1.1 In these General Terms & Conditions the following terms and phrases shall have the following meanings:
2. SERVICE, SERVICE DELIVERY
2.1 Providing Quality Services. The 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 a 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.
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 Equipment 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 Customer’s or End-User’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 End-User, 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-User premises when and where required.
2.8 Returning Provider’s Equipment at end of Service Term. Upon the end of the Service Term, the Customer and/or End-User shall promptly return to Provider or its suppliers any Provider’s Equipment, which has been placed at the Customer’s and/or End Customer’s premises. Provider is entitled to invoice any and all costs arising out of or in connection with Customer’s and/or End-User’s failure to return the Provider’s Equipment to Provider or its suppliers.
2.9 Additional Charges. An additional charge may be added to the NRC if the 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 Customer respectively the End-User complies with all local regulatory provisions, especially but not limited to the use of Services.
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. The provider will notify the Customer in such cases and endeavor to provide an alternative if possible.
2.12 Use of the Service. Customer may use any Service for its own purposes, provided that the Customer;
a) complies with the terms of any applicable legislation, or any license applicable to the Customer in any country where Service is provided; and
b) or any End-User does not use the Service in any manner which is illegal; and
c) shall remain responsible for any access and use of the Service by End-Users, all Charges incurred and compliance with all terms and conditions by it and End-Users under the MSA; and
d) ensures that the Customer terminates access immediately for anyone who is no longer an End-User.
Breach by the Customer of this Clause shall constitute a material breach. Additionally, Expereo reserves the right to suspend Service where the Customer is in breach of this Clause.
The obligations and responsibilities of Expereo under the MSA are solely to the Customer and not to any third party, including any other User. The Customer will keep harmless and will indemnify Expereo, its officers, affiliates, employees, agents and subcontractors against any liabilities or costs arising from any and all claims by any third party, including End-Users, in connection with the use and/or misuse of the Service as set out in this.
3. TAXES, GOVERNMENTAL CHARGES
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. The 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.
3.5 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.
3.6 Indexation. The provider is entitled to change the prices of the Service(s) annually in accordance with the applicable Consumer Price Index (CPI). In the Netherlands, it is the CPI of the Statistics Netherlands (Centraal Bureau voor de Statistiek).
4. BILLING, PAYMENT
4.1 Fees. All service charges shall be exclusive of Applicable Taxes unless explicitly mentioned otherwise. The MRC 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 Open Exchange Rates (www.openexchangerates.org), on the 24th day of the applicable month (or the last banking day prior to the 24th, in case the 24th 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. DURATION, TERMINATION
5.1 Terminating Services.
5.1.1 Cancellation. Unless agreed otherwise in the Service Annex or SOF, the Service may be terminated after RFS, 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 total amount of MRC for the remainder of the full Initial Term or Renewal Term.
Cancellation before Ready for Service. If Customer chooses to cancel a Service before RFS date, it shall be liable for an early termination fee being the total sum of the NRC and all MRC for the full Initial Term.
5.1.2. Cancellation Order Form. Termination is only valid after Parties have signed a Cancellation Order Form specifying exactly (the parts of the Services to be terminated and the details of early termination fees. Such Cancellation Order Form shall be provided by Expereo to the Customer without undue delay upon receipt of the termination notice.
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 (i) 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, or (ii) by the nature of the material breach it is uncapable of remedy.
5.3 Dissolve a SOF and Discontinue Services. Provider 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. Provider 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 Equipment, including its data and/or cables, in the following occasions:
i. if and in so far as Provider is requested to do so by a governmental or regulatory authority, is required to do so to comply with statutory or regulatory requirements (or enforcement thereof) or is required to do so pursuant to an order of a court;
ii. Customer fails to comply with legal or regulatory requirements with respect to the use of Services;
iii. if the quality or availability of Service(s) provided by Provider 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;
iv. if the safety of persons or property is (or is threatened to be) adversely affected by the conduct of Customer or its Personnel;
v. if Customer or its Personnel breach the Acceptable Use Policy; and
vi. in case of an emergency.
