1.1 In these Conditions the following terms and phrases shall have the following meanings:
Affiliate: With respect to any Party, any legal entity controlling, controlled by or under the same control as such Party; where control (including, with correlative meanings, the terms “controlled by” and controlling) means the possession of the power to direct the management and policies of such person, whether through ownership interests, by contract or otherwise;
BOSS: Back Office Support System. Expereo’s proprietary back office system supporting all key processes such as quoting, ordering, implementation, billing and fault management;
Customer: The Party contracting with Provider;
Customer’s CPE: Customer’s Customer Premises Equipment. Any equipment other than Provider’s CPE that is used / provided by the Customer;
NRC: Non-Recurring Charges (“NRC”) and ;
MRC: Monthly Recurring Charges (“MRC”) in order to be able to provide Fixed Currency charges;
Initial Term: Minimum contract period for the Service to be provided is twelve (12) months unless defined otherwise in the SOF;
Personnel: Persons employed, contracted or subcontracted by each of the Parties;
Portal: Online portal for Customers in order to access real time quotes, order progress data and performance statistics;
Provider: Party delivering the Services to Customer or to Expereo.
Renewal Term: Contract period following completion of the Initial Term for which a Service is renewed as defined in the SOF;
RFS: Ready For Service. Status of a Service Order when it is ready to be used by the Customer, and when the billing starts;
Service: The services provided by or on behalf of Provider to the Customer;
Service Term: Individually and collectively the Initial Term and Renewal Terms, if any;
SOF: Service Order Form. Standard form (electronic or paper) for the ordering of Services;
Supplier: A supplier of network services in order to deliver a Service.
2.1 Providing Quality Services. Provider will (a) provide Services with due care and the skill of a competent provider of international telecommunications services, (b) ensure that the goods supplied as part of the Services are reasonable fit for the purpose for which they are supplied and (c) endeavor to provide, but not guarantee, the provision of continuous fault free services.
2.2 Delivery Date of the Service. Provider shall use all reasonable endeavors to ensure that the RFS date falls on or prior to the Confirmed Delivery Date (if Expereo is Provider: as indicated in the Portal).
2.3 Late Delivery. If the RFS date is delayed due to reasons attributable to the Customer, Provider in addition to what is stipulated in Clause 2.9, reserves the right to start billing for the service on the Confirmed Delivery Date.
2.4 Problem in the Customer Network. If Provider is requested by Customer to address a problem with a Service, which proves to be caused by a problem in the Customer’s network, equipment connected directly or indirectly to the Provider’s CPE or Customer’s Personnel, Provider reserves the right to charge all reasonable expenses incurred by Provider in resolving the reported problem.
2.5 Demarcation. Unless otherwise expressly agreed in writing between Provider and Customer, Provider shall not be responsible for assessing Provider’s space, facilities, computer and transmission capacity needs and the uses to be obtained there from or for the interoperability of the Services with equipment of Customer’s or the customer of Customer, or Customer’s services. Customer is solely responsible for the choices made with respect thereto.
2.6 Safeguarding Network Integrity. In order to safeguard the integrity of the network or provisioning of the Service(s), Provider may take measures and give instructions to the Customer that Provider considers necessary in order to prevent or correct deficiencies in the network or the Service and the Customer hereby agrees to immediately follow all such instructions or to allow Provider, or its sub-contractors access to any location to prevent or correct deficiencies as aforesaid.
2.7 Local Environmental Conditions and Power Standards. It is the Customer’s responsibility to prepare and maintain the local environmental conditions and power standards in line with industry standards, both in preparation for the delivery of the service and for the duration of the service. As part of this responsibility the Customer needs to provide power (sockets) to Provider at the End Customer premises when and where required.
2.8 Returning Provider’s CPE at end of Service Term. Following the end of the Service Term, the Customer and/or End Customer will cooperate with Provider and/or its Suppliers to have any Provider’s CPE, which has been placed at the Customer’s and/or End Customer’s premises, collected and returned promptly.
2.9 Additional Charges. An additional charge may be added to the NRC if installation is delayed, postponed or fails due to a responsibility of the Customer, including but not limited to; no access to the premises, incorrect/missing internal cabling and/or power facilities and wrong environmental conditions.
