Terms & Conditions - Archived 16 August 2024

This version of these terms and conditions is archived: 16 August 2024. Current terms and conditions can be found here.

1. APPLICATION OF THE T&CS, DEFINITIONS AND INTERPRETATION

1.1 Application of the T&Cs. These General Terms & Conditions (“T&Cs”) shall apply to all offers, SOFs, orders, legal relationships and any other arrangement or agreement between the Parties which, at the SOF Date, is not governed by any master services or framework agreement entered into between the Parties.

1.2 Definitions. In the T&Cs the following terms and phrases shall have the following meanings:

1.3 Interpretation.

d. The headings in the T&Cs are for ease of reference only and shall not affect the construction or interpretation of the clauses to which they refer.

e. The words “include”, “includes” and “including” are to be construed without limitation.

2. SERVICE, SERVICE DELIVERY

2.1 Providing Quality Services. Subject to the T&Cs, Expereo will: (a) provide Services with reasonable care and skill, and (b) use reasonable endeavours to provide, but not guarantee, the provision of continuous fault free services.

2.2 RFS Date. Expereo shall use reasonable endeavours to ensure that the RFS Date falls on or prior to the Confirmed Delivery Date.

2.3 Changes after Order Placement. Customer understands and agrees that any change to the SOF information requested by Customer after order placement may result in delayed service delivery and/or additional costs. Customer shall pay any such additional costs to Expereo in accordance with Clause 4.1. Without prejudice to the foregoing, any request by Customer to change or delay the CDD shall be at Expereo’s sole and absolute discretion (and Expereo’s approval may be withheld, conditioned or delayed). If Expereo does not approve or respond to such request, the original CDD shall apply.

2.4 Cooperation and Assistance. To enable Expereo to perform its obligations under the Agreement, Customer shall: (a) provide all reasonable cooperation and assistance in good faith to Expereo, its Affiliates and/or Suppliers; (b) ensure that Customer’s Personnel of appropriate authority, skill, experience and seniority are made available in a reasonably timely manner; and (c) follow all reasonable instructions from Expereo after order placement regarding the installation and use of the Service. As at the SOF Date and during the Term, Customer warrants it has obtained, and shall maintain and keep up-to-date, all necessary consents, licenses, permissions and authorisations to enable Expereo to deliver the Services at the Customer sites in accordance with the Agreement. Clause 14.4 shall apply if the Customer fails to fulfil any of its obligations under this Clause 2.4.

2.5 Customer Delays and Lack of Cooperation. If Customer, its Personnel or third party supplier, for whatever reason, in the opinion of Expereo, delays, restricts or precludes the process of Expereo, its Personnel or Supplier making the Service RFS (including delay in, or lack of, access to the premises, incorrect or missing internal cabling or power facilities or wrong environmental conditions) (“Delay”), this shall be deemed a material breach of the Agreement. Accordingly, Expereo shall be entitled to either, at its option: (a) commence billing Customer for the relevant Service(s) on and from the CDD until the end of the Initial Term(s) and charge to Customer any reasonable costs incurred by Expereo arising out of or in connection with such Delay (and in each case Customer shall pay the same to Expereo in accordance with Clause 4.1); or (b) terminate the relevant Service(s) for material breach effective from the CDD and charge Customer applicable Early Termination Fees pursuant to Clause 5.10. For the avoidance of doubt and without prejudice to any other rights or remedy it may have, Expereo shall be allowed an extension of time to perform its obligations at least equivalent to the period of delay caused by the Customer.

2.6 Problem in the Customer Network. If Expereo is requested by Customer to address a problem with a Service, which is proved to Expereo’s reasonable satisfaction to be caused by a problem in the Customer’s network, equipment, Personnel or third party supplier, Expereo is entitled to charge to Customer all reasonable expenses incurred by Expereo in resolving the reported problem and Customer shall pay the same to Expereo in accordance with Clause 4.1.

2.7 Demarcation. Expereo shall deliver the Services up to the Demarcation Point. Expereo shall not be responsible for assessing Customer’s space, facilities, computer and transmission capacity needs and the uses or purposes to be obtained therefrom or for the interoperability of the Services with Customer Equipment and/or other services or User’s equipment and/or other services. Customer is solely responsible in respect of the aforementioned.

2.8 Equipment

2.8.1 If any hardware or equipment (whether Expereo Equipment, Customer Equipment or otherwise) is required to be installed by or on behalf of Expereo to enable Expereo or its Supplier to provide the Service, Customer will prior to installation at its own cost:

2.8.2 Delivery of Expereo Equipment to the relevant Customer locations will be undertaken at Customer’s risk. Title to Expereo Equipment will at all times remain with Expereo and Customer will not do anything to negate or limit such title (e.g., allow any liens or otherwise to be enacted upon Expereo Equipment).

