Terms and Conditions
- User subscriptions and usage
- Additional user subscriptions and volume capacity
- Client data and data protection
- Third party providers
- Supplier’s obligations
- Client’s obligations
- Proprietary rights
- Limitation of liability
- Term and termination
- Force majeure
- Entire agreement
- No partnership or agency
- Third party rights
- Variation and change control
- Governing law, jurisdiction and place of performance
- In these general terms and conditions, unless the context otherwise requires, the following shall mean:
Authorised users are the Client, Client Group Companies OR employees, agents and independent contractors of the Client and bGrid who are mutually authorised by the Client and bGrid to use the Services and the Controlling Specification in accordance with this Agreement.
Business day refers to any day which is not a Saturday, Sunday or public holiday in the Netherlands.
Change of Control
Change of control is the direct or indirect acquisition of either the majority of the voting stock, or of all, or substantially all, of the assets, of a party by another entity in a single transaction or a series of transactions.
Client data is the data inputted by the Client, Authorised Users, or bGrid solely on the Client’s behalf for the purpose of using the Services or facilitating the Client’s use of the Services.
Confidential information is information that is proprietary or confidential to either party and is either clearly labelled as such or identified as Confidential Information in clause 11.
Controlling specification is the document OR documents made available to the Client by bGrid online via an internet web address or such other IP address notified by bGrid to the Client and detailed within schedule 5 and as updated from time to time which sets out a description of the Services, specifications, system/access requirements and the user instructions for the Services.
Effective date is the date set out in the signature page to this Agreement or such other date as is agreed between the parties or, if neither is specified, the date of signature of the last party to sign.
Event of Force Majeure
Event of force majeure shall have the meaning as set out in clause 16.
Group company is a company or other legal person within the relevant party’s group of companies, including the relevant party itself, its ultimate holding company, and companies or other legal persons controlled directly or indirectly by such ultimate holding company.
Initial Subscription Term
Initial subscription term is the initial term of this Agreement as set out in Schedule 2.
Normal Business Hours
Normal business hours are 8.00 am to 6.00 pm local time in the Netherlands, each Business Day.
Purpose is the internal business operations of the Client and such Client Group Companies as are Authorised Users, as may be further specified in Schedule 5 and Schedule 6.
Renewal period is the period described in clause 14.1.
Services is the subscription services provided by bGrid to the Client for the Purpose pursuant to the Statement of Supply, as may be more particularly described in the Controlling Specification.
Software is the software applications provided by bGrid as part of the Services.
Statement of Additional Client Responsibilities
Statement of additional client responsibilities is Schedule 6 incorporated into this Agreement, specifying the Client responsibilities in addition to those set out elsewhere in this Agreement.
Statement of Price
Statement of price is the schedule incorporated into this Agreement specifying the price, calculation, payment and similar requirements for the Services as set out at Schedule 1.
Statement of Supply
Statement of supply is the schedule incorporated into this Agreement specifying the Services as set out at Schedule 2.
Subscription fees the subscription fees payable by the Client to bGrid for the User Subscriptions, as set out in the Statement of Price.
Subscription term has the meaning given in clause 14.1.
Support Services Policy
Support services policy is bGrid’s policy for providing support in relation to the Services as made available online via an internet web address or such other IP address notified by bGrid to the Client and detailed within schedule 5 or as may be provided to the Client from time to time.
Usage fees are the fees set out in the Statement of Price payable by the Client to bGrid pursuant to clause 9.1 which relate to use of the Services and Volume Capacity by each Authorised User.
User subscriptions are the subscriptions purchased by the Client pursuant to clause 9.1 which entitle Authorised Users to access and use the Services and the Controlling Specification for the Purpose in accordance with this Agreement.
Virus is anything or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any program or data or system, including the reliability of any program or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
Volume capacity is the measured usage of the Services in accordance with the categories and measurements specified in the Statement of Price.
1.2 The headings to the clauses, schedule, paragraphs and index of this Agreement are for reference only and shall not affect the interpretation or construction of this Agreement.
1.3 A reference to writing or written includes e-mail but not faxes.
2. USER SUBSCRIPTIONS AND USAGE
2.1 Subject to the Client paying the User Subscriptions and/or Usage Fees in accordance with clause 3.3 and clause 9.1, the restrictions set out in this clause 2 and the other terms and conditions of this Agreement, bGrid hereby grants to the Client a non-exclusive, non-transferable right to permit the Authorised Users to use the Services during the Subscription Term solely for the Purpose.
