsibility lies with the Customer.
  2. FlashMQ reserves the right to temporarily suspend and/or limit the use of the agreed Hosting Service if:
    1. the Customer has failed to meet (one of) their obligations towards FlashMQ regarding said Hosting Service;
    2. the Customer's actions and/or omissions pose a threat to the function of FlashMQ or that of third parties.
    The obligation to pay the periodical subscription fees remains in force during the suspension, unless the reasons for suspension are not attributable to the Customer.
  3. Performance of the Hosting Service is resumed by FlashMQ after the Customer has met their obligations within a period set by FlashMQ, and after payment has been received for the fee that has been established for Service resumption.
  4. The expiry of the period stated in 12.3 is considered a sufficiently compelling reason for terminating the Agreement with immediate effect.

Article 13. Suspension of Consulting Services, reservation of rights and retention of title

  1. All goods delivered to the Customer as part of a Consulting Services Agreement remain the property of FlashMQ until all sums due by the Customer to FlashMQ under the Agreement have been paid in full. A Customer that acts as a reseller may sell and supply all goods that are subject to FlashMQ's retention of the title insofar as this is customary in the context of the Customer's normal mode of operation.
  2. In case that any goods are destined for export and the destination country its property laws are more favorable to FlashMQ, the retention of title for these goods will be governed by the laws of the destination country.
  3. Rights are granted or transferred to the Customer under the condition that the Customer has paid all sums due under the Consulting Services Agreement.
  4. FlashMQ has the right to retain all information, documents, software and/or data files received or created in the context of the Consulting Services Agreement, despite an existing obligation to hand these over or transfer them, as long as the Customer has not paid all sums due to FlashMQ.

Article 14. Intellectual property rights

  1. Unless a transfer of intellectual property has been agreed upon in writing as per paragraph 14.3, all intellectual property rights to all intellectual property developed or made available by FlashMQ to the Customer persuant to the Agreement remain exclusively vested in FlashMQ, its licensors or its suppliers. These intellectual properties include: software, websites, data files, databases, hardware, training, testing and examination materials; but also analyses, designs, documentation, reports, offers, and preparatory materials for these materials. The Customer is solely granted the rights of use that are part of the Agreement, seperately agreed upon in writing, and/or in the applicable mandatory legal provisions.
  2. Subject to the stipulations of paragraph 14.1, the right of use granted to the Customer is non-exclusive, non-transferable, non-pledgeable [niet-verpandbaar], and non-sublicensable.
  3. The transfer of intellectual property right from FlashMQ to the Customer may only be effected in writing.
  4. The Customer's rights of use terminate if and in so far as the Customer fails to comply with their obligations on the grounds of the Agreement wholly or in part.
  5. If parties agree in writing that an intellectual property right with respect to any type of intellectual properties (including, but not exclusive to, the itemization in paragraph 14.1) specifically developed for Customer is transferred to the Customer, this does not affect FlashMQ its rights or options to use and/or exploit, either for itself or for third parties and without any restriction, for other purposes: the parts, designs, algorithms, documentation, works, protocols, standards and the like on which the developments referred to are based. FlashMQ is equally entitled to use and/or exploit, either for itself or for third parties and without restrictions, the general principles, ideas and programming languages that have been used as a basis to create or develop any work for other purposes. The transfer of intellectual property right does not affect FlashMQ its right to continue the development, either for itself or for third parties, software (elements) that have been or are being developed for the Customer.
  6. The Customer may not remove or change any indication with respect to the intellectual property rights of FlashMQ. This includes, but is not limited to indications regarding the confidentiality, copyrights, brands, trade names of properties such as listed under paragraph 14.1.
  7. When a third-party makes any claims against the Customer based on the allegation that the third-party's intellectual property right is being infringed upon by intellectual property developed by FlashMQ, FlashMQ indemnifies the Customer against these claims, on the condition that the Customer informs FlashMQ about the existence and content of the claim as promptly as possible and in writing. Furthermore, the Customer should leave the settlement of the claim entirely to FlashMQ, and the Customer shall provide FlashMQ with the powers of attorney and the information and assistance required for FlashMQ to defend itself against the claim of intellectual property right infringement by the third part. FlashMQ's obligation to indemnity does not apply if the alleged infringement concerns:
    1. intellectual properties made available by the Customer to FlashMQ for use, modification, processing or maintenance; or
    2. modifications the Customer has implemented or has had implemented in the intellectual property without FlashMQ's written permission.
    If possible, FlashMQ will ensure that the Customer can continue to use, or use functional equivalents of, the intellectual property that was delivered, when it is irrevocably established in court that the intellectual property in question developed by FlashMQ itself infringes any intellectual property rights belonging to a third party, or if, in FlashMQ's opinion, there is a good chance that such an infringement will be established.
  8. The Customer guarantees that the Services requested from FlashMQ do not infringe on the intellectual property rights of third parties when the Customer enters an into an Agreement with FlashMQ for the production of intellectual property. The Customer also guarantees that they have the relevant licences for the Services requested from FlashMQ. The Customer indemnifies FlashMQ against any claim of a third party based on the allegation that the work that FlashMQ performs to uphold its end the Agreement infringes on a right of that third party.
  9. FlashMQ is never obliged to perform data conversion, unless this has been explicitly agreed on with Customer in communication.
  10. FlashMQ is entitled to use the Customer's figurative mark, logo or name in its external communication.