2.8.3 Customer is solely responsible for Expereo Equipment and must not dispose of, use, move, add to, modify or in any way interfere with Expereo Equipment, nor allow anyone else (other than as expressly authorised by Expereo in writing) to do so. The Customer shall indemnify Expereo against all Losses in respect of or damage to Expereo Equipment (except to the extent the loss or damage is due to fair wear and tear or is directly caused by Expereo or a third party expressly authorised to act on Expereo’s behalf).

2.8.4 Customer warrants that the Customer Equipment is in good working order and suitable for the purposes for which it is used in relation to the Services and conforms to all applicable standards and requirements in the relevant territory(ies) in which Customer is receiving the Services. Without prejudice to its other rights under the Agreement, Expereo may remove any non-compliant equipment and replace it at the Customer’s expense.

2.9 Compatibility. Customer shall: (a) ensure its systems, equipment and processes satisfy any technical requirements or otherwise provided to Customer relating to a Service or Expereo Equipment (including notification to upgrade) (“Technical Requirements”); (b) ensure that its systems, equipment and processes are in good working order, and are configured and compatible for use with Expereo Equipment and/or the Services if they are required to be used in conjunction with any Expereo Equipment and/or the Services. Notwithstanding any other provision under the Agreement, Expereo shall not be responsible for any performance or non-performance issues with any Expereo Equipment and/or the Services, or liable to support Expereo Equipment and/or the Services, if Customer’s systems, equipment, or processes fail to satisfy the Technical Requirements, are misconfigured or are otherwise incompatible with Expereo Equipment and/or the Services. Expereo may suspend the provision of any Service for which Technical Requirements have not been complied with by Customer within the specified period (or, if not specified, a reasonable period determined by Expereo in the circumstances).

2.10 Safeguarding Network Integrity. In order to safeguard the integrity of the network or provisioning of the Service(s), Expereo may take measures and give instructions to the Customer that Expereo considers necessary in order to prevent or correct issues or deficiencies in the network or the Service and the Customer hereby agrees to immediately follow all such instructions or to allow Expereo, its Affiliates and/or its Suppliers access to any location to prevent or correct any such issues or deficiencies.

2.11 Local Environmental Conditions and Power Standards. Customer shall be responsible to prepare and maintain the local environmental conditions and power standards as required in preparation for the delivery of the Service and for the duration of the Service. As part of this responsibility the Customer shall provide power (sockets) to Expereo at the relevant site or premises when and where required. Clause 14.4 shall apply if the Customer fails to fulfil any of its obligations under this Clause 2.11.

2.12 Returning Expereo Equipment at End of Service Term. Upon the end of a Service Term for any reason, Customer shall (or shall procure that User shall) at its cost and risk promptly return any Expereo Equipment to the location notified to Customer by Expereo. Expereo is entitled to invoice to Customer, and Customer shall pay to Expereo within thirty (30) days of the invoice date, any costs (including equipment replacement costs, third party costs (such as courier and postage fees) and administrative fees) arising out of or in connection with Customer’s and/or User’s failure to return Expereo Equipment to Expereo within thirty (30) days after the end of any Service Term.

2.13 Construction Costs. Except to the extent expressly agreed in writing by Expereo, Expereo shall not be responsible for any build or construction work, including wireless or fibre infrastructure construction work. If so agreed by Expereo:

2.14 Regulatory Compliance. Customer shall ensure that it (and shall ensure that any User) complies with all applicable laws (including local regulatory requirements) regarding its obligations under the Agreement and the use and receipt of the Services.

2.15 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. Expereo will notify the Customer in such cases and will use reasonable endeavours to provide an alternative if possible.

2.16 Use of the Service. Customer may use a Service for its own internal business purposes (except in the case of Resellers, who may only use a Service to the extent required for the purpose of creating an end product to sell to its own customers), provided that Customer:

Customer shall notify Expereo immediately of any breach of security or unauthorised use of the Services. Any breach by Customer of this Clause 2.16 shall constitute a material breach of the Agreement. Without prejudice to the foregoing, Expereo may suspend any Service where the Customer is in breach of this Clause 2.16. Notwithstanding any other provision of the Agreement, Customer’s obligation to pay Service Charges shall continue during any period of suspension of Service under the Agreement.