2.2 In relation to the Authorised Users, the Client warrants that:
a. the maximum number of Authorised Users that it authorises to access and use the Services shall not exceed the number of User Subscriptions it has purchased. All Authorised Users must be approved by bGrid in writing in advance, such approval not to be unreasonably withheld;
b. it shall, and shall procure that each Authorised User shall, only use the Services for the Purpose;
c. it shall not allow or suffer any User Subscription to be used by more than one individual, use of the Services by any party who is not an Authorised User, and that any former Authorised Users shall no longer have any access to or use of the Services and/or Controlling Specification;
d. each Authorised User shall keep a secure password for such Authorised User’s use of the Services, that such password shall be changed no less frequently than quarterly in accordance with the requirements of the Controlling Specification and that each Authorised User shall keep the password confidential;
e. it shall maintain a written, up to date list of current Authorised Users and provide such list to bGrid within 5 Business Days of bGrid’s written request;
f. if any of the audits referred to in clause 2.2f reveal that any password has been provided to any user who is not an Authorised User, then without prejudice to bGrid’s other rights, the Client shall promptly disable such passwords and bGrid at bGrid’s sole option shall not issue any new passwords to any such user and may disable any existing passwords in use by such user; and
f. if any of the audits referred to in clause 2.2f reveal that the Client has underpaid Subscription Fees and /or Usage Fees to bGrid, the Client shall pay to bGrid an amount equal to such underpayment as calculated in accordance with the prices set out in the Statement of Price or Initial accepted proposal plus late payment interest at the rate specified in clause 26 from the date upon which such usage should have been correctly charged within 10 Business Days of the date of the relevant audit. In the event that the amount of underpayment determined through the audit is greater than 20 percent below what should rightfully have been paid, the Client agrees to pay bGrid’s invoice for the reasonable costs of the relevant audit.
2.3 The Client shall not, shall ensure that each Authorised User shall not, and shall not permit others to, use or attempt to use the Software or the Services or access, copy, store, distribute or transmit any Viruses or any material whatsoever during the course of its use of the Services that:
a. is or could be unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or discriminatory under any law or regulations applicable to the Services or bGrid;
b. causes or could cause damage or injury to any person or property, or infringement of intellectual property rights or a breach of confidentiality; or
c. could constitute a denial of service attack, prevents or could prevent access to the Services by other users, does or could materially affect the performance of the systems upon which the Service operates, or does or could restrict bGrid’s ability to process Client Data.
bGrid reserves the right, without liability to the Client or any Authorised User, to suspend and/or disable the Client’s access and/or any Authorised Users’ access to and/or delete any material that in bGrid’s sole opinion breaches the provisions of this clause.
2.4 The Client shall not:
a. subject to clause 20.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Controlling Specification available to any third party except where this is expressly set out in the Purpose; or
b. attempts to obtain, or assist third parties in obtaining, access to the Services and/or Controlling Specification, other than as provided under this clause 2.
2.5 The Client shall use all reasonable endeavours and good applicable industry practice to prevent any unauthorised access to, or use of, the Services and/or the Controlling Specification and, in the event of any such unauthorised access or use, promptly notify bGrid and reasonably co-operate with bGrid in the investigation of the same, including but not limited to procuring such reasonable assistance from all Authorised Users and other relevant third parties.
3. ADDITIONAL USER SUBSCRIPTIONS AND VOLUME CAPACITY
3.1 Subject to clause 3.2 and clause 3.3, the Client may, from time to time during any Subscription Term, purchase additional User Subscriptions and/or Volume Capacity in excess of the number set out in Schedule 1 and request additional Authorised Users be added to the Services. bGrid shall grant access to the Services and the Controlling Specification to any additional Authorised Users in accordance with the provisions of this Agreement.
3.2 If the Client wishes to purchase additional User Subscriptions and/or Volume Capacity or request that additional Authorised Users be added to the Service, the Client shall request such additional Services in writing in accordance with bGrid’s procedures as may be applicable from time to time, the Change Control procedure set out in Schedule 4.