Customer shall be obliged to pay all Fees payable throughout the period of suspension as referred to this Clause (except for Sub-Clause i).
5.5 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. Provider shall then be entitled to claim, and Customer shall pay upon demand, any reconnection charges incurred by Provider when lifting the suspension and resuming the provision of the Service(s).
6. WARRANTIES, LIMITATION OF LIABILITY, INDEMNIFICATION
6.1 Warranties. Provider 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. Provider 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. Provider does not monitor, and disclaims all liability and responsibility for the content of any communication transmitted by Customer or others via the Services, and disclaims all liability and responsibility for unauthorized use or misuse of the Services.
6.2 Limitations of Liability. 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. Parties each waive the right to bring a claim against the other Party arising out of or in any way relating to a Service Order or their Agreement more than 6 months after the date of the event giving rise to the claim.
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 each Parties’ aggregate liability to the other Party arising from any contractual breach or failure, 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.
6.4 Indemnification. Customer agrees to defend, indemnify and hold Provider, 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 and/or the End-User;
ii. the acts or omissions of Customer or the End-User, 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 Provider;
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 Provider or of the improper use of services, equipment or software provided by Provider;
v. non-compliance with any laws or regulations relating to anti-bribery and corruption, data privacy, confidentiality obligations, 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 Equipment with applicable telecommunication industry standards; or
viii. non-compliance with regulatory requirements with respect to the use of Services.
6.5 Reporting. Any alleged failure by Provider 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 Provider shall be reported in writing to Provider 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. FORCE MAJEURE
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. CONFIDENTIALITY, PUBLICATIONS
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. INTELLECTUAL PROPERTY RIGHTS
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. Data protection & Privacy
Parties will maintain appropriate administrative, physical, organizational and technical measures and safeguards for the protection, security, confidentiality and integrity of personal data. Furthermore, Parties shall be responsible to ensure that the processing of personal data is made in accordance with the EU General Data Protection Regulation (“GDPR”) and/or any other privacy laws as applicable to each Party. Under the GDPR, as a data controller, Parties are independently responsible for all obligations and responsibilities of the data controller and also in relation to data subjects whose information is being processed.
12.1 Parties shall represent and warrant that it is duly organized, validly existing, and in good standing under the laws of the place of its origin, and possesses all the authority and necessary licenses and/or permits as required under applicable laws to enter into and perform its obligations.
12.2 Parties shall represent and warrant that it conducts its business in a fair manner, with good governance and that it shall comply with applicable rules regarding ethical & responsible standards including human rights, environmental protection, sustainable development, bribery and corruption. Customer shall a) implement appropriate and effective policies in order to ensure compliance, and b) request its subcontractors and/or End-Users to adhere to compatible high standards.
13. GOVERNING LAW, JURISDICTION, DISPUTE RESOLUTION
13.1 Governing Law. All Agreements between Provider and the Customer shall be governed by the laws of the Netherlands.
13.2 Dispute Resolution. The Parties shall endeavor to amicably resolve any dispute concerning the implementation or interpretation of their Agreement. The Parties agree to aim to work out a settlement within thirty (30) days following the day of written notification of the dispute. No later than 2 weeks after the written notification of the dispute the Parties’ representatives shall meet in person. In case the Parties’ representatives cannot find a solution for the dispute within the 30 day period, the dispute shall be escalated to the next manager level and the next level managers shall aim to find a solution within two weeks. Any dispute that cannot be settled amicably between the Parties shall be finally settled by 3 (three) arbitrators 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.
14. GENERAL TERMS
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.
The general terms and conditions of Customer (if any) shall not apply to the Services and to the business relationship of Provider and Customer, unless they specifically agree otherwise in an agreement.
Expereo reserves the right to change these General Terms and Conditions at any time.