2.17 Customer’s Obligation. The obligations and responsibilities of Expereo under the Agreement are solely to the Customer and not to any third party or any User. Customer will keep harmless and indemnify Expereo, its Personnel, Affiliates and Suppliers against any Losses arising out of or in connection with any third-party claim (including Users) in relation to Customer’s breach of the Agreement, including Clause 2.16.

2.18 End-of-Life

2.18.1 From time to time, Expereo or a Supplier may cease providing, marketing, selling or sustaining the whole or any part of a Service (including any equipment, hardware and/or software) and/or declare that such Service is end-of-life (“End-of-Life Service”). The date on which the End-of-Life Service ends is the “End-of-Life Date”. Expereo shall use reasonable endeavours to provide Customer as much notice of the End-of-Life Date as reasonably practicable in the circumstances. Provided that the Parties agree a new SOF for a replacement order, where such Service is an End-of-Life Service, Expereo shall, at Customer’s cost, use reasonable endeavours to replace the End-of-Life Service (or part thereof) with another Service (“Replacement Service”) and continue to provide the Replacement Service for at least the remainder of the relevant Initial Term (or Renewal Term, as applicable) for the End-of-Life Service. By way of example, the Replacement Service may include a forced migration, under which a new circuit is required to be installed at Customer’s site(s).

2.18.2 Any use of the End-of-Life Service by Customer after the End-of-Life Date shall be entirely at the Customer's risk and Customer shall indemnify and keep indemnified Expereo against all Losses (including consequential losses, loss of profit and loss of reputation, and all interest, penalties and legal and other professional costs and expenses) awarded against or incurred by Expereo in connection with, or paid or agreed to be paid by Expereo in settlement of, any claim arising out of Customer's continued use of the End-of-Life Service beyond the End-of-Life Date.

2.19 Service Changes. Customer understands and agrees that from time to time Expereo may need to make changes to its Services, provided that these changes do not materially adversely affect the Services. Such changes may include the following:

2.20 Service Monitoring. Without prejudice to the AUP, Customer consents for the Term for Expereo to monitor Customer’s or User’s use of the Service on behalf of Supplier(s) (and disclose and otherwise use the information obtained) to: (a) the extent permitted by applicable law; (b) comply with applicable law; (c) protect Suppliers’ networks from misuse; (d) protect the integrity of the public internet, Expereo and its Affiliates’ systems and/or Suppliers’ systems and networks; (e) the extent necessary to determine if Customer or User has breached any conditions or restrictions on use of the Service; (f) provide the Service; and/or (g) take other actions agreed or requested by Customer.

3. TAXES, GOVERNMENTAL CHARGES

3.1 Service Charges. Any fees and charges set out in quotes and in the Agreement (including any SOFs), are exclusive of any:

Customer is responsible for all Taxes associated with the Services and the Agreement, excluding any Taxes based on Expereo’s employees, property and/or net income (e.g. corporate income Taxes).

3.2 Payment of WHT. If payment of any amount of the Service Charges is subject to WHT, Customer will deduct the WHT and pay it to the relevant tax or governmental authority within the period required by applicable law. Where Customer deducts WHT, Customer will immediately (at Expereo’s option):

3.3 Non-Payment of WHT. If Customer fails to comply with Clause 3.2, Customer shall indemnify and hold harmless Expereo, its Affiliates and Suppliers against any Losses arising out of, or in connection with, Customer’s breach of Clause 3.2 (including costs of external advisors, attorneys and/or other resources to recover payment of WHT deducted at source).

If any tax or governmental authority asserts any claim that Customer should have made a deduction or withholding for or on account of any WHT, Customer shall indemnify and hold harmless Expereo and its Affiliates for the total amount of WHT due, together with any interest, fines and/or penalties resulting from the late payment or non-payment of the WHT and any other Losses incurred or suffered in defending the claim against the relevant authority.

3.4 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 Expereo with the relevant certificate(s) demonstrating its entitlement to the exemption.

3.5 Survival. Customer’s obligations under this Clause 3 will survive the expiration or termination of the Agreement.

3.6 Change in Service Charges due to Regulatory Changes. In addition to Clause 3.7, Expereo shall be entitled to vary Service Charges where changes are imposed or caused by applicable law. Any delay or failure by Expereo to perform any of its obligations under the Agreement which is caused or contributed to by a restriction of a legal or regulatory nature or change in applicable law shall not constitute a breach of the Agreement.