3.3 If bGrid approves the Client’s request to purchase additional User Subscriptions and/or Volume Capacity and such approval shall not be unreasonably withheld, the Client shall, within 30 days of the date of receipt of bGrid’s invoice, pay to bGrid the relevant fees for such additional User Subscriptions and/or Volume Capacity as set out in the Statement of Price.
4.1 bGrid shall, during the Subscription Term, provide the Services and make available the Controlling Specification to the Client on and subject to the terms of this Agreement.
4.2 Subject to any provisions specified in Schedule 5 the Controlling Specification, bGrid shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:
a. planned maintenance carried out during the maintenance window of 10.00 pm to 2.00 am local time The Netherlands or such maintenance window as shall be set out in the Controlling Specification;
b. unscheduled maintenance performed outside Normal Business Hours, provided that bGrid has used reasonable endeavours to give the Client at least 6 Normal Business Hours’ notice in advance;
c. unscheduled maintenance performed during Normal Business Hours as may be required by bGrid in an emergency;
d. such periods as the Client has not paid Supplier pursuant to clause 26.1; and
e. any periods during which an Event of Force Majeure exists.
5. CLIENT DATA AND DATA PROTECTION
5.1 The Client shall own all rights, title and interest in and to all of the Client Data and shall have sole responsibility for the use, legality, reliability, integrity, accuracy and quality of the Client Data.
5.2 The Client shall follow the archiving/back-up procedures for Client Data as set out in the Controlling Specification or, if no such archiving/back-up procedures are specified, such procedures as a reasonably prudent Client of the Services would be expected to take to preserve its data both prior to commencement of the Services and during the provision of the Services. In the event that bGrid is responsible for any loss or damage to Client Data, the Client’s sole and exclusive remedy shall be for bGrid to use reasonable endeavours to restore within a reasonable period the lost or damaged Client Data from the latest back-up of Client Data maintained by bGrid in accordance with such archiving/back-up procedure as may have been purchased by the Client as part of the Services. bGrid shall not be responsible for any loss, destruction, alteration or disclosure of Client Data caused by any third party (except such third parties as may be subcontracted by bGrid to perform services related to Client Data maintenance and back-up), an Event of Force Majeure, or caused by bGrid following the Client’s instructions.
5.3 bGrid shall, in providing the Services, comply with its policy relating to the privacy and security of the Client Data as provided to the Client or as may be notified to the Client from time to time, such document may be amended from time to time by bGrid in its sole discretion.
5.4 If bGrid processes any personal data on the Client’s and/or any Authorised User’s behalf when performing its obligations under this Agreement, the parties record their intention that the Client (or any Authorised User supplying any personal data] shall be the data controller and bGrid shall be a data processor.
5.5 bGrid is allowed to use the Client Data for the purpose of benchmarking, trending, analyses and development, with the restriction that any external communication shall not disclose the building location, organisation, or employees of the Client.
5.6 The parties shall comply with the data protection provisions specified in Schedule 3
6. THIRD PARTY PROVIDERS
7. bGrid’s OBLIGATIONS
7.1 bGrid shall perform the Services :
a. substantially in accordance with the Controlling Specification; and
b. with reasonable skill and care.
7.2 The obligations of bGrid mentioned in clause 7.1 shall not apply to the extent of any non-conformance which is caused, or contributed to, by use of the Services contrary to this Agreement, failure to follow promptly bGrid’s reasonable instructions, an Event of Force Majeure, bGrid following the Client’s instructions, or addition, modification or alteration of the Services by any party other than bGrid or bGrid’s duly authorised contractors or agents. If the Services do not conform with the obligations set out in clause 7.1, bGrid shall, at its expense, use reasonable commercial endeavours to correct any such non-conformance, or provide the Client with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Client’s sole and exclusive remedy for any breach of the obligations set out in clause 7.1. Notwithstanding the foregoing, bGrid:
a. does not provide any representation, condition or warranty that the Client’s use of the Services will be totally uninterrupted or error-free; nor that the Services, Controlling Specification and/or the information obtained by the Client through the Services will meet the Client’s requirements or purposes; and
b. is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Client acknowledges that the Services and Controlling Specification may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
7.3 This Agreement shall not prevent bGrid from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are the same or similar to those provided under this Agreement.
