MASTER SERVICE AGREEMENT (MSA)

1. MASTER SERVICE AGREEMENT AND SERVICE ORDER

1. These MSA GENERAL TERMS AND CONDITIONS are deemed incorporated, even if reference not expressly made, into any order form that has as scope, inter alia, one or more services generally offered by Higher-Faster (the “Services”) requested by the party identified as “Customer” in the Order Form (“Customer”) and accepted in writing by Higher-Faster (“Company”).  By signing a Service Order Form, Customer acknowledges that it has read and agrees to be legally bound by these MSA GENERAL TERMS AND CONDITIONS (also called the “Terms”). “Services Order Form” means a service order request submitted on the format provided by the Company and signed by Customer that includes the type and details of the specific Services wanted by Customer and agreed in writing by Company (also called Order Form, Service Order or Order). All Order Forms are subject to acceptance by Company. Company reserves the right to refuse any Order, with or without cause, in its sole discretion. These MSA GENERAL TERMS AND CONDITIONS and the Service Order Forms and the documents referenced by them if the case may be, are referred to collectively herein as the “Agreement” or MSA.  

2. All Services shall be specified in, and shall be in accordance with these Terms of, mutually agreed Service Orders, signed by authorized representatives of the COMPANY and the CUSTOMER, each of which shall be governed by the terms and conditions of the Master Service Agreement.  

3. The Master Service Agreement shall provide for the binding framework conditions, Service Orders shall – unless otherwise provided for in the Master Service Agreement - provide for the details concerning scope of the Services, time-frames and deadlines, remuneration, project management, other specific terms and conditions. These Terms shall even apply if no reference is made to it in a specific Service Order.  

4. In case of contradictions between the Service Order and the Master Service Agreement, the Service Order signed by the Parties shall prevail.

5. In executing a Service Order, the Parties shall use the model form in Appendix 1.  

2. SERVICES

1. The subject of the services are the ones described and agreed in the individual Service Order. The services under the Master Service Agreement (Services), however, may cover (for Customer or Customer’s Clients):  

• review specifications and requirements of a software, system or platform;  

• review infrastructure as it concerns its suitability for the Services;

• preparation of analyses, concepts and specifications;

• procurement of standard software including granting of the respective use rights;  

• supply, installation, implementation and/or customizing of software in accordance with the agreed specification;

• development of software and of program modifications and enhancements in accordance with the agreed specification; software development services may include i) analysis, design and software development for information technology systems and ii) development / operations software development and maintenance;

• development and implementation of interfaces in accordance with the agreed specification;

• organization and conducting of training;

• integration of and putting into operation software;  

• maintenance and support;

• preparation and provision of related documentation;

• assistance related to the migration and integration of data;  

• product management services such as i) product UX design, user experience design, user interface design and ii) product management;

• project management services such as: i) integration management, project and program management and ii) delivery management;

• provision of any other services agreed between the Parties.

2. Nothing contained in this Master Service Agreement shall be understood or interpreted so that the CUSTOMER or COMPANY is obliged to enter into any Service Order or an addendum to one.  

3. Subject to the terms of this Agreement, Company will use commercially reasonable efforts to provide Customer the Services agreed in the Order Form in accordance with the MSA and related terms and conditions as made available by the Company on its platform and updated from time to time.  

4. Subject to the terms hereof, Company will provide Customer with reasonable technical support services and, if one made available, in accordance with the terms set forth in Company’s SLA.  

3. RESTRICTIONS AND RESPONSIBILITIES

1. The Customer will not, directly or indirectly either before, during or any time after the Term: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data of the Company related to the Services (hereinafter separately and/or together called the “Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or expressly authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels.  

2. Further, Customer may not remove or export from the locations and/or systems used by Company or other physical or internet web hosting location chosen by the Company to operate its services or allow the export or re-export of the Services or anything related thereto, or any direct product thereof in violation of any restrictions or applicable laws or regulations.  

3. Any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation will be prohibited except to the extent expressly permitted by the terms of this Agreement.