3.7 Indexation.  In each calendar year, Expereo shall be entitled to increase the Service Charges by:

4. BILLING, PAYMENT

4.1 Service Charges. All Service Charges shall be exclusive of Applicable Taxes, except to the extent expressly specified otherwise in the T&Cs. Any fees, charges, costs and expenses, including Service Charges, shall be payable by Customer within thirty (30) days of the invoice date (except to the extent an earlier period is expressly specified in the Agreement), by transferring the invoiced sums into the relevant bank account designated on the invoice, without any set-off or deduction. Invoices will be sent electronically to Customer’s dedicated billing email address, as stated in the SOF. All Service Charges and any amounts due under the Agreement shall be paid in EUROs (“Billing Currency”), except to the extent expressly stated otherwise in the Agreement.

4.2 Exchange Rates. Foreign exchange rates are applicable when Expereo sources products and Services in a local or other currency which is not the same as the Billing Currency. Currency value variations regarding the sourcing currency relative to the Billing Currency shall be reflected monthly at the invoice final amount. Unless expressly stated otherwise in the Agreement, the actual NRC and MRC invoiced to the Customer are derived from the local in-country currency, multiplied by the local currency exchange rates as provided by Open Exchange Rates (www.openexchangerates.org), on the 24th day of the applicable month (or the last business day prior to the 24th, if the 24th is not a business day).

4.3 Billing Principles. Subject to Clause 4.4 and except to the extent expressly specified otherwise in the Agreement, the following charges and billing principles shall apply for Services:

4.4 Billing start date. Expereo shall be entitled to invoice Customer for Services on and from the dates set out in Clause 4.3 above, except as otherwise expressly set out in the Agreement, including Clause 2.5.

4.5 Billing Structure and Changes. Expereo shall send a consolidated invoice to Customer for all Services provided under the Agreement at the frequency set out in Clause 4.3. Any changes to the agreed billing structure (including any change to the billing entity), specifications for the invoice, invoice template or the method of invoicing shall be requested via Expereo’s billing change request form signed by Customer and shall only become effective after thirty (30) days following written acceptance by Expereo (unless a shorter period is agreed in writing by Expereo). Where Expereo has not (yet) accepted the requested billing change, Customer shall bear all responsibility for late payment, including late payment interest pursuant to Clause 4.6. Expereo reserves the right to reject the requested billing change in its sole and absolute discretion.

4.6 Interest. Expereo reserves the right to charge to Customer, and Customer shall pay such amounts to Expereo in accordance with Clause 4.1:

4.7 Disputes. If Customer has a reasonable and bona fide dispute in respect of the whole or any part of an invoice then Customer shall promptly notify Expereo of the nature of such dispute in writing (in any event within fourteen (14) days of the invoice date) (“Notice Period”), with Customer providing all relevant details (including detailed reasons and any supporting evidence) of the disputed amount. If Customer does not notify Expereo within the Notice Period providing all such relevant details, Customer will be deemed to have approved the full amount of the invoice. Customer shall pay the undisputed part of the invoice in accordance with Clause 4.1. The Parties shall cooperate reasonably and in good faith to resolve the dispute regarding the invoice as amicably and promptly as possible. On resolution of any dispute, Customer shall make the appropriate payment (if any) within five (5) Business Days of such resolution and Clause 4.6 shall apply regarding late payments after this date. Expereo may charge the costs of investigating such disputes (including administrative costs) to Customer, and if so charged, Customer shall pay such costs to Expereo in accordance with Clause 4.1.

4.8 Failure of Payment. Any failure to pay Service Charges or any fees or charges by the due date under the Agreement by the Customer shall be deemed a material breach of the Agreement and without prejudice to Expereo’s other rights and remedies under the Agreement, at law or otherwise, on provision of fourteen (14) days prior written notice to the Customer, Expereo at its sole and absolute discretion shall be entitled to:

5. DURATION, TERMINATION

5.1 Duration of the Agreement. This Agreement shall take effect from the SOF Date and continue until all Service(s) under the SOF have expired or terminated (“Term”).

5.2 Duration of the Services. The initial term of each Service under a SOF shall commence from the relevant RFS Date and continue for the greater period of: (a) twelve (12) months; or (b) the period set out in the relevant SOF (“Initial Term”). Following the expiry of the Initial Term, each Service shall be extended for successive periods of twelve (12) months (or such other greater period set out in the SOF) or as required by applicable law (each a “Renewal Term”).

5.3 Terminating Services. Either Party may terminate a Service for convenience on or after the RFS Date by providing three (3) months’ prior written notice to the other Party. In the event Customer exercises such termination right, Expereo shall be entitled to invoice, and Customer shall pay to Expereo within thirty (30) days of the invoice date, the applicable Early Termination Fees in respect of the remaining period of the Initial Term or Renewal Term (as applicable).