8. CLIENT’S OBLIGATIONS
8.1 The Client shall, and shall ensure that Authorised Users shall, at no charge to bGrid:
a. provide bGrid with:
(i) all necessary co-operation in relation to this Agreement;
(ii) all necessary access to complete and accurate information, systems, premises, facilities and utilities as may be required by bGrid;
(iii) all necessary assistance in a timely manner from an appropriately skilled, experienced and authorised representative, including such status update reports as bGrid may reasonably require; and
(iv) anything identified in the Statement of Additional Client Responsibilities (if any),
in order to render the Services;
b. comply with all applicable laws and regulations with respect to its activities under or in connection with this Agreement;
c. carry out all Client responsibilities set out in this Agreement in a timely and efficient manner. In the event of any delays, bGrid may, at its reasonable discretion, adjust any agreed timetable or delivery schedule as reasonably necessary [and make reasonable additional charges];
d. ensure that the Authorised Users use the Services and the Controlling Specification in accordance with the terms and conditions of this Agreement and shall be responsible for
(i) any Authorised User’s breach of this Agreement and
(ii) all activities carried out with an Authorised User’s password;
e. obtain, maintain and execute (as appropriate) all licences, documents, consents, and permissions necessary for bGrid, its contractors and agents to perform their obligations under this Agreement, including without limitation the Services;
f. ensure that its network and systems comply with the relevant specifications provided by bGrid from time to time;
g. be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to bGrid’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Client’s network connections or telecommunications links or caused by the internet; and
h. inform bGrid in writing if at any time during the provision of the Services, the Client notices or suspects that wrong assumptions have been made or wrong directions have been taken by bGrid.
8.2 The Client shall comply, and shall procure that each Authorised User shall comply, with all minimum volume and/or Volume Capacity commitments as may be specified in the Statement of Price.
8.3 The Client acknowledges and represents that the Dutch equivalent of the Transfer of Undertakings (Protection of Employment) Regulations 2006 being the ‘overgang van onderneming’ as mentioned under Dutch Law in article 7:662 BW et seq, as the same may be amended or varied (“Transfer Regulations”), do not apply to any use of, or provision of, the Services pursuant to this Agreement. If it is subsequently determined by a court or other tribunal of competent jurisdiction that the Transfer Regulations do apply to the Services and/or the manner in which they are performed by bGrid or any Supplier Group Company pursuant to this Agreement and/or any employee or former employee of the Client or any Authorised User, the Client shall indemnify and hold harmless bGrid against any costs, claims, liabilities, damages, expenses and/or fines incurred by bGrid in respect of redundancy, unfair dismissal, wrongful dismissal, breach of the Transfer Regulations or other claims relating to such employees, former employees and/or third parties. Each party agrees, at the other party’s request, to provide reasonable assistance to comply with legal obligations and to help the other party to mitigate its liability in relation to this clause.
9. PROPRIETARY RIGHTS
9.1 The Client acknowledges and agrees that bGrid and/or its licensors own all intellectual property rights in the Services and the Controlling Specification. Except as expressly stated herein, this Agreement does not grant the Client any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trademarks (whether registered or unregistered), design rights, service marks, right of confidentiality, or any other rights or licences in respect of the Services or the Controlling Specification.
9.2 The Client shall not, and shall procure that the Authorised Users shall not:
a. remove any copyright notice or any other designation of ownership of intellectual property rights included in the Services;
b. link to, integrate with or otherwise use the Services (including the Software) in any manner which could affect bGrid or bGrid’s licensors’ rights in the intellectual property included in the Services or place obligations onto bGrid or its licensors in relation to such intellectual property.
10.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under this Agreement. A party’s Confidential Information shall not be deemed to include information that:
a. is or becomes publicly known other than through any act or omission of the receiving party;
b. was in the other party’s lawful possession before the disclosure;
c. is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
d. was available to the receiving party on a non-confidential basis prior to disclosure by the disclosing party; or
e. is independently developed by the receiving party, which independent development can be shown by written evidence.
