General terms and conditions

 
1. DEFINITIONS
1.1 The following definitions shall apply to these general terms and conditions of delivery and sale: 

Affiliate means with respect to any person, any other person who controls, is controlled by or is under common control with such person. For purposes of the definition of Affiliate, “control” means the power to direct the management and policies of such person or firm, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise. 

Agreement means the Offer signed by both OneThird and Customer based on an Offer by OneThird, together with these Terms and Conditions, concerning the use of the Equipment and Licensed Software by the Authorized Users. In the event of any conflict, the Terms and Conditions shall take precedence over the Offer and other documents included in the Offer, unless explicitly agreed otherwise. 

Authorized Users means the users authorized by Customer to use the Equipment and/or Licensed Software, in accordance with the terms of this Agreement. 

Confidential Information means all non-public information disclosed by a party (Discloser) to the other party (Recipient), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, such as inventions, designs, drawings, engineering, computer object or source code, research, algorithms, non-published patent applications, technical data and know-how in relation to the Equipment and Licensed Software.  

Customer means any natural or legal person who enters into an Agreement with OneThird, submits a request for an Offer, or enters into negotiations with OneThird for this purpose. 

Customer Data means any information and data uploaded, submitted, posted, transmitted, entered or otherwise provided or made available to OneThird by the Customer or an Authorized User. 

Delivery has the meaning given to it in Section 6.2. 

Discloser means the party disclosing Confidential Information to the Recipient. 

Equipment means each item of equipment provided or sold (as applicable under the Agreement) by OneThird to Customer and all other tangible items, including without limitation, computers, peripherals, cables, interface devices, tools and spare parts, together with associated supplies and documentation, required to allow Customer to use the equipment in connection with the Services, as identified in the Agreement. 

Fees means the fees payable to OneThird by the Customer for supplying the Equipment and provisioning of the Services, as set out in the Agreement. 

Improper Use means use of the Equipment which is, in OneThird’s reasonable opinion, illegal, infringes anyone’s rights (including intellectual property rights), is malicious, obscene, offensive or otherwise causes detriment to OneThird, OneThird’s other customers and/or third parties. 

Installation Site means Customer’s locations, as defined in the Agreement. 

IPR Claim: a claim of a third party stating the infringement of intellectual property rights. 

Licensed Software means OneThird’s proprietary software used to deliver its SaaS Services to the Customer, whether or not in conjunction with the Equipment, as described in the Agreement. 

Loan Period means the period from the date on which the Customer received the Equipment and continuing for so long as agreed in the Agreement. 

Offer means an offer made by OneThird to Customer, subject to acceptance by Customer, identifying at least the Equipment quantities, Services, part numbers, applicable Fees and requested delivery dates of the Equipment being delivered under the Agreement. 

OneThird Data means all data that is not considered to be Customer Data, including but not limited to generated data by the Equipment or otherwise captured (such as a camera), analysis, learnings, algorithms based on this data, models, optimizations, patterns and other output generated by employing OneThird’s proprietary techniques (including but not limited artificial intelligence and machine learning) including all encodings and derivatives thereof. 

Permitted Users has the meaning given to it in Section 17.1. 

Recipient means the party receiving Confidential Information from the Discloser. 

Resultant Data means any and all information, data and other content, not being Customer Data, that is derived by or through the SaaS Services from processing Customer Data and is sufficiently different from such Customer Data that such Customer Data cannot be reverse engineered or otherwise identified from the inspection, analysis or further processing of such information, data or content. OneThird shall have no right or title to, or any proprietary right in, any Resultant Data other than the perpetual, limited license granted to OneThird under these terms. 

SaaS Services means the Licensed Software provided directly by OneThird to Customer as a Software as a Service (SaaS) in accordance with the terms of the Agreement. 

Services means the services OneThird has agreed to perform for the Customer under  the Agreement, including the SaaS Services and the technical assistance and support as set forth in the applicable support conditions of OneThird. 

Terms and Conditions means these terms and conditions. 