5.4 Terminating Services before RFS Date. Either Party may terminate a Service before the RFS Date by written notice to the other Party. In the event Customer exercises such termination right, Expereo shall be entitled to invoice, and Customer shall pay to Expereo within thirty (30) days of the invoice date, the applicable Early Termination Fees in respect of the full period of the Initial Term.

5.5 Termination for Material Breach. Either Party shall be entitled to terminate the affected Service(s) or the Agreement if the other Party commits a material breach of the Agreement, and (if such breach is remediable) fails to remedy that breach within a period of thirty (30) days after being notified in writing to do so.

5.6 Termination for Insolvency. Either Party shall be entitled to terminate the Agreement (in whole) immediately on written notice if the other Party is the subject of a bankruptcy proceeding or order, or becomes insolvent, or makes any arrangement or compositions with or assignment for the benefit of its creditors, or if any of its assets are the subject of any form of seizure, or goes into liquidation or if a receiver or administrator is appointed over its assets. This Clause 5.6 excludes any corporate restructuring, amalgamation, debt activity or similar arrangement in the ordinary course of either Party’s business.

5.7 Expereo’s Termination Rights. In addition to any other termination rights under the Agreement, at law or otherwise, Expereo shall be entitled to terminate the affected Service(s) or the Agreement (in whole or in part) immediately on written notice if one of the following events occurs:

5.8 Suspending Services. Expereo shall be entitled to immediately and without prior notice suspend the provision of part or all of the Services and (where applicable) to disconnect, switch off, block access to and/or remove Expereo Equipment, including its data and/or cables, in the following circumstances:

If the cause of the suspension is attributable in any way to Customer, its Personnel or Users, Customer shall be obliged to pay all Service Charges due throughout the period of suspension. Expereo reserves the right to terminate the Services with immediate effect if one of the above circumstances in this Clause 5.8 persists for longer than thirty (30) days.

5.9 Lifting the Suspension. The suspension of Services under Clause 5.8 shall be lifted as soon as reasonably practicable after the grounds giving rise to the suspension have ceased to exist. To lift the suspension and resume the provision of the Service(s), Customer shall reimburse to Expereo forthwith on demand any costs incurred by Expereo relating to the suspension and/or resumption of Services (including reconnection charges and Supplier costs).

5.10 Early Termination Fees. Where a Party exercises its right to terminate under Clause 2.5, 5.3, 5.4, 5.5, 5.7 or 5.8 b), c), d) or e), in addition to any amounts due to Expereo prior to the effective date of termination, Expereo shall be entitled to invoice, and Customer shall pay to Expereo within thirty (30) days of the invoice date, the applicable Early Termination Fees in respect of the remaining period(s) of the Initial Term(s) and/or Renewal Term(s) (as applicable) for the relevant Service(s).

5.11 Suppliers. Customer acknowledges and agrees that the Services (in whole or in part) may be provided by Supplier(s). In addition to the rights to terminate the Service set out in this Clause 5, Expereo shall be entitled to terminate or suspend a Service or the Agreement (in each case, in whole or in part) if a Supplier terminates or withdraws (directly or indirectly) a Customer’s right to use a Service for any reason, including if a Supplier withdraws a service from the market for any reason (e.g. for commercial reasons and/or Force Majeure Event). In such event, Expereo will provide as much notice as is reasonably practicable, and Expereo will be excused from any obligation to provide the relevant affected Service and from any liability related to failure to provide the relevant Service.

6. WARRANTIES, LIMITATION OF LIABILITY, INDEMNIFICATION

6.1 Warranties. To the maximum extent permitted by applicable law, Expereo expressly excludes all representations, warranties, terms and conditions, whether express or implied (and including those implied by statute, custom, law or otherwise), except as expressly set out in the Agreement. Expereo specifically disclaims all warranties of any kind, whether express or implied, including the implied warranties of merchantability, fitness for a particular purpose, title 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 stated in the Agreement. Expereo disclaims all liability and responsibility for the content of any communication transmitted by Customer, its Personnel, any User or other third party via the Services, and disclaims all liability and responsibility for unauthorised use or misuse of the Services. Customer shall take appropriate measures to back up data and otherwise protect against loss of data under the Agreement.