10.2 Each party shall hold the other’s Confidential Information in confidence and not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of this Agreement, provided however, that the receiving party may disclose Confidential Information only on a need to know basis, as reasonably necessary for the purposes of this Agreement including the purposes described in the privacy policies of the Parties, to those employees, officers and directors of
(a) receiving Party, (b) receiving Party’s affiliates, (c) receiving Party’s (and its affiliates’) attorneys and accountants who are directly engaged in the Purpose and (d) any natural person (not being employed by the receiving Party) who the receiving Party involves for the purposes of this Agreement (collectively, the “Representatives”), provided in each case, that such persons are informed of the confidential nature of the Confidential Information in accordance with this Agreement and that receiving Party will be liable for any breach of the terms of this Agreement by any of its Representatives.
10.3 Notwithstanding the foregoing:
a. each party may disclose the other’s Confidential Information:
(i) to its professional advisors, auditors and insurers (each a “Permitted Disclosee”), each under an obligation of confidence; and
(ii) to the extent it is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body provided that, where it is lawfully able, it shall notify the other party of such requirement prior to such disclosure; and
b. bGrid may disclose the Client’s Confidential Information to:
(i) bGrid Group Companies; and
(ii) bGrid’s and bGrid Group Companies’ subcontractors where disclosure to such subcontractors is for the purposes of this Agreement, and each such disclosee shall be a Permitted Disclosee of Supplier for the purposes of this clause 11.
10.4 Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not used, retained, disclosed or distributed by its Permitted Disclosees in violation of the terms of this Agreement.
10.5 Subject to clause 11.4, neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party other than its Permitted Disclosee.
10.6 The Client acknowledges that details of the Services, and the results of any performance tests of the Services, constitute bGrid’s Confidential Information.
10.7 bGrid acknowledges that the Client Data is the Confidential Information of the Client. The Client acknowledges that proprietary and confidential information of bGrid Group Companies and bGrid’s licensors is the Confidential Information of bGrid for the purposes of this Agreement.
10.8 Nothing in this Agreement shall prevent bGrid or any bGrid Group Company’s from disclosing or using in the course of its business any technical knowledge, skill and/or expertise of a generic nature acquired by it in the performance of this Agreement.
10.9 bGrid and/or bGrid’s Group Companies shall be entitled to identify the Client and Authorised Users as [a] client[s] of bGrid.
10.10 This clause shall survive termination of this Agreement, however arising.
11.1 The Client shall defend, indemnify and hold harmless bGrid [and bGrid’s Group Companies] against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees), including without limitation each of those claimed by third parties and Authorised users, arising out of or in connection with
(i) the Client’s use of the Services and/or Controlling Specification and/or breach of this Agreement including but not limited to clauses 2.3 and 2.4,
(ii) bGrid following the Client’s instructions and
(iii) existing or former employees or contractors of the Client or any Authorised User including but not limited to employment-related claims, claims that an employee or contractor has become an employee or contractor of bGrid or a bGrid Group Company. bGrid shall:
a. give the Client prompt notice of any such claim;
b. provide reasonable co-operation to the Client in the defence and settlement of such claim, at the Client’s expense;
c. give the Client sole authority to defend or settle the claim, provided that such defence or settlement is conducted within a reasonable period; and
d. be entitled to receive from the Client such regular updates and information about the claim and its defence as reasonably required by bGrid.
11.2 bGrid shall, subject to clause 12.5, defend the Client, its officers, directors and employees against any claim that the Services or Controlling Specification infringes any patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Client for any amounts awarded against the Client in judgment or settlement of such claims. The Client shall ensure that:
a. bGrid is given prompt notice of any such claim;
b. it provides reasonable co-operation to bGrid in the defence and settlement of such claim, at bGrid’s expense; and
c. bGrid is given sole authority to defend or settle the claim provided that such defence or settlement is conducted within a reasonable period.
11.3 In the defence or settlement of any claim, bGrid may procure the right for the Client to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this Agreement on 2 Business Days’ notice to the Client without any additional liability or obligation to pay damages or other additional costs to the Client other than a pro-rata refund, for the unexpired period of the Subscription Term, of fees paid in advance in relation to the Services which are no longer to be supplied by bGrid due to the application of this clause.
11.4 In no event shall bGrid, its employees, agents and sub-contractors be liable to the Client to the extent that the alleged infringement is based on:
a. a modification or alteration of the Services or Controlling Specification by anyone other than bGrid; or
b. the Client’s use of the Services or Controlling Specification in a manner outside the Purpose or contrary to the instructions given to the Client and/or an Authorised User by bGrid including but not limited to such instructions and/or requirements as are specified in the Controlling Specification; or
c. the Client’s use of the Services or Controlling Specification after notice of the alleged or actual infringement from bGrid or any appropriate authority; or
d. the Services or Controlling Specification having been developed to the Client’s design or incorporating software, documents, materials, ideas, data or other information provided by the Client.