Article 15. FlashMQ's liability

  1. FlashMQ's total liability is limited to the compensation of damages as detailed in this article, regardless of whether these liabilities arise from an imputable failure in the performance of FlashMQ's side of the Agreement or any other legal basis, and explicitly including each and every failure to meet any guarantee or indemnification obligation that is part of the Agreement.
  2. In the event of an attributable breach of contract, FlashMQ is liable for damage sustained by the Customer only to the extent as set down in paragraph 3 of this article, and in so far as provided for by Section 196c of Book 6 of the Dutch Civil Code. FlashMQ has no further liability for the performance of information services.
  3. The total liability of FlashMQ, for whatever reason, shall be limited to compensating direct damage (as defined in paragraph 15.4)
    1. to a maximum of the fee paid by the Customer for Hosting Services (excluding VAT) during the last three months prior to the incident or series of connected incidents;
    2. to a maximum of the price stipulated for the Consulting Services Agreement in question (excluding VAT); or
    3. according to the compensation schema FlashMQ offers, at FlashMQ's discretion.
    In no event shall the total compensation for direct damage amount to more than the compensation paid by FlashMQ's liability insurer.
  4. Direct damanage is exclusively defined as:
    1. proof of reasonable costs that the Customer would need to incur in order to ensure that FlashMQ's obligations arising from the Agreement are met, except if the Agreement is dissolved or if the damage is attributable to the Customer;
    2. damage to software and hardware, which is defined as material damage as well as faulty or non-functioning equipment;
    3. material damage to other properties of the Customer and/or third parties.
  5. FlashMQ shall not be liable for damage resulting from missing information/data because the Customer did not receive the Hosting Service, nor for damage resulting from information/data transported via the network.
  6. FlashMQ shall at not time be liable for indirect damage, including consequential damage, loss of profits, lost savings, reduced goodwill, loss of data and loss due to business interruption and idle periods, loss as a result of claims of a Customer's client, loss arising from the use of goods, materials or software of third parties prescribed by FlashMQ to the Customer and loss arising from contracting suppliers FlashMQ has recommended to the Customer.
  7. The exclusions and limitations of FlashMQ's liability described by paragraphs 15.3, 15.4, 15.5, and 15.6 are without any prejudice whatsoever to the other exclusions and limitations of FlashMQ's liability described in these general terms.
  8. The exclusions and limitations referred to in paragraphs 15.3, 15.4, 15.5, 15.6, and 15.7 only apply if and insofar as the damage is not caused by intent or deliberate recklessness on the part of FlashMQ's management.
  9. Only if the Customer promptly serves FlashMQ with a written notice of default, granting FlashMQ a reasonable period of time to remedy the breach, and FlashMQ continues to imputably fail to meet its obligation to meet its obligation after that term, is FlashMQ exclusively liable for an imputable failure in the performance of the Agreement. To give FlashMQ the opportunity to respond adequately, the notice of default should describe FlashMQ's failure as comprehensively and in as much detail as possible.
  10. The right to compensation of damages exclusively arises if the Customer reports the damage to FlashMQ in writing as soon as possible after the damage has occured and never later than one year, except when the client has instituted a legal action for damages prior to the expiry of this one-year term.
  11. FlashMQ's total liability for any damage arising from bodily injury or death or arising from material damage to goods is limited to the amount of EUR 1,250,000 [one million two hundred fifty thousand euros].
  12. The Customer agrees to indemnify FlashMQ and FlashMQ staff for all third-party claims, specifically third-party product liability claims resulting from a fault in a product or system supplied by the Customer to a third party—a product or system that is partly comprised of hardware, software, websites, data files or other content supplied by FlashMQ—unless and in so far as the Customer proves that the damage was caused by that hardware, software, websites, data files or other content.
  13. The exclusions and limitations of liability referred to in this article [15] and throughout these general terms also apply in favour of all natural persons and legal persons that FlashMQ and FlashMQ's suppliers contracts for the performance of the Agreement.
  14. The liability limitations stated in paragraphs 3, 4, 5, and 6 of this article equally apply to indemnifications.