6.2 Liability. Nothing in the Agreement shall exclude or limit a Party’s liability for:

6.3 Exclusion of Liability. Without prejudice to Clause 6.2, Expereo shall under no circumstances be held liable for:

The Parties acknowledge and agree that any Loss or other amounts paid or payable to any Supplier by Expereo or any Affiliate shall be recoverable as a direct loss under the Agreement. Excluding always claims in relation to death, personal injury or damage caused by intentional misconduct (opzet) or gross negligence (bewuste roekeloosheid) to which the statutory limitation period shall apply, Customer waives the right to bring a claim against Expereo arising out of or in any way relating to the Agreement (including any SOF) more than twenty-four (24) months after the date of the event giving rise to the claim.

6.4 Aggregate Liability. Subject to Clauses 6.2 and 6.3, and without prejudice to any limitation of liability contained elsewhere in the Agreement, each Party’s aggregate liability to the other Party in any Contract Year arising under or in connection with the Agreement, whether in contract, tort, breach of statutory duty or otherwise (including in each case, negligence), shall not exceed:

6.5 Indemnification. Customer shall defend, indemnify and hold Expereo, its Personnel and Affiliates harmless against any Losses they may incur or suffer arising out of or in connection with any third-party claim, demand, action or proceeding relating to the Agreement including in respect of:

6.6 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 proves that it could not reasonably have known and reported such failure or damage within such period.

7. INSURANCE

Customer will maintain, throughout the term of the Agreement, 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 Euro (€1,000,000) per occurrence, and two million Euro (€2,000,000) general aggregate; All insurance carried by Customer will be primary and non-contributory with any insurance carrier by Expereo.

8. FORCE MAJEURE

8.1 Force Majeure Events. The affected Party shall not be liable to the other Party and shall be relieved from its affected obligations (except the obligation to make payments) under this Agreement if such failure is caused by or arises as a result of a Force Majeure Event, provided that the affected Party has complied with Clause 8.2.

8.2 Notification. The Party seeking to rely on 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 the affected obligations under the Agreement.

8.3 Mitigation. The Party seeking to rely on the Force Majeure Event shall use reasonable endeavours to mitigate the effects of the Force Majeure Event.

9. CONFIDENTIALITY, PUBLICATIONS

9.1 Confidential Information. Each Party acknowledges and agrees that any information received from the other Party, which is: (a) marked “confidential”, “proprietary” or similar indication; (b) is expressly advised by the disclosing Party to be confidential; or (c) which the receiving Party would reasonably construe to be confidential in the circumstances (including Expereo charges, price books, quotes and names of Suppliers), (“Confidential Information”) shall remain confidential for the term of this Agreement and for a period of three (3) years thereafter, except to the extent an exception under Clause 9.3 applies. The Parties' obligations under this Clause 9 shall extend to the non-publicising of any dispute arising out of this Agreement.

9.2 Use of Confidential Information. The receiving Party shall: (a) only use it in relation to the Services; (b) restrict disclosure of Confidential Information solely to those Personnel of such Party and its Affiliates, professional advisors or consultants, with a “need to know” (“Permitted User”), and not disclose it to any other person or entity without the prior written consent of the disclosing Party; (c) to safeguard the Confidential Information to the same extent that it safeguards its own confidential materials or data; and (d) to ensure that each of its Permitted Users is bound to hold all Confidential Information in confidence to the standard required under this Agreement. The receiving Party shall ensure that the Permitted User is bound by confidentiality provisions that are substantially similar to those contained in this Clause 9.

9.3 Non-Applicability of Confidentiality. The obligations of confidentiality under this Clause 9 shall not apply to information which:

9.4 End of Term. In the event of termination or expiry of this Agreement, upon written request of the disclosing Party, the receiving Party shall return the disclosing Party's Confidential Information within a reasonable period, or at the disclosing Party's option, and where reasonably practical, destroy any remaining Confidential Information and certify that such destruction has taken place, provided however that each Party may retain one copy of all work product and relevant project documentation for archival and audit purposes, subject always to the obligations of confidentiality under this Clause 9.

9.5 Publications. Upon entering into the Agreement, the Parties are entitled to announce publicly the fact that they have entered into an agreement for the provision of Services for the purpose of their marketing activities. Expereo shall have the right to contact Customer and to use Customer for future references. Any other publicity, announcements and/or press releases about or in relation to the Agreement shall require the prior written consent of the other Party (which shall not be unreasonably withheld or delayed).

10. INTELLECTUAL PROPERTY RIGHTS

10.1 Original Owners’ Rights. IPR will continue being the original owner’s property whether the rights existed before or after the SOF Date. All IPR in any deliverables, documents, content, software and other materials created by or on behalf of Expereo under the Agreement shall vest in Expereo on creation.