11.5 The foregoing states the Client’s sole and exclusive rights and remedies, and bGrid’s (including bGrid’s and bGrid’s Group Companies’ employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, database right, trade secret, trade name, trade mark (whether registered or unregistered), design right, service mark, or right of confidentiality.
12. LIMITATION OF LIABILITY
12.1 This clause sets out the entire financial liability of bGrid (including any liability for the statements, acts or omissions of its employees, agents and sub-contractors) to the Client in respect of:
a. any breach of this Agreement;
b. any use made by the Client and all Authorised Users of the Services and Controlling Specification or any part of them; and
c. any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Agreement.
12.2 Except as expressly and specifically provided in this Agreement:
a. the Client assumes sole responsibility for results obtained from the use of the Services and the Controlling Specification by the Client and Authorised Users, and for conclusions drawn from such use. bGrid shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to bGrid by the Client or Authorised Users in connection with the Services, or any actions taken by bGrid at the Client’s or Authorised User’s direction;
b. all warranties are, to the fullest extent permitted by applicable law, excluded from this Agreement; and
c. the Services and the Controlling Specification are provided to the Client on an “as is” basis.
12.3 In the event that bGrid fails to perform one or more of its obligations under the Agreement and this failure is attributable to bGrid (“toerekenbare tekortkoming”), the Client shall send bGrid a written notice of default (“ingebrekestelling”), unless it has already become permanently impossible to perform the obligations in which case bGrid shall immediately be in default (“verzuim”). The notice of default shall be in writing and shall contain a reasonable term, which in any event is not less than 30 days, for bGrid to comply with its obligations.
12.4 The liability of bGrid, whether in contract, negligence, other tort or otherwise howsoever arising out of or in connection with this Agreement, is limited to direct damages for an amount equal to EUR 10,000 or the sum of the subscription / service fees (exclusive VAT) paid by the Client hereunder in the
12 month period immediately preceding the event giving rise to the claim, whichever is the greater, for any individual event or series of connected events.
12.5 bGrid’s aggregate liability arising out of or in connection with this Agreement, however arising, shall not exceed EUR 50,000 or 125% of the sum of the subscription / service fees (exclusive of VAT) paid by the Client hereunder in the 12 month period immediately preceding the event(s) giving rise to the claim, whichever is the greater.
12.6 Notwithstanding the foregoing:
a. bGrid does not exclude or restrict liability for:
(i) damage which is the result of wilful misconduct (“opzet”) or deliberate recklessness (“bewuste roekeloosheid”) by bGrid or its managers (“bedrijfsleiding”); or
(ii) any liability which cannot be excluded or limited by mandatory Dutch law (“dwingend recht”); and
b. subject to clause 13.5a, bGrid shall not be liable to the Client for
(i) any consequential or indirect loss or damage, however caused. Indirect or consequential damages include but are not limited to consequential loss, lost profits, lost revenue, lost contracts, lost anticipated savings, loss of goodwill, reputational damage, damage through business interruptions, mutilation or loss of data, loss of business opportunities.
12.7 In deviation of the foregoing, bGrid’s liability for death or bodily injury or damage to property (“personenschade en zaakschade”) shall not exceed € 1,250,000 (one million, two hundred and fifty thousand euro) per event or series of connected events.
12.8 This Agreement has been negotiated in good faith by the parties and each clause of this Agreement has been separately negotiated and specifically agreed upon for inclusion by the parties.
12.9 Each and every limit and exclusion in this clause 12 is independent and severable from the other and if held unlawful or unenforceable that part shall be struck out and the remainder shall remain in effect.
13. TERM AND TERMINATION
13.1 This Agreement shall continue for the Initial Subscription Term and, thereafter, this Agreement shall be automatically renewed for successive individual periods of 12 months (each a “Renewal Period”), unless:
a. either party notifies the other party of termination, in writing, at least 60 days before the end of the Initial Subscription Term or any Renewal Period, in which case this Agreement shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or
b. otherwise terminated in accordance with the provisions of this Agreement;
and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the “Subscription Term”.
