These General Trading Rules apply to the services and products by OpenFortress, also known under the name OpenFortress Digital signatures.
OpenFortress is registered under number 08099987 in the commercial register of the Kamer van Koophandel en Fabrieken voor de Veluwe en Twente.
Preamble - About this Translation
This is a best-effort translation of the official General Trading Rules for OpenFortress, which are in Dutch. In case of differences, the Dutch version prevails. However, in situations where OpenFortress can be shown to misguide its non-Dutch customers, the English version of the misguiding statements may be applied to the advantage of such customers.
Article 1 - Goals
1.1 OpenFortress has as its goal the generation, publication and certification of digital signatures and anything that is directly or indirectly related, in the broadest sense possible.
Article 2 - General
2.1 These General Trading Rules apply to all offerings, assignments and agreements in which OpenFortress provides services or products to the Customer, even if these services or products are not explicitly mentioned in this agreement. Any trading rules claimed by the Customer or its trade organisation are not applicable, unless explicitly accepted in writing by OpenFortress.
2.2 Deviations from these General Trading Rules are only binding for OpenFortress if they have been explicitly confirmed in writing by OpenFortress. Such deviations apply solely to the agreement that they were accepted for.
2.3 All offers by OpenFortress are optional. The Customer can make a claim for an offer within 30 days after its creation.
2.4 An agreement comes into existence after written confirmation of an offer made by OpenFortress. An offer always includes these General Trading Rules. The party assigning work to OpenFortress is referred to as the Customer in these General Trading Rules.
2.5 In the case that any of these trading rules are annihilated or destroyed, the remaining rules, conditions and clauses of these trading rules shell still apply to their full extent, and OpenFortress and the Customer will discuss a new rule to replace the annihilated one(s), which is a discussion that aims to fulfil, as much as possible, the goals and intent of the annihilated rule(s), condition(s) or clause(s).
Article 3 - Price and payment
3.1 Unless agreed upon differently, all prices exclude value added taxes (VAT) and possible other charges by governments.
3.2 The prices to be calculated from the agreement are those that apply at the time of written acceptance by OpenFortress of an offer.
3.3 Any unforeseen rises in the costs incurred by OpenFortress for an assignment after it has been accepted in writing, and arising as a result of risen costs calculated by providers of OpenFortress, may be calculated into the final price for the agreement.
3.4 In situations where the Customer does not agree to a change in pricing as announced by OpenFortress and as implied by article 3.3, the Customer is entitled to terminate the agreement within ten (10) weekdays in writing, starting from the moment at which OpenFortress announces the rise in price.
3.5 In situations where the financial situation of the Customer is not known to be perfect, OpenFortress reserves the right to change the terms of payment.
3.6 All bills shall be paid by the Customer in agreement with the payment conditions included with the bill. If such conditions are not included, payment shall take place within thirty (30) days after the date of billing. Payments shall take place without crossing out against other payments, and without revocation, except when a Dutch judge decides otherwise.
Article 4 - Delivery terms
4.1 All (delivery) terms mentioned by OpenFortress correspond to applicable laws, as they were known to OpenFortress at the time of establishment of this agreement. Serious effort will be undertaken to meet those terms; however, failing to meet a single or a few terms do not render OpenFortress incapable. OpenFortress cannot be held responsible for (delivery) terms which cannot be met due to actions outside her control and that occur to OpenFortress after the initiation of the agreement. OpenFortress and the Customer will discuss how to resolve any overdue situation soon after it is recognised.
4.2 In situations where the security of a product of service conflicts with a term (of delivery), OpenFortress is allowed to extend (delivery) terms until security can be assured as originally intended in the agreement.
Article 5 - Privacy and Sensitive Information
5.1 Each party will take all reasonable precautions to protect the secrecy of information of a sensitive nature received from other parties, including personally identifying information, directions for solution, architecture, infrastructural issues, programs, data files, assignments, company information, prices and offers. This duty of secrecy applies to all parties, for the duration of an agreement and afterwards. All parties are held to make their employees follow this duty.
Article 6 - Quality and description
6.1 OpenFortress is held to deliver to the Customer those products and/or services that are described, in the quantity and quality as agreed upon in the offer.
6.2 OpenFortress cannot guarantee that delivered goods, information etc. are fit for any particular purpose that the Customer may have in mind, not even if this purpose has been communicated to OpenFortress.
Article 7 - Faults
7.1 If a product delivered by OpenFortress contains a fault, it must be sent back to OpenFortress immediately, with an accurate description of the problem. If this is not done, the Customer looses the right to claim repair of the fault or replacement of the product.