10.2 Mutual Grant of Licence. Subject to the restrictions and terms set out in this Agreement, Expereo and Customer each respectively grant (or shall procure the grant) to the Customer, or to Expereo and its Affiliates and Suppliers, a licence to use any IPR owned by or licensed to it or its Affiliates, to the extent that such licence is required by the other Party to perform its obligations or receive the benefits under this Agreement, including for the Customer, the use of the Expereo Platform. Except to the extent expressly authorised otherwise in writing by Expereo in advance:

10.3 Restrictions. Customer shall not (and will ensure that any third party or User does not) copy, decompile, adapt, translate, disassemble, modify, correct errors or reverse engineer any software or material (including in respect of the Expereo Platform) provided by or on behalf of Expereo under this Agreement. Customer shall (and shall ensure its Personnel and Users shall) comply with this Agreement (including this Clause 10) and the Expereo Platform T&Cs in respect of the use of the Expereo Platform.

10.4 Third Party Terms. In addition to the terms of this Agreement, Customer shall comply with any third party terms (including end user licence terms) that apply to the use of the Service (including any software, equipment or materials provided as part of the Service) (“EULA”). Customer acknowledges and agrees that Services can only be provided by Expereo if Customer has entered into such EULA. By accepting the terms of the EULA, Customer agrees:

10.5 Infringement of Third Party Rights. Expereo shall use reasonable endeavours to ensure that the use by Customer of the software, equipment or other materials provided by Expereo in connection with the Service(s) shall not infringe any third party’s IPR.

10.6 Infringement. If it is established by a court of law with competent jurisdiction that Customer’s use of a Service in accordance with this Agreement infringes any third party’s IPR, Expereo may, at its option: (a) secure the right to continue using the relevant Services; (b) replace or modify the Services so it is no longer infringing; or (c) terminate the infringing Service(s) and reimburse Customer for any Service Charges paid for Service(s) by Customer but not yet received. This Clause 10.6 sets out the Customer’s sole and exclusive remedy in respect of any Loss arising out of or in connection with infringement of any third party’s IPR.

11. DATA PROTECTION & PRIVACY

11.1 General Obligation. Each Party shall comply with their respective obligations under the EU General Data Protection Regulation (“GDPR”) and/or any other data protection and privacy laws, as applicable to each Party. In this Agreement, the following terms each have the meaning given to it in the GDPR: “Controller”, “Data Subject”, “Personal Data”, “Personal Data Breach”, “Processing”, “Processor” and “Supervisory Authority”.

11.2 Cooperation. Customer shall cooperate with Expereo and provide such information and assistance as Expereo may require to enable it to: (i) deal with and respond to all investigations and requests for information relating to the Personal Data Processed under this Agreement from a Data Subject or from any Supervisory Authority; and (ii) handle any Personal Data breach relating to the Services without undue delay in accordance with the requirements of the GDPR and applicable privacy laws. Each Party shall notify the other Party if it reasonably suspects or becomes aware of any Personal Data Breach in respect of any Customer Personal Data under this Agreement.

11.3 Customer Sharing Data with Expereo. Where Customer shares Personal Data with Expereo, the Customer warrants and undertakes that it has complied with all necessary obligations imposed on it under the GDPR and applicable law, including ensuring that it has either: (i) obtained all necessary consents to transfer the Personal Data to Expereo; or (ii) secured another lawful basis, in accordance with the GDPR and applicable law, to share such Personal Data with Expereo for the Processing envisaged by this Agreement and has provided appropriate privacy notices to the relevant Data Subjects (as required by the GDPR and applicable law) to enable it to share the Personal Data with Expereo for the purposes envisaged by this Agreement.

12. COMPLIANCE

12.1 Warranties. Customer:

12.3 Export Control. The Customer acknowledges and agrees that products, software, and technical information (including, but not limited to, Service, technical assistance and training) provided under the Agreement may be subject to export laws and regulations of the European Union, the USA and other countries, and any use or transfer of the products, software, and technical information shall comply with applicable law. The Customer will only use, distribute, transfer, or transmit the products, software, or technical information (even if incorporated into other products) in compliance with all applicable export regulations. If requested by Expereo, the Customer shall sign written assurances and other export-related documents as may be required to comply with all applicable export regulations.