4. Customer represents, covenants, and warrants that Customer will use the Services only in compliance with Company’s standard policies then in effect (the “Policies”) as published and updated from time to time on Higher-Faster platform and all applicable laws and regulations. Customer hereby agrees to indemnify and hold harmless Company against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services. Although Company has no obligation to monitor Customer’s use of the Services, Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.

5. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”).  Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.

4. CONFIDENTIALITY; PROPRIETARY RIGHTS; PERSONAL DATA

1. For the purposes of this Agreement, the following terms shall have the following meanings:

“Confidential Information”: means confidential or proprietary information of any Party or its affiliates (however recorded or preserved) that should reasonably be known to be confidential or proprietary to that Party or its affiliates, including, but not limited to, information relating to Party’s or its affiliates’ such as inventions, works of authorship, trade secrets, patents; business, product, marketing, sales and technical strategies, programmes and results, costs and prices; suppliers, customers, market data;

“Representatives”: means employees, officers, advisors, consultants, agents, contractors, sub-contractors or other representatives of a Party and/or its affiliates and “Representative” shall mean any one of them.

2. Subject to Clauses 4.3 and 4.4, at all times during this Agreement and until 3 years after the termination of this Agreement, any Party shall keep all Confidential Information confidential and shall:

• not use or exploit the Confidential Information in any way except for the purpose of performing the Agreement;

• not disclose or make available the Confidential Information in whole or in part to any third party, except as expressly permitted by this Agreement;

• protect the confidentiality of Confidential Information using commercially reasonable efforts and measures; and

• notify the other Party as promptly as practicable of any unauthorized use or disclosure of Confidential Information.

3. The Receiving Party may disclose Confidential Information to those of its employees and/or agents who need to know this Confidential Information for the purpose of performing the Agreement.

4. Party’s obligations under Clause 4.2 shall not apply to any Confidential Information that:

• Receiving Party knew prior to learning it under this Agreement,  

• is now, or becomes in the future, publicly available other than as a result of any breach of this Agreement by receiving Party or its Representatives;

• a third party discloses to receiving Party as a matter of right, without any restriction on disclosure, and without any breach of any direct or indirect obligation of confidentiality to the other party; or

• receiving Party independently develops without use of Confidential Information

5. Notwithstanding other provisions of this Agreement, receiving Party  may disclose Confidential Information only to the extent and to the persons or entities required under applicable governmental law, rule, regulation or order, provided that  receiving Party: (i) first gives prompt notice of such disclosure requirement to the other Party, so as to enable that Party to seek any limitations on or exemptions from such disclosure requirement; and (ii) reasonably cooperates at other Party’s request in any such efforts by that Party.

6. For the purposes of this Agreement, the following terms shall have the following meanings:

“Company Background IP”: means any Intellectual Property Rights owned by or licensed to Company prior to the period of time that is covered by the Agreement or created independently of the Services during the term of this Agreement;

“Customer Background IP”: mean any Intellectual Property Rights owned by or licensed to Customer prior to the period of time that is covered by the Agreement, which is or will be used by Company for the purposes of providing the Services;

“Intellectual Property Rights” (IP): means patents; utility models; rights to inventions, discoveries and improvements whether or not capable of protection by patent or other registration; copyrights and related rights; rights in designs; trade marks and service marks; business names and domain names; rights in get-up; database rights; rights to use, and protect the confidentiality of, confidential information (including trade secrets) and all other intellectual property rights (in each case whether or not recorded in any medium and whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights) and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world; and

“Work Product”: means any outputs, whether electronic, documentary, tangible or intangible and generated in the performance of the Services, including, without limitation, all data, results, documents, products, materials, deliverables and any other materials conceived, reduced to practice, created or otherwise developed solely or jointly by Company’s Representative or Representatives in connection with the Services, and any Intellectual Property Rights subsisting therein.  

7. Customer understands and agrees that the tools, platforms, solutions and/or software, used by Company and/or embedded in the Service and/or deliverables may contain third party IP rights; Customer shall not acquire any right, title or interest in or to such rights by virtue of the Agreement.