7.2 If any of the services rendered by OpenFortress turn out faulty, the Customer must inform OpenFortress without delay, in accurate writing with included motivation. If this is not done, the Customer looses the right to claim any form of refund and is fully responsible for any effects of the fault.
Article 8 - (Ownership) rights and risk of transfer
8.1 (Ownership) rights are transferred to the Customer or, where applicable, passed on under the terminating condition that the Customer fulfils the agreed-upon payment conditions, including any pending payments standing out at the Customer for the agreement at hand.
8.2 The risk of loss, damage and improper use of the transferables included in the agreement, and that includes the risks of theft, viral damage, break-ins or other alien influence and any indirect damage, are transferred to the Customer at the time of transfer of the (ownership) rights to the Customer or a third person acting on behalf of the Customer.
Article 9 - Liability
9.1 OpenFortress assumes only those liabilities that are implied by applicable law, as far as described in this article.
9.2 The total liability of OpenFortress caused by obvious neglect to fulfil the agreement is limited to payment of direct damages in fulfilling the agreement, up to a maximum of the amount agreed upon in the agreement (excluding VAT). If the agreement is mainly a long-standing agreement for more than six months, then OpenFortress is not liable for more than the agreed-upon amounts for six months (excluding VAT). The total liability for direct damages will never exceed 1000 Euro.
9.3 OpenFortress is never liable for indirect damages, including but not limited to damage inflicted upon third parties, loss of profit, lost savings, loss of (company) data and blocking (commercial) progress.
9.4 OpenFortress is not liable for any damages other than those in article 9.2, regardless of the grounds on which an appeal of liability would be based. However, the maximum liabilities mentioned in article 9.2 do not apply if damage is the result of gross neglect by OpenFortress.
9.5 Liabilities of OpenFortress caused by obvious neglect to fulfil the agreement arise only if the Customer has immediately, properly and accurately informed OpenFortress in writing that it is considered to neglect to fulfil the agreement, and if this writing mentions a reasonable period in which the neglect may be cleared, and if OpenFortress maintains its neglect after this reasonable period. The writing referred to in this article must describe in as much detail as possible what the nature of this neglect is, to enable OpenFortress to respond adequately.
9.6 To create the situation in which a right for payment of liable damages is possible, it is always necessary to report the existence of the liability-causing situation to OpenFortress in writing, without delay.
9.7 The Customer frees OpenFortress of all liabilities for damages by third parties caused by a problem in a product of service that is provided to the third party by the Customer and that includes provisions, materials, results, or anything else provided by OpenFortress, except when the Customer proves that the damage is directly caused by these provisions, materials or results.
Article 10 - Cryptographic Provisions
10.1 The term Cryptographic Provisions is used to cover products and services based on cryptographic technology. The term User of Cryptographic Provisions covers any party that directly acquires such provisions from OpenFortress, as well as any party that accept one or more root keys of OpenFortress and/or who uses Cryptographic Provisions created by OpenFortress.
10.2 OpenFortress provides Cryptographic Provisions, but is only willing to do so in full accordance with import-restrictions regarding these provisions in the country of the User. It is the responsibility of the User to conform to country-specific ruling regarding Cryptographic Provisions.
10.3 Payment for Cryptographic Provisions is made for the efforts to validate the requested provision, not for delivering it.
10.4 By using Cryptographic Provisions from OpenFortress, a User agrees with these General Trading Rules and with the signing policies that are included and/or delivered with the applicable Cryptographic Provisions. The fact that the User agrees to the signing policies means, among other things, that the User judges the methods of working, as detailed in those policies, as sufficiently careful and sufficiently secure.
10.5 Many Cryptographic Provisions rely on a secret code in possession of the User. OpenFortress is never responsible or liable for the effects of improper use or loss of this code. Where possible, OpenFortress does assume the responsibility of informing other parties of problems with the code of the User.
10.6 The informing function towards other parties, as mentioned in 10.5, is normally implemented by publication of standards-compliant revocation information by OpenFortress.
10.7 OpenFortress takes care of the publication of revocations in such a way that all Cryptographic Provisions that have been explicitly accepted for revocation are included, at least until their period of validity has ended. Revocation publications are one form of Cryptographic Provisions by OpenFortress.
10.8 No party other than the User and OpenFortress may assume that a Cryptographic Provision has at some point not been revoked, except when a revocation publication with a later timestamp has been published by OpenFortress.
10.9 OpenFortress reserves the right to revoke any Cryptographic Provision, but never without detailing why.
10.10 In situations where secret codes, as implied in article 10.5, are generated prior to the transfer of Cryptographic Provisions to the Customer, that Customer can choose to refrain from ever using those secret codes, or alternatively, the Customer may choose to rely on accurate and responsible generation of such secret codes.