Article 16. Force majeure

  1. In the event of force majeure [overmacht], when FlashMQ is prevented by circumstances outside of its control to meet any of its obligations under the Agreement, FlashMQ shall not be responsible for any failure to provide the Services.
  2. Force majeure includes (but is not limited to):
    • outages or disruptions of the Internet or the telecommunications infrastructure;
    • power outages;
    • riot or civil commotion;
    • (cyber) vandalism;
    • (cyber) crime;
    • mobilization;
    • war;
    • shortages of or inability to obtain shipping;
    • strikes;
    • lockouts;
    • work stoppages;
    • equipment or delivery shortages;
    • fires;
    • floods;
    • import and export embargoes; and
    • facilities shortages.
  3. In the event that a force majeure situation last longer than sixty [60] days, either party has the right to terminate the Agreement, in writing,

Article 17. Amendments to the General terms and conditions

  1. FlashMQ reserves the right modify or supplement these terms and conditions.
  2. Amendments also apply to Agreements already in effect, with due regard for a term of thirty [30] days after the amendment has been announced on FlashMQ's website or by electronic message. Changes of a minor nature can be made at any time.
  3. Electronic notification of amendments to the terms terms and conditions will be sent by email to the contact email address provided to FlashMQ by the Customer.

Article 18. Applicable law and disputes

  1. These General Terms and Conditions are governed by the laws of The Netherlands.
  2. The Customer and FlashMQ can bring disputes between the Customer and FlashMQ regarding the formation of Agreements concerning a Service delivered or to be delivered by FlashMQ before the court of competent jurisdiction in the locality nearest to the place of residence of FlashMQ. FlashMQ can also decide to bring the dispute before the court of competent jurisdiction in the place of residence of the Customer.

Section B. Data protection

The provisions in Article 19, Article 20, and Article 22 apply if FlashMQ processes personal data, in the context of an Agreement, for the controller(s) as (sub)processor as defined in the General Data Protection Regulation (GDPR), article 4 (paragraph 1, 7, and 8, respectively). Together with possible stipulations in the specific Agreement, these provisions form a processing agreement as meant in article 28, paragraph 3 of the GDPR. The provisions in Article 21 apply to FlashMQ in the role as “data controller” as defined in the General Data Protection Regulation (GDPR), article 4 (paragraph 7), to effectively perform the technical and administrative obligations that are part of (or a logical extension of) an Agreement with the Customer to provide Services. Article 23 applies to FlashMQ in the role of data processor, as well as partially to its occassional role as data controller.