2.10 Regulatory Compliance. The Customer is responsible for ensuring that the End-Customer complies with all local regulatory provisions.
2.11 Feasibility. Availability of a service can only be ensured after the ordering of that service and a feasibility check has been completed. A positive check available prior to ordering does not guarantee that the service with the ordered speed can be provisioned. Provider will notify the Customer in such cases and endeavor to provide an alternative if possible.
3.1 Applicable Taxes. Applicable Taxes means all taxes, levies, fees, imposts, duties, charges, surcharges, assessments or withholdings of any kind or nature levied or imposed upon Provider or Customer, arising from or relating to the provision by Provider of the Services to Customer (including, without limitation, sales, excise taxes, universal service fees, together with any penalties, fines or interest (resulting from Customer’s failure to pay Applicable Taxes hereunder after being invoiced for such) by any government, state, provincial or local government, public authority, including its agencies, commissions and tribunals, or their designated agents, having jurisdiction over this transaction. Provider will specify Applicable Taxes in each invoice.
3.2 Service Charges. Service Charges mentioned in Quotes and SOFs, do not include Applicable Taxes, as applicable, in connection with the furnishing of such Service.
3.3 Exemption Evidence. If Customer believes itself to be exempt from payment of or liability for any Applicable Taxes, and does not want to get invoiced for these Applicable Taxes, it must provide Provider with the relevant Certificate(s) demonstrating its eligibility for exemption.
3.4 Survival. Customer’s obligation to pay Applicable Taxes, if applicable, under this Clause 3 will survive the expiration or early termination of these terms and conditions.
3.4 Change in Fees due to Regulatory Changes. Provider shall be entitled to vary the Fees at any time if there is a regulatory change which results in an increase in the costs to Provider or any other Provider Affiliate providing the Services to the Customer.
4.1 Fees. All Service charges (“Fees”) shall be exclusive of Applicable Taxes, unless explicitly mentioned otherwise. The Fees are due monthly, in advance of the provision of Service. All Fees must be paid in EUROs unless stated otherwise.
4.2 Applied Exchange Rates. Unless agreed otherwise, the actual NRC and MRC invoiced to the Customer are derived from the local in-country currency, multiplied by the local currency exchange rates (“Local Exchange Rate”) as provided by ABN AMRO Bank (The Netherlands), on the 23rd day of the applicable month (or the last banking day prior to the 23rd, in case the 23rd is not a banking day).
4.3 Billing Principles. The following billing principles shall apply for Services unless otherwise expressly provided for in the Agreement:
i. Non-Recurring Charges shall be invoiced by Provider on the RFS date;
ii. Recurring charges shall be invoiced monthly in advance; and
iii. Usage-based charges and charges based on times and material rates shall be invoiced monthly in arrears.
4.4 Payment Term. All charges are payable within thirty (30) days of the invoice date by transferring the invoiced sums into the relevant bank account designated on the invoice, without any set-off or deduction. Expereo reserves the right to charge:
i. interest of three percent (3 %) per month on all invoiced amounts which remain unpaid after such thirty (30) calendar days period; and
ii. all reasonable collection costs including but not limited to reasonable legal expenses.
4.5 Credit Allowances. All Service credit allowances payable to Customer shall be credited on the invoices for the recurring charges of Customer in the month following the request for such Service credit by Customer. Any and all such credit allowances shall only be credited to Customer if Customer is not in default of the payment obligations set out in this Clause 4.
4.6 Disputes. Customer shall be entitled to partially withhold payment of an invoice which Customer disputes in good faith, provided however that Customer shall notify Provider in writing, within thirty (30) days of the invoice date, of the dispute and of the grounds thereof, and provided that Customer shall only be entitled to withhold payment up to the amount disputed in good faith by Customer.