8. In relation to Customer Background IP:

Customer and/or its licensors shall retain ownership in and to all Customer Background IP; and

Customer hereby grants to Company a non-exclusive, royalty-free, non-transferable and assignable license to use the Customer Background IP during the term of the Agreement mainly for the purpose of providing the Services to Customer and/or Customer’s clients. Under this Agreement, the Customer allows the Company to access, reverse engineer, decompile, disassemble and modify the source code, object code or underlying structure and algorithms of the Customer Background IP.

9. In relation to Company Background IP:

Company and/or its licensors shall retain ownership in and to all Company Background IP; and

Company grants to Customer a revocable, non-exclusive, royalty-free, non-transferable and non-assignable license to use the Company Background IP for the purpose of the Agreement during the term of the relevant Service Order subject to Customer fulfilling all its obligations under the Agreement. Except for the license granted in this clause, Customer shall not acquire any right, title or interest in or to the Company Background IP under the Agreement.

10. In relation to Work Product, Software or Services and IP created in relation to Services:

Company shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions and/or other technology developed in connection with the Services, including without limitation the ones necessary and/or agreed upon for the integration with the Customer and/or Customer’s clients applications and platforms, and (c) all intellectual property rights related to any of the foregoing.  

Company grants Customer and, as the case may be to Customer’s clients, a revocable, non-exclusive, royalty-free, non-transferable and non-assignable license to use the Work Products, Software or Services and IP created in relation to Services, including improvements and developments to software, platforms and systems of the Customer and Customer’s clients and any derivative works based on the Services, during the term of the relevant Service Order for the purpose of the Agreement, throughout the Territory and subject to Customer fulfilling all its obligations under the Agreement. “Territory” means the countries and territory of the countries where CUSTOMER and Customer’s clients have operations in relation to the Services, mentioned in the Services Order Form. Except for the license granted in this clause, Customer shall not acquire any right, title or interest in or to any of the above.

11. Company shall have the right to freely use any ideas and know-how that became known or developed by the Company and its Representative during provision of the Services and the Company shall own and retain all right, title and interest in and to Work Products, Software, Services and IP created in relation to Services, including changes, improvements and developments to Company Background IP, software, platforms and systems of the Customer and Customer’s clients and any derivative works based on the Services.  

12. The Parties may agree expressly in writing in the relevant Service Order that certain rights over some of the deliverables provided to Customer under this Agreement and the relevant Order will be assigned to Customer and/or Customer’s clients. For the avoidance of any doubt, the Company and/or its Representatives shall have the right to develop and provide to any person and entity, all around the world, any kind of software, platforms, applications, systems and any other products and services, including ones similar to Customer’s software, platforms, applications, systems, products and/or services.

13. Customer warrants to the Company that the Customer proprietary information will not infringe the Intellectual Property Rights or other legal rights of any person, and will not breach the provisions of any law, statute or regulation, in any jurisdiction and under any applicable law.  

14. The Company shall own all right, title and interest in and to all Company data as well as all aggregate data (except for personal data processed on behalf of Customer) related to this Agreement, including aggregate data related to Customer’s clients and/or potential clients and shall have the right to decide to further keep data related to Customer’s clients and/or potential clients which is collected / obtained from sources other than the Customer, as well as any data that is based on or derived therefrom.

15. The Customer understands and agrees that the Company may copy, reproduce, store, distribute, publish, export, adapt, edit and translate the Customer Data to the extent reasonably required for the performance of the Company’s obligations and the exercise of the Company’s rights under this Agreement and/or under the applicable law.  

4.16. Notwithstanding anything to the contrary, Company shall have the right collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies, Customer shall own all right, title and interest the results of such analysis.  

4.17 Without affecting other provisions of this Agreement, if or when acting as a processor of the Customer, the Company will process personal data within the permitted extent and for the purpose of executing this Agreement and rendering the Services and the Customer shall be sole responsible for all processing when Customer is controller and Company is processor, including for complying with the provisions of the applicable laws on personal data processing and protection. For the situations when Company is acting as a personal data processor on behalf of the Customer, the DATA PROCESSING AGREEMENT made available by the Company on its platform and as modified from time to time by Company shall apply. In all other cases or for processing otherwise, the Company will be deemed as controller and each party as controller shall be responsible for its own processing, its own systems and for complying with the provisions of the applicable law set out for controllers.