Article 19. Processing of personal data

  1. FlashMQ processes the personal data on behalf of Customer and in accordance with the written Agreement between FlashMQ and the Customer.
  2. The Customer (or the Customer's client), is the controller in the sense of the GDPR, and as such has the control over the processing of personal data. As the controller, the Customer has established the purpose and the means for the personal data processing.
  3. FlashMQ, as processor in the sense of the GDPR, has no control over the purpose and the means for the personal data processing. Thereforce, FlashMQ does not take any decisions on, amongst other things, the use of the personal data.
  4. FlashMQ implements the GDPR as laid down in this Article 19 and in the Agreement. It is the Customer's responsibility to assess whether FlashMQ offers adequate technical and organizational measures for data processing to meet the requirements posed by the Customer's obligations as a data controller under the GDPR.
  5. The Customer guarantees vis-à-vis FlashMQ that it will act in compliance with the GDPR, that its systems and infrastructure are at all times appropriately secured and that the content, the use and/or the processing of the subjects' personal data follow the law and are not in breach of any third party rights.
  6. The Customer indemnifies FlashMQ for all third-party claims that might be brought against FlashMQ on the grounds of the GDPR.
  7. Administrative fines imposed on the Customer by the GRDP supervisory authority, regardless of their legal ground, cannot be passed on to FlashMQ.

Article 20. Personal data security

  1. FlashMQ will implement the technical and organizational security measures described in the Agreement. In implementing these measures, FlashMQ will take into account: the state of the art; the implementation costs; the nature of the Services provided to the Customer; the data processing risks; and the varying risks, in terms of likelihood and severity, posed to the rights and freedoms of the data subjects that FlashMQ could expect.
  2. FlashMQ Services are not intended for processing special categories of personal data or data relating to convictions under criminal law or criminal offences, unless if this is explicitly stated in the Agreement.
  3. The Customer agrees that the security level offered in this article—Article 20—are appropriate to the risk involved in processing personal data used or provided by the Customer, while taking the factors from paragraph 20.1 into account.
  4. If FlashMQ is of the opionon that changes in security measures are called for to continue to provide an appropriate security level in a cost-effective manner that is appropriate to the context, FlashMQ may do so, as long as FlashMQ keeps a record of inportant adjustments and informs the Customer of these adjustments were these seem of direct relevance to the Customer.
  5. The Customer can request that FlashMQ implements further security measures, though FlashMQ is not obligued to honor such requests. If FlashMQ agrees to implement requested adjustments to its security measures, FlashMQ may charge the Customer for the implementation costs. FlashMQ is under no obligation to implement these adjusted security measures before the details have been agreed upon in writing.

Article 21. Controlling of personal details

  1. FlashMQ processes the Customer their personal details for the purpose of performing its side of the Agreement and for the proper management, monitoring and running of its administrative duties. This processing applies to all subscription and transaction data, is available only to FlashMQ and is not provided to third parties unless FlashMQ seeks the assistance of third parties in connection with the Service, has reason to investigate the Customer's creditworthiness or when FlashMQ is obligated to do so to comply with the law or a court ruling.
  2. FlashMQ can use the personal details referred to in paragraph 21.1 in the provision of its Services, to invoice the Customer for those services, and for payments relating to inter-connection or other access services, for transaction management, dispute settlement and for preventing and tracing fraud and irregularites.
  3. FlashMQ may use the Customer's personal details for debt collection (including using the services of a debt collection agency), and to analyse the Customer's creditworthiness (or ask a third party to do so).
  4. The Customer has a right to inspect the way in which their personal data is used by FlashMQ, as stipulated in the GDPR.

Article 22. Personal data confidentiality

  1. FlashMQ ensures that any person processing personal data under FlashMQ's responsibility observes the same obligations to confidentiality of that personal data.
  2. FlashMQ may provide personal data to third parties:
    1. in the context of properly performing the Agreement;
    2. if and insofars this datasharing is required in the context of a judical decision or a statutory requirement; or
    3. when following the authorized order of a public authority.