5.1 Terminating Services. Unless agreed otherwise in the Service Annex or SOF, the Service may be terminated, subject to providing written notice of such termination to the other Party at least 90 (ninety) days prior to the termination date, such termination to be effective at the end of the Initial Term or at the end of a Renewal Term. If Customer terminates for convenience any part of the Services prior to the end of the then current term (Initial Term or Renewal Term), or Provider terminates this Agreement for Customer’s uncured material breach, then Customer shall be liable for all accrued but unpaid charges incurred or credits received through the date of termination associated with the Services and any early termination fees being the Fees for the remainder of the full Initial Term or Renewal Term.
5.2 Material Breach. A Party shall be entitled to terminate a Service if the other Party materially breaches the obligations of the Agreement or SOF, and fails to remedy such material breach within thirty (30) calendar days after receipt of written notice specifying the material breach and requiring it to be remedied.
5.3 Dissolve a SOF and Discontinue Services. Expereo shall be authorized, without serving notice of default and without recourse to the court, to dissolve the SOF with immediate effect and to discontinue the Service(s) if:
i. Customer has been declared bankrupt or has petitioned for bankruptcy;
ii. Customer and/or its Affiliates fail to pay any Outstanding Amount owed to Expereo and/or any of its Affiliates within fifteen (15) days after receipt of written notice requesting the same;
5.4 Suspending Services. Expereo shall be entitled forthwith and without prior notice to suspend the provision of part or all of the Services and (where applicable) to disconnect, switch off, block access to and/or remove Expereo’s CPE, including its data and / or cables, in the following occasions:
i. if and in so far as Expereo is requested to do so by a governmental or regulatory authority, is required to do so to comply with a change in statutory or regulatory requirements (or enforcement thereof) or is required to do so pursuant to an order of a court;
ii. if the quality or availability of Service(s) provided by Expereo to other customers is, or is threatened to be, adversely affected by the conduct of Customer or its Personnel or by its equipment or cables;
iii. if the safety of persons or property is (or is threatened to be) adversely affected by the conduct of Customer or its Personnel;
iv. if Customer or its Personnel breach the Acceptable Use Policy; and in case of an emergency.
v. Customer shall be obliged to pay all Fees payable throughout the period of suspension as referred to this Clause (except for Sub-Clause i).
5.4 Lifting the Suspension. The suspension referred to in Clause 5.4 shall be lifted within one (1) business day after the grounds giving rise to the suspension have ceased to exist. Expereo shall then be entitled to claim, and Customer shall pay upon demand, any reconnection charges incurred by Expereo when lifting the suspension and resuming the provision of the Service(s).
6. WARRANTIES, LIMITATION OF LIABILITY, INDEMNIFICATION
6.1 Warranties. EXPEREO EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. EXPEREO MAKES NO WARRANTY THAT THE SERVICES WILL MEET THE CUSTOMER’S REQUIREMENTS, NOR THAT THE SERVICE(S) WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE. NO ADVICE, INFORMATION, OR EXPECTATION, WHETHER ORAL OR WRITTEN, OBTAINED BY CUSTOMER THROUGH USE OF THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
6.2 Limitations of Liability. SUBJECT TO CLAUSE 7.3 AND WITH THE SOLE EXCEPTION OF INTENTIONAL MISCONDUCT, A PARTY SHALL UNDER NO CIRCUMSTANCES BE HELD LIABLE FOR ANY INDIRECT LOSS, DAMAGE OR EXPENSE, INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, REVENUES, GOODWILL, MANAGEMENT TIME OR ANTICIPATED SAVINGS OR ANY OTHER FORM OF INDIRECT OR CONSEQUENTIAL DAMAGES RESULTING FROM SUCH PARTY’S FAILURE TO PERFORM ITS CONTRACTUAL OBLIGATIONS AND/OR ARISING FROM ANY NEGLIGENT CONDUCT IN CONNECTION WITH SUCH PERFORMANCE AND/OR ARISING FROM OR IN CONNECTION WITH ANY UNAVAILABILITY, DELAY, INTERRUPTION, DISRUPTION OR DEGRADATION IN OR OF THE SERVICES, NOR FOR ANY LOSS, DESTRUCTION OR DEGRADATION OF INFORMATION. EXPEREO SHALL UNDER NO CIRCUMSTANCES BE HELD LIABLE FOR ANY ACTION AND/OR OMISSION OF ITS SUPPLIERS.