The Customer understands that some data pertaining to Customer and/or data subjects processed through third party systems and/or platforms, may be kept by the provider of that system or platform itself and remain /be available to the such third parties, according to the terms and conditions of such provider (e.g Facebook). The Customer understands that the Company may operate, host and/or maintain Services offered to Customer using a cloud provider (such as Amazon AWS) and has no control on the location of the servers’ location of the latter.

4.18.    Company will be free (during and after the Term hereof) to (i) use information and data acknowledged during provision of Services to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and (ii) disclose such data in connection with its business.  

4.19. To the extent necessary to provide the Services and to improve and promote Company products and services, Customer grants Company a worldwide and royalty-free intellectual property license to use Customer Content, for example, to make copies of, retain, transmit, reformat, display, and distribute via the Services. Customer Content may appear in demonstrations or materials that promote the Company Services.

5. PAYMENT OF FEES

1. Customer will pay Company the applicable fees, charges, costs and other amounts mentioned in the Order Form in relation to the Services and the Agreement, all amounts being deemed as net of taxes unless otherwise specified.  If additional fees, charges and/or costs are borne by the Company in relation to Services, Customer may be billed for such amounts and Customer agrees to pay the additional fees and charges in the manner provided herein as well as costs incurred by Company with third parties to be passed on to Customer.

2. Company reserves the right to change the fees or applicable charges and to institute new charges and fees, upon thirty (30) days prior notice to Customer (which may be sent by email or other reasonable manner) before changes / new fees and charges take effect. If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than 10 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit.  Inquiries should be directed to Company’s customer support department.

3. Company may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Company within 10 (ten) working days after the date of the invoice unless Parties agree other payment terms in the Order Form.  Unpaid amounts are subject to a finance charge of 1% per month on any outstanding balance, or the maximum permitted by law, capped to the total outstanding amount, plus all expenses of collection and may result in immediate suspension or termination of Service at Company discretion. Customer shall be responsible for all taxes and contributions associated with Services other than Netherlands taxes based on Company’s net income.

In case the Services are provided to one or more of the Customer’s clients, the Customer understands and agrees that its clients may pay any amounts to the Company in relation to the Services upon client unilateral decision and Company’s notification to Customer in this regard.

4. https://www1.oanda.com/lang/en/currency/converter/ exchange rate will be applied to calculate any fees that have as reference any other currency than EUR.

6. TERM AND TERMINATION

1. The Agreement shall commence on the date when the Service Order is signed or the date expressly mentioned in the Service Order (Commencement Date or Effective Date). Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order Form, and shall be deemed automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term. If, by exception, the Customer and the Company sign the Terms without signing a Service Order, the signing date of the Terms shall be deemed as the Commencement Date and the Initial Service Term shall be of 12 months. Also, parties may agree in writing that the terms and conditions of the MSA apply accordingly to their activity previous to the Commencement Date.

2. In addition to any other remedies it may have, either party may terminate this Agreement upon thirty (30) days’ notice if the other party materially breaches any of the terms or conditions of this Agreement, which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so; the Company may suspend the Service or terminate the Agreement without notice, without court intervention or any other additional diligence, in the case of nonpayment.

3. MSA may be ended by unilateral denunciation by either Party giving not less than ninety (90) days written notice of termination to the other Party at any time.

4. In all cases, the moment the Agreement ceases regardless of cause, Company may cease providing Services, all licenses and rights granted hereunder to Customer will be deemed as terminated. Customer will pay in full for the Services and amounts already incurred and/or undertaken by the Company up to and including the last day on which the Services are provided.  

5. Upon any termination, Company will make all Customer Data available to Customer for electronic retrieval for a period of thirty (30) days in the format generally used by the Company, but thereafter Company may, but is not obligated to, delete stored data.  