13.2 Either party may dissolve (“ontbinden”) this Agreement immediately by written notice to the other party and without any legal intervention being required, if the other party fails to perform any material obligation under this Agreement and this failure is attributable to that party (“toerekenbare tekortkoming”) and is not remedied within a reasonable term, which reasonable term is in any event not less than 60 days after receiving written notice requiring to remedy the failure that refers specifically to this clause 13.2, the nature of the breach and any steps required to remedy it.
13.3 If, at the time of the termination referred to in clause 13.2., bGrid has already performed part of its obligations under the Agreement, this performance and the related payment obligation of the Client shall not be reversed (“ongedaangemaakt”), unless the Client proves that bGrid is in default (“in verzuim”) with regard to that performance. Amounts which bGrid has invoiced before the termination in connection with what it has already properly performed or delivered to execute the Agreement shall, subject to the provisions in the preceding sentence, continue to be owed in full and shall be immediately payable at the time of termination.
13.4 Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate (“beëindiging door opzegging”) this Agreement immediately by written notice to the other party and without any legal intervention being required, if (i) a petition for bankruptcy (“faillissementsaanvraag”) has been filed against the other party or (ii) if the other party is declared bankrupt (“failliet verklaard”), or (iii) application for a moratorium has been filed (“surséance van betaling aanvragen”) against the other party, or (iv) the other party enters into liquidation whether compulsorily or voluntarily (otherwise than for the purposes of amalgamation or reconstruction without insolvency) (“ontbinding van de rechtspersoon”), or (v) makes an arrangement with its creditors (“buitengerechtelijk akkoord met crediteuren”), or (vi) petitions for an administration order (“onderbewindstelling”), or (vii) has a trustee in bankruptcy (“curator”) appointed over any of its assets, or (viii) ceases or threatens to cease to trade or generally becomes unable to pay its debts, or (ix) an Event of Force Majeure remains un-remedied after a period of 45 days. The party, who terminates this Agreement under this Clause 13.4, shall under no circumstances be obliged to refund funds already received or to pay damages.
13.5 Without prejudice to any other rights or remedies to which bGrid may be entitled, bGrid may suspend the Service and/or terminate this Agreement if:
a. the Client fails to pay any sum due under this Agreement; and
b. the Client and/or an Authorised User is subject to a Change of Control [except where, following the Change of Control, the Client and/or the relevant Authorised User remains a Group Company of the Client].
13.6 On termination of this Agreement for any reason:
a. any and all licences granted under this Agreement shall immediately terminate;
b. each party shall return and make no further use of any equipment, property, Controlling Specification and other items (and all copies of them) belonging to the other party;
c. bGrid may destroy or otherwise securely dispose of any of the Client Data in its possession unless bGrid receives, no later than ten days after the effective date of the termination of this Agreement, a written request for the delivery to the Client of the then most recent back-up of the Client Data. bGrid shall use reasonable commercial endeavours to deliver the back-up to the Client within 30 days of its receipt of such a written request, provided that the Client has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Client shall pay all reasonable expenses incurred by bGrid in returning or disposing of Client Data; and
d. the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced.
14.1 The Client acknowledges that the provision of the Services to the Client and any Authorised User may be subject to import, export and re-export restrictions and sanctions imposed by the United Kingdom, European Union, United States and/or other relevant governments. The parties agree that it is the Client’s sole responsibility prior to use of the Services in any country to obtain all necessary licences/permits and to comply with all record-keeping obligations in relation to the use of the Services for the Purpose (including the transfer of any Client Data), and the Client agrees that it shall not, and shall procure that all Authorised Users shall not, access the Services from or use the Services in any country or in any circumstance which is or could be in contravention of any Export Law. Should it be determined by bGrid or a relevant authority that bGrid is the importer, exporter or re-exporter, the Client acknowledges and agrees that the provision of the Services is subject to bGrid obtaining all necessary import, export and re-export licences and permissions. The Client agrees to provide all supporting documentation including but not limited to International Import Certificates and Letters of End-use necessary for bGrid to procure such import, export and re-export licences.
14.2 The Client shall ensure that it and all Authorised Users shall not use or attempt to use the Services from or in countries which bGrid Prohibit. A full list of these countries is available upon request to bGrid.