6.3 Intentional misconduct and gross negligence. With the sole exception of intentional misconduct and gross negligence and without prejudice to any limitation of liability contained elsewhere in these terms and conditions or in any other contractual documents:
i. Expereo’s annual aggregate liability to Customer for failure to perform its contractual obligations and/or arising from or in connection with any unavailability, delayed delivery, interruption, disruption or degradation of the Services, shall in all circumstances be limited to an amount equal to the sums paid by Customer to Expereo during such one (1) year period;
ii. Expereo’s aggregate liability to Customer arising from any such breach or failure and/or arising from any negligent conduct or otherwise, resulting in damages to physical property, is limited to a maximum of 250,000 (two hundred and fifty thousand) EUROs per event or series of related events and to a maximum of 500,000 (five hundred thousand) EUROs per calendar year;
iii. Customer’s aggregate liability to Expereo arising from any such breach or failure and/or arising from any negligent conduct or otherwise, resulting in damages to physical property, is limited to a maximum 250,000 (two hundred and fifty thousand) EUROs per event or series of related events and to a maximum of 500,000 (five hundred thousand) EUROs per calendar year.
6.4 Indemnification. Customer agrees to defend, indemnify and hold Expereo, and its Personnel harmless from any and all liabilities, costs and expenses, including reasonable legal expenses, resulting from or relating in any way to third-party claim, demand, action or proceeding that arises out of this Agreement including by no limited to in relation to:
i. the use of the Services or the placement or transmission of any materials on the Internet by Customer or Customer’s customer;
ii. the acts or omissions of Customer or Customer’s customer, in connection with the installation, maintenance, presence, use, modification or removal of equipment, or software;
iii. any claims by third parties howsoever arising out of services that will be provided by Customer to such third parties using the Services, or out of any false or misleading representations made by Customer with respect to the Services of Customer’s relationship with Expereo;
iv. claims for infringement of any third party proprietary right, including copyright, patent, trade secret and trademark rights, arising from the use of any services, equipment and software not provided by Expereo or of the improper use of services, equipment or software provided by Expereo;
v. non-compliance with any laws or regulations relating to data privacy, international communication an exportation of technical data arising out or in relation to utilization of the Services;
vi. any omission or non-compliance of Customer with any permit or exemption that may be required for the operation of the Services by the Customer; or
vii. any non-compliance of Customer’s CPE with applicable telecommunication industry standards.
6.5 Reporting. Any alleged failure by Expereo to perform its contractual obligations and any damage arising from or in connection with any unavailability, delay, interruption, disruption, degradation of the Services or negligent conduct of Expereo shall be reported in writing to Expereo without undue delay, but in any event within thirty (30) calendar days of the Customer becoming aware of it. Expereo shall not be liable for any such failure or damage that is not reported by Customer within this period, unless Customer shows that it could not reasonably have known and reported such failure or damage within such period.
Customer will maintain with a licensed insurance company rated A- or better by A.M. Best, a Commercial General Liability insurance in an amount not less than one million (1,000,000) EUROs per occurrence, and two million (2,000,000) EUROs general aggregate. All insurance carried by Customer will be primary and non-contributory with any insurance carried by Provider.
8.1 Force Majeure Events. A Party shall not be held liable for failure to perform any of its obligations (with the exception of the obligation to make payments) under these terms and conditions if such failure is caused by or arises as a result of an event of force majeure including, but not limited to, the following examples (provided these examples were not caused or made possible due to the negligence of such Party): fire, flood, strike, cable or fiber cuts, lightning, prolonged general power outages, acts of God, changes of the regulatory environment, acts of governmental or military authorities, civil unrest, terrorism and war.
8.2 Notification. The Party victim of a force majeure event shall as soon as reasonably possible, notify the other Party about the occurrence of such event and the estimated extent and duration of its inability to perform its obligations under the Agreement.
8.3 Minimizing Effects. In the event of the occurrence of a force majeure event, the Party victim of the force majeure event shall use all reasonable endeavors to minimize the effects of the force majeure event.