7. WARRANTY AND DISCLAIMER

Company shall use reasonable efforts to maintain the Services in a manner which minimizes errors and interruptions in the Services.  

Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control. The Company shall provide the Customer with reasonable advance notice in writing or by e-mail of its scheduled service disruption.  

However, Company does not warrant that the Services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the Services.  EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

8. INDEMNITY  

1. Each Party will indemnify, defend and/or handle at its own cost and expense any claim or action brought by a third party against the other Party, if, and to the extent that, such claim or action arises out of or relates to:  

a) any breach of such Party’s representations, warranties, or obligations expressly undertaken in this Agreement.  

b) claims based on any protected intellectual property rights of a third party resulting from infringement of any patent or any copyright or misappropriation of any trade secret, trademarks, by the indemnifying Party hereunder, except for the open-source software and solutions used by Company and/or embedded in the Services and results of the Services.  

2. The above indemnification obligations do not apply unless the putative indemnified Party notifies the putative indemnifying Party in writing within 30 (thirty) days of becoming aware of a threat, claim or proceeding potentially giving rise to the other Party’s indemnification obligation, as set out in this clause. Upon being notified about the claim, the indemnifying Party has the right to participate, at its own cost and expense (including, without limitation, attorneys’ fees), in the defense and/or negotiations for its settlement or compromise of any such claim or action in order to protect its own interests. The defense and/or negotiations for settlement or compromise will mainly be conducted by the indemnified Party. The indemnifying Party will not be responsible for any settlement it does not approve in writing, save for final and binding court decisions and unchallenged final decisions of the public authorities.

3. The foregoing obligations do not apply with respect to portions or components of the Service (i) not supplied by Company, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by Company, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Service is not strictly in accordance with this Agreement.  

4. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Company to be infringing, Company may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Service.

8.5. Customer hereby agrees to indemnify, defend and hold harmless against any damages, losses, liabilities, settlements and expenses in connection with any claim or action that arises from an alleged violation of any third parties’ rights into the resources, applications, software and/or systems used by the Customer in relation to this Agreement, especially the ones for which the Company develops integration services and the integration layer.

In case the Services are provided to one or more of the Customer’s clients, the Customer understands and agrees that the Company shall not be liable for any indemnities specifically agreed between the Customer and its clients.

9. LIMITATION OF LIABILITY

EXCEPT FOR BODILY INJURY OF A PERSON, THE COMPANY (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND RELATED TECHNOLOGY COMPANYS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; (D) FOR ANY MATTER RELATED TO THE OPEN SOURSE SOFTWARE AND/OR SOLUTIONS USED BY COMPANY AND/OR EMBEDDED IN THE SOFTWARE, SERVICE OR ANY RESULTS OF SERVICES AND/OR (E) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE 3 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  

10. CUSTOMER OBLIGATIONS

Customer shall provide the necessary assets, support and resources, and shall comply with Customer Obligations including:  

• Co-operate with the Company in all matters relating to the Services.  

• Provide access to Company Background IP, APIs, premises, data, resources, technology systems and provide all necessary commercial, technical and operational support to integration, facilitate the launch and maintenance of the Services.  

• Provide and maintain documentation and all information related to Customer technology systems that are required for performance of the Services, including and not restricted to interfaces to Customer apps and backend systems that enable jointly agreed functionalities and user experience.

• Provide such information as the Company may reasonably request, in order to carry out the Services in a timely manner.  

• Make all commercial and technical efforts to integrate the Services according to specifications provided, according to jointly agreed technical solution design and within the timelines provided by agreed project plan.

• Maintain availability of systems required to process requests of the Company, under conditions mentioned in the MSA.

• Cover the costs of any roll out plans further agreed in writing by the Parties.  

• Provide technical and operational support to resolve any incidents that impact the functionality and user experience of Services, according to jointly agreed incident management process.

• Provide commercial and operational support to agree methodology, implement and track the set of indicators and metrics as agreed with the Company.

• Make all reasonable financial-commercial, technical and operational efforts to execute the agreed rolling plans during the Term.