Article 23. Personal data breaches

  1. FlashMQ cannot guarantee that the security measures to protect personal data are effective in all possible circumstances. If FlashMQ discovers a personal data breach, FlashMQ informs the Customer of this without undue delay.
  2. When reporting personal data breaches, FlashMQ will contact the Customer's contact person in the usual way, unless other stipulations have been made as part of the Agreement.
  3. It is the responsibility of the data controller to assess whether the personal data breach reported by FlashMQ must be reported to the supervisory authority or to the data subject. FlashMQ is only obliged to report breaches to the supervisory authority and/or the data subject in the case that FlashMQ acts as the data controller. Otherwise, when FlashMQ acts as the data processor for the Customer, this responsibility remains with the Customer.
  4. FlashMQ will cooperate with the Customer when the Customer requires further information on the personal data breach to fulfill their obligations towards the supervisory authority and/or the data subject to report the breach.

Article 24. Personal data-related obligations following termination

  1. When, in the context of a Consulting Services Agreement termination, the processing agreement ends, FlashMQ will, within the period of time agreed upon in the Agreement, delete all personal data received from the Customer. FlashMQ will do so in such a way that these personal data will become unusable and rendered inaccessible. If agreed upon, those data may be returned to the Customer in a machine-readable format.
  2. FlashMQ may charge the Customer for any costs incurred in the context of paragraph 24.1. More specific arrangements on these costs can be part of the Agreement.
  3. If statutory provisions should prohibit FlashMQ to delete the personal data or return these, in part or in full, the provisions of paragraph 24.1 do not apply, and FlashMQ will continue to process the personal data insofar as it is bound to under its statutory obligations.
  4. The provisions of paragraph 24.1 do not apply in the case that FlashMQ is the data controller in terms of the GDRP.

Section C. Service Level Agreement (SLA) for FlashMQ Hosting Services

Currently, FlashMQ offers only one Service Level. Future expansions into multiple levels and adjustments to the current level are very likely.

Article 25. FlashMQ Hosting SLA 1 (standard)

  1. Under the standard SLA [1], the Customer is entitled to:
    1. assistance and support via email during the helpdesk opening hours, five [5] days per week, from Monday to Friday 09:00 to 18:00, Central European Time (CET). (CET = GMT/UTC + 1; CEST (Central European Summer Time) = GMT + 2).

Article 26. Software support for FlashMQ Hosting Services

  1. FlashMQ is not responsible for supporting the Customer with the proper set up, usage and integration of FlashMQ Hosting Services, besides ensuring that the Hosting Services function to the extent specified in Article 11. When Customers desire support, they can opt to establish a Consulting Service Agreement with FlashMQ.

Article 27. Procedure for reporting malfunctions

  1. The Customer must follow the below procedure when reporting malfunctions:
    1. Customer checks if FlashMQ has emailed a notification of planned maintenance.
    2. Customer checks if FlashMQ has already reported the malfunction in the FlashMQ Dashboard.
    3. Customer checks that the cause of malfunction falls within the Customer's own responsibility, in accordance with the SLA purchased.
    4. When none of the aforementioned (subparagraph 27.1a, 27.1b, or 27.1c) apply, the Customer has the right to contact FlashMQ through the appropriate channels:
      1. during office hours, per email on support@flashmq.com.
      2. Office hours are from Monday to Friday, from 09:00 to 18:00, Central European Time (CET). (CET = GMT/UTC + 1; CEST (Central European Summer Time) = GMT + 2).
    5. The Customer ensures that they are available:
      1. at the return address from from which their malfunction report was emailed.
    6. The first response time specified in the applicable SLA applies to the report.
    7. Within the applicable first response time, FlashMQ shall give an indication of a reasonable “ERT” (Estimated Repair Time).
    8. When deciding whether a specific issue falls within the agreed-upon level of support, FlashMQ's decision prevails.
    9. The Customer has no claim to service on the grounds of a concluded SLA if they are in default of payment and the payment term has expired.