9.1 Confidentiality. Each of the Parties warrants that all of the information received by the other Party, which is marked as confidential or reasonably can be assumed to be confidential (including but not limited to Expereo charges, price books, quotes and names of Expereo suppliers), in nature shall remain secret for the entire duration of any Agreement and for a period of three (3) years thereafter, unless a legal obligation mandates disclosure of that information. The Party receiving the confidential information shall a) only use it for the purpose for which it has been provided; b) restrict disclosure of the confidential information solely to those employees of such Party and its Affiliates, officers, directors, representatives, agents, employees, contractors or consultants, with a ‘need to know”, and not disclose it to any other person or entity without the prior written consent of the disclosing party; c) advise all receiving party officers, directors, representatives, agents, employees, contractors or consultants with access to the confidential information of their obligations to protect the confidential information provided hereunder and the receiving party shall be liable for breaches of the Agreement by such persons. Information shall in any event be considered confidential if it is designated by either of the Parties as such.
9.2 Non Applicability of Confidentiality. The obligation of secrecy referred to in Clause 9.1 shall not apply to information which:
i. is already in the possession of, or which is previously known to, the receiving Party at the time of its receipt from the disclosing Party, other than by breach of the present obligation of secrecy;
ii. is in or comes into the public domain other than by breach of the present obligation of secrecy;
iii. is obtained from a third party who is permitted to disclose such information, or has been generated by the receiving Party without any use of the confidential information received from the disclosing Party;
iv. is required by law, regulation or judicial order or the rules of a relevant stock exchange to be disclosed; or
v. is provided to the respective (legal) advisors, auditors or financiers of the Parties provided they are under the obligation to treat such information as confidential.
9.3 Publications. Provider may publicize the existence of the relationship between the Parties for the purpose of its marketing activities. Subject to the foregoing, neither Party shall make any press announcements concerning this Agreement or publicize this Agreement in any way without the prior written consent of the other Party.
10.1 Non-exclusive, Non-transferable License. Subject to the restrictions and terms set out in these terms and conditions, Provider grants to Customer a non-exclusive, non-transferable license to use the software, equipment or other materials provided under or in connection with the Agreement on an ‘as is’ basis for internal purposes only and in so far as is necessary to utilize the Service(s) provided there under.
10.2 Property Rights. All intellectual or industrial property rights to any software, equipment or other materials, including documentation, provided to Customer under or in connection with the Agreement, shall solely be held by Provider or its suppliers and/or licensors.
10.3 Infringement of Other Parties Rights. Provider shall use all reasonable endeavors to ensure that the use by Customer of the software, equipment or other materials provided by Provider in connection with the Service(s) shall not infringe any third party’s property rights or intellectual property rights.
10.4 Infringement. If it is established by a court of law that Customer infringes any intellectual property right belonging to a third party as a consequence of an act or an omission of Provider, Provider shall take such measures as to ensure that the infringement is remedied and that Customer’s use of Service(s) is not affected or, if this, at the sole discretion of Provider, is not reasonably possible, terminate the Service(s) and reimburse Customer for any charges paid for Service(s) not received.
11.1 Governing Law. All Agreements between Provider and the Customer shall be governed by the laws of the Netherlands.
11.2 Dispute Resolution. Any dispute concerning the implementation or interpretation of an Agreement that cannot be settled amicably between the Parties shall be finally settled by 1 (one) arbitrator appointed in accordance with the Arbitration Rules of the International Chamber of Commerce. The place of arbitration shall be in Amsterdam, the Netherlands, and the arbitration shall be conducted in the English language. This does not exclude the possibility for either Party to seek preliminary relief or the collection of any payment due to it and outstanding under any agreement from a competent court of law.
Expereo End Customer’s agent. It may be necessary in certain jurisdictions, e.g. for regulatory or licensing, or tax reasons, for the End Customer to obtain the Service, or part of the Service, directly from a third party service provider pursuant to a separate agreement. Where Expereo manages such agreement on behalf of the End Customer, it will only do so as an agent of the End Customer and will not assume any liability under such agreement.
Expereo reserves the right to change these General Terms and Conditions at any time.