• Customer may be required to sign up a number of paid user licenses in order to perform the planned roll out activities, including but not limited to the acceptance tests.

• Pay all amounts to the Company as set forth under the Agreement.

• Customer hereby agrees to indemnify, defend and hold harmless against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of any third parties’ rights into the resources, applications, software and/or systems used by the Company in relation to this Agreement, especially the ones for which the Company develops integration services.

• Customer understands and agrees that should the Customer late or fail to fulfill any of the Customer obligations, the Company may at its sole discretion chose to apply one or more of the remedies it has under the Agreement and the law, including: i) to waive any of its obligations related to the Services including without limitation to deliver Services on time, ii) to suspend any of the Services, iii) to  adjust the scope of Services and functionalities to be delivered as part of the Agreement and its obligations as described in this Agreement, iv) to withdraw any right of commercial exclusivity if such a right is initially granted to Customer and/or v)  to terminate the agreement.

11. GOVERNING LAW AND DISPUTE RESOLUTION

1. This Agreement shall be governed by the Netherlands law, regardless of conflict of laws principles. Any disputes arising from the Agreement including the validity, invalidity, any claims, breach or termination thereof, difference of opinion, or disagreement (“Dispute”) shall be first submitted to be resolved amiably between Parties by DISPUTE RESOLUTION PROCEDURE below.

2. DISPUTE RESOLUTION PROCEDURE  

1. Any Dispute shall first be referred to the persons appointed by Customer and Company respectively to settle the Dispute (Dispute Resolution Representatives) for resolution who shall seek, in good faith, to amicably and promptly resolve the Dispute within 30 days of the Dispute being referred to them or such other later date as may be agreed between the parties in writing.

2. Meetings shall be minuted and chaired by the Party calling for the meeting (but the chairman shall not have a casting vote). The Parties may agree in writing to extend the period to resolve the Dispute or take such other action as may be agreed.

3. In case by the DISPUTE RESOLUTION PROCEDURE Parties do not come to an agreement within the 30 days period after a request was first submitted in the Dispute Resolution Procedure and do not mutually agree to extend the period to resolve the Dispute, they may refer it for solving to exclusive jurisdiction of the courts in Amsterdam, the Netherlands, for all Disputes arising out of or relating to the Agreement.

12. MISCELLANEOUS

1. When using the Services, Customer will abide the following rules:

• Shall not do anything illegal.

• Shall not engage in any activity that exploits, harms, or threatens to harm children.

• Shall not use the Services to share inappropriate content or material (involving, for example, nudity, bestiality, pornography, offensive language, graphic violence, or criminal activity).

• Shall not use Service to engage in activity that is fraudulent, false or misleading.  

• Shall not circumvent any restrictions on access to or availability of the Services.

• Shall not engage in activity that is harmful to Company, the Services or others (e.g., transmitting viruses, stalking, posting terrorist or violent content, communicating hate speech, or advocating violence against others).

• Shall not infringe upon the rights of others (e.g., unauthorized sharing of copyrighted material).

If Customer violates these Terms, Company may immediately suspend providing Services to Customer.

If Customer violates the above rules Company may choose to suspend the Service or terminate the Agreement without notice, without court intervention or any other additional diligence.

2. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.  

3. This Agreement is not assignable, transferable or sublicensable by Customer except with Company’s prior written consent.  The Customer understands and agrees Company may transfer, sub-license, sub contract and/or assign any of its rights and obligations under this Agreement and that Services, in part or in whole, may be provided by the directly or indirectly- through various subcontractors, without the last case affecting the Company’s liability towards the Customer.  

4. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Company in any respect whatsoever.

5. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed by the system, if transmitted by e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.  

6. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.  

7. Company may change these Terms at any time and inform the Customer of the updated version. The Customer may denunciate the Agreement within 10 days from receiving notification of such change if does not agree to the updated / new Terms. Using the Services after the changes become effective means Customer agrees to the updated Terms. If Customer does not agree to the new terms, it must stop using the Services before changes come into effect.

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