Article 11 - (Intermediate) termination
11.1 A party in an agreement is allowed to terminate an agreement if the other party, after a proper en detailed written statement of neglect to fulfil the agreement, including a reasonable term for clearance of the neglect, can be shown to remain in neglect in fulfilling the agreement.
11.2 If an agreement is not of a kind or content that terminates after a particular amount of time or work, and if it has been established without an ending date, then this agreement can be terminated by each of the parties, after proper discussion, and not failing to mention the reasons to terminate in writing. If no explicit termination period has been agreed upon, then such termination should take a fair termination period into consideration.
11.3 OpenFortress can terminate the agreement without writing to the Customer about neglect to fulfil the agreement, with immediate effectiveness, and in whole or in part, if the Customer has requested sursťance of payment, or if bankruptcy has been requested for the Customer, or if his or her company is being or has been liquidated other than for the reconstruction or merging of companies. OpenFortress will never be liable for any damages in case of such terminations.
11.4 If the Customer has been provided with partial results to fulfil an agreement when the agreement is being terminated as described in article 11.1, then these results and the related payment obligation will not be subject to cancellation, unless OpenFortress the results themselves are the grounds for termination of the agreement. Bills sent out by OpenFortress at the time of termination and related to results that OpenFortress has already provided or otherwise taken care of, must still be paid by the Customer, keeping in mind the said in the previous sentence, and these bills must be paid immediately at the time of termination of the agreement.
Article 12 - Effects of termination
12.1 After termination of the agreement there are still duties for both parties which remain in full effect, at least with respect to privacy and proper handling of sensitive information, applicable law and jurisdiction, assigned judge, liability, billing and payment, as it applied in the period before termination.
12.2 Upon termination of the agreement, the Customer will return all tangible items that are not in his possession to OpenFortress without delay, or destroy them or have them destroyed if this is agreed upon with OpenFortress.
Article 13 - Force majeure
13.1 In the event that one of the parties has been in neglect of responsibilities following from this agreement for a continuous period of more than three (3) months, the other party is entitled to immediately terminate this agreement without having to resolve to lawful enforcement, informing the other party by registered post, but this will not lead to any form of retribution. Force majeure means delays or improper behaviour of OpenFortress caused by its suppliers, transportation mechanisms, or strikes, as well as disease of personnel.
Article 14 - Transfer of rights
14.1 OpenFortress is allowed to transfer all outstanding bills, rights, privileges and obligations arising from agreements with the Customer to third parties. The Customer agrees in advance that such third parties in case of such transfer, is entitled to enforce all the rights following from the agreement towards him. The Customer is not entitled to transfer any part or whole of this agreement to a third party without advance acceptance in writing by OpenFortress. OpenFortress is allowed to attach conditions to this advance acceptance in writing.
Article 15 - Products and/or services of suppliers
15.1 If and inhowfar OpenFortress supplies products and/or services of third parties to the Customer, the trading rules of that third party will apply if OpenFortress has indicated this in writing, as far as those products and/or services of those third parties apply instead of these general trading rules. OpenFortress access the application of such trading rules by such third parties. If the concerned trading rules are not supplied with the product and/or service, then these will be available for review by the Customer at OpenFortress, and OpenFortress will submit them to the Customer if so requested. If and inhowfar these trading rules of third parties are for any reason considered to be not applicable in the relationship between OpenFortress and the Customer, then these General Trading Rules of OpenFortress apply.
Article 16 - Jurisdiction
16.1 Any legal disputes between parties involved in an agreement, including disputes about these General Trading Rules of OpenFortress, will initially be debated trough a suitable mediation services of Stichting Geschillenoplossing Automatisering in Den Haag, the Netherlands.
A possibility for appeal is open with the qualified judge at the courthouse of Almelo, the Netherlands.
16.2 The General Trading Rules of OpenFortress, the agreements between OpenFortress and the Customer and any additions or changes to those, fall under the Dutch law.
Article 17 - Digital communication
17.1 In places where these trading rules speak of a written document, it is also possible to employ a digital message with a digital signature based on sufficiently strong cryptographic techniques public key technology, using a public key (with attached identity) which is recognised by the receiving party as belonging to the party sending the digital message. If the receiving party considers the signature insufficient proof that the message originated at the recipient, than the receiver must notify the sender without delay.
17.2 By signing digitally, the sender implicitly takes the responsibility over correct handling of the secret code used to create the signature as described under article 10, as well as over the correctness of all identities attached to the public key, at the risk of loosing all right to claim having sent the digital message as a substitute for a message in writing.