13. GOVERNING LAW, JURISDICTION, DISPUTE RESOLUTION

13.1 Governing Law. This Agreement, together with any issues, disputes or claims arising out of or in connection with this Agreement (whether contractual or non-contractual in nature such as claims in tort, from breach of statute or regulation or otherwise) shall be governed by, and construed in accordance with, the law of the Netherlands.

13.2 Cooperation Obligation. Each Party shall cooperate with the other Party in good faith in connection with any matters arising from this Agreement.

13.3 Dispute Resolution. The Parties shall endeavor to amicably resolve any dispute concerning the implementation or interpretation of their Agreement. The Parties agree to use reasonable endeavours to work out a settlement within thirty (30) days following the day of written notification of the dispute. No later than two (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 thirty (30) day period, the dispute shall be escalated to the next manager level, who shall use reasonable endeavours to find a solution within two (2) weeks. Any dispute that cannot be settled amicably between the Parties shall be finally settled by three (3) 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 Clause 13.3 does not exclude the possibility for either Party to seek preliminary, interlocutory or injunctive relief or the collection of any payment of sums due to it and outstanding under the Agreement from a court of law with competent jurisdiction.

13.4 Jurisdiction. Subject to Clause 13.3, all disputes or claims arising out of or relating to this Agreement shall be subject to the exclusive jurisdiction of the courts of the Netherlands to which the Parties irrevocably submit.

14. GENERAL TERMS

14.1 Expereo as Customer’s Agent. It may be necessary in certain jurisdictions, e.g. for regulatory or licensing, or tax reasons, for the 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 Customer, it will only do so as an agent of the Customer and will not assume any liability under such agreement.

14.2 Entire Agreement. Except for fraudulent misrepresentation, this Agreement represents the entire agreement between the Parties relating to its subject matter and supersedes any previous agreements or communications between the Parties regarding the same. The Parties acknowledge that, by entering into this Agreement, neither Party has relied on any statement, representation, promise, warranty, collateral contract or other assurance (made negligently or innocently) made, or agreed to, by any person, except those expressly provided for in this Agreement. Any terms of Customer diverging from the terms in this Agreement shall not be valid even if: (a) Expereo effects delivery or renders Services without reservation; or (b) Customer provides such terms to Expereo before or after entering into this Agreement, or refers to such terms in a SOF, order or any other document.

14.3 Order of Precedence. In the event of any conflict or inconsistency between the documents comprising the Agreement, the following descending order of precedence shall apply to the extent of any such conflict or inconsistency:

14.4 Customer Responsibilities. Customer shall promptly comply with Customer Responsibilities. Notwithstanding any other provision of the Agreement, if Customer fails to comply, or delays its compliance, with any Customer Responsibility, then to the extent caused by the Customer’s failure or delay, Expereo shall be relieved from its obligations under the Agreement without any liability to Customer. Customer shall reimburse Expereo forthwith on demand for any costs Expereo incurs as a result of such failure or delay.

14.5 Relationship of the Parties. This Agreement does not create nor imply the establishment of an exclusive relationship between Expereo and Customer. Except to the extent required under Clause 14.1:

14.6 Acceptable Use Policy (AUP). Customer agrees to conduct its operations in a manner that does not interrupt, impair or interfere with the operation of Expereo or its relevant Suppliers’ network and/or services. Services shall be provided in accordance with Expereo’s current AUP. Customer agrees to comply (and shall ensure Users’ compliance) with the AUP regarding the use and receipt of any Service.

14.7 T&Cs May Change. Expereo reserves the right to amend the current version of the T&Cs at any time without prior notice. The version of T&Cs in effect as at the SOF Date shall apply to the Agreement.

14.8 Survival. Termination or expiry of this Agreement and/or any Service, howsoever caused, shall not prejudice any rights and remedies of either Party which may have accrued under this Agreement (including any SOF) up to the date of termination or expiry, and shall not affect any provision of this Agreement (including any SOF) which is expressly or by implication intended to come into or remain in effect on or after termination or expiry.

14.9 No Waiver. No failure or delay by either Party to enforce any right hereunder shall constitute a waiver of such right. For a waiver of a right to be valid, it must be agreed in writing by authorised persons and will not give rise to a continuous waiver of that right unless it is expressly stated to do so.

14.10 Third Party Beneficiaries. This Agreement is made only for the benefit of the Parties to this Agreement and is not enforceable by any other person or entity.

14.11 Sales of Goods. The Parties agree that the UN Convention of the Sales of Goods shall not apply to this Agreement.

14.12 Assignment.

14.13 Severability.

14.14 Subcontractors. Expereo may subcontract any of its obligations under this Agreement but shall remain responsible to Customer for the provision of the Services.