14.3 The Client warrants that it and each Authorised User shall comply at all times with anti-bribery and corruption legislation, laws and regulations in all jurisdictions and shall not perform any obligation or otherwise do anything or omit to do anything under or in connection with this Agreement in such a way as to cause either bGrid or any of its Group Companies to be in breach of any such legislation, laws or regulations. The Client also warrants that it and each Authorised User shall not use any payments or proceeds received (whether directly or indirectly) from bGrid under this Agreement for any corrupt or improper purpose.
14.4 Both parties acknowledge the concepts of the United Nations Global Compact (“UNGC”) and shall endeavour to comply with the principles of the UNGC in their performance of this Agreement.
15. FORCE MAJEURE
bGrid shall have no liability to the Client under or related to this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes, failure of a utility service or transport or telecommunications network or internet infrastructure, act of God, war, riot, civil commotion, malicious damage, compliance with any law, court or governmental order, rule, regulation, licence, permit or direction or refusal or delay in receiving any necessary licence, permit or direction, accident, breakdown of plant or machinery, fire, flood, storm, or default of bGrid’s or sub-contractors where such default is due to bGrid or sub-contractor suffering from an event specified in this clause (“Event of Force Majeure”), provided that the Client is notified of such an event and its expected duration as soon as reasonably practicable.
16.1 A waiver of any right under this Agreement is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given.
16.2 Unless specifically provided otherwise, rights arising under this Agreement are cumulative and do not exclude rights provided by law.
17.1 If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
17.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
18. ENTIRE AGREEMENT
(a) supersedes any prior agreements, proposals, representations and undertakings between the parties in relation to its subject matter; and
(b) constitutes the entire agreement between the parties relating to its subject matter.
Each party hereby confirms that in entering into this Agreement:
(i) it has not relied upon and shall have no remedy in respect of any representations or warranties outside of this Agreement; and
(ii) the only remedy available to it for breach of warranties shall be for breach of contract under the terms of this Agreement.
19.1 The Client shall not, without the prior written consent of bGrid, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
19.2 bGrid may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
20. NO PARTNERSHIP OR AGENCY
Nothing in this Agreement is intended to or shall operate to create a partnership between the parties or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
21. THIRD PARTY RIGHTS
Nothing in this agreement confers or purports to confer on any Third Party any benefit or right to enforce any term of this Agreement. The Parties agree that the application of Article 6:254, Subsection 1, Article 6:255 and Article 6:256 of the Dutch Civil Code (“Burgerlijk Wetboek”) is expressly excluded.
22. VARIATION AND CHANGE CONTROL
Any variation to this Agreement must be agreed by both parties in writing. Where such variation is covered by the scope of the change control provisions in Schedule 4, such written agreement must be obtained in accordance with the provisions of that Schedule.
23.1 Any notice required to be given under this Agreement shall be in writing and shall be delivered by hand or sent by registered mail with notice of receipt or by a reputable courier service to the other party at its address set out in this Agreement, or such other address as may have been notified by that party for such purposes or sent by fax to the other parties fax number as set out in this Agreement.
23.2 A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by fax shall be deemed to have been received at the time of transmission (as shown by the timed printout obtained by the sender).
24. GOVERNING LAW, JURISDICTION AND PLACE OF PERFORMANCE
24.1 This Agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by, and construed in accordance with, the laws of The Netherlands.
24.2 The parties irrevocably agree that the competent court of Amsterdam have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims) and that such jurisdiction shall be the place of performance of this Agreement.
24.3 Any dispute resolution or legal proceedings arising from this Agreement must be commenced within two years from the earlier of:
a. the date when the party bringing the proceedings first becomes aware of the facts which give rise to the liability or alleged liability; or
b. the date when that party ought reasonably to have become aware of the facts which give rise to the liability or alleged liability.
24.4 The Services shall be provided by bGrid upon the basis of applicable laws and regulations existing and applied to the Services at the Effective Date. To the extent that changes to the Services are required as a result of changes to such laws or regulations, such changes shall be dealt with in the manner prescribed in clause 23.
This Agreement may be executed in any number of counterparts, each of which when executed and delivered shall constitute an original of this Agreement, but all the counterparts shall together constitute the same Agreement. No counterpart shall be effective until each party has executed at least one counterpart.