Usage Data means any data reflecting the access or use of Customer of the Services by or on behalf of Customer or any Authorized User, including any end user profile-, visit-, session-, impression-, click through- or click stream- data, including any statistical or other analysis, as well as copies, improvements, modifications, adaptations, translations and other derivative works of, based on, derived from or otherwise incorporating any of the foregoing. 


1.2 Whenever “written” or “in writing” is used in the Terms and Conditions it shall mean by letter, fax, e-mail, electronic data interchange, internet or by means of any other usual (electronic) trade medium. 

2. APPLICABILITY 

2.1 These Terms and Conditions are applicable to all legal relationships of OneThird acting as (potential) seller and/or supplier of Equipment and Services. 

2.2 Agreements are concluded between OneThird and Customer. The Customer is responsible for the use of the Equipment and Licensed Software by itself and Authorized Users in accordance with the provisions of the Agreement. 

2.3 The Customer’s general terms and conditions are hereby excluded, unless expressively agreed otherwise in writing. If, in the latter case a conflict occurs between the Terms and Conditions and the general terms and conditions applied by the Customer, then the Terms and Conditions shall prevail. 

2.4 Stipulations deviating from these Terms and Conditions must be made in writing and signed by (a) duly authorised person(s). 

A. EQUIPMENT 

3. COST, DELIVERY OF EQUIPMENT AND SHIPPING TERMS  

3.1 The cost of the Equipment will be stated in the Agreement. All prices are exclusive of VAT and other applicable taxes, duties, freight and similar or associated fees and costs.  

3.2 All shipping shall be Ex Works (Incoterms 2020), unless otherwise provided in the Agreement. 

3.3 A delivery time stated by OneThird shall only be of an indicative nature. OneThird will only be in default after having received a written notice of default specifying a reasonable time for delivery and after it has failed to comply with such specified time. 

4. USE OF EQUIPMENT  

4.1 The Customer shall not remove any labels, symbols, part numbers or serial numbers affixed to the Equipment. The customer will not make any alterations to the Equipment without prior written approval of OneThird. The Customer assumes full responsibility for the manner in which the Equipment is used and any decisions taken in connection with its use.  

4.2 Subject to any express limitation contained in the Agreement, the Customer is responsible for all costs (including repair and replacement) resulting from Improper Use and, if requested by OneThird, will compensate any loss, damage, cost or expense incurred by OneThird from such use. 

4.3 Customer is not responsible for network connectivity of the Equipment and/or from the Customer’s location to the Services. Customer should ensure that HTTPS connections (to TCP port 443 or any other port communicated by OneThird in writing) can be established to the OneThird servers. 

4.4 Except as expressly provided for in the Agreement, Customer shall not (i) copy, modify, or create derivative works of the Equipment; (ii) rent, lease, sublicense, transfer, or otherwise make available the Equipment; (iii) reverse engineer, disassemble, decompile the Equipment; or (iv) remove any proprietary notices from the Equipment and its documentation. 

5. RISK, OWNERSHIP AND RETURN OF EQUIPMENT IN CASE OF LOAN/LEASE 

5.1 In case of Loan/Lease of the Equipment, OneThird will at all times remain the owner of the Equipment. 

5.2 The risk of loss, theft, misappropriation or damage of the Equipment passes to the Customer immediately at the moment the Equipment is placed under the actual control of Customer or an auxiliary person of Customer. 

5.3 At the end of the Loan Period the Equipment shall be returned to OneThird in the same condition as delivered (allowing for normal wear and tear), unless alternative arrangements are agreed. 

5.4 The Customer shall return the Equipment on the date and time indicated in the Agreement or any other date agreed between parties. The Customer shall make sure that the Equipment is properly packaged and shipped using a carrier agreed upon by both parties. The Customer is responsible vis à vis OneThird for risk of loss, as well as shipping fees. 

5.5 The Equipment shall be returned to the agreed upon return location as specified in the Agreement or any other agreed location. A charge will be applied if returned to a different location or not returned at all. 

5.6 OneThird can repossess the Equipment anytime it is found being used to violate the terms of the Agreement, or appears to be abandoned or when it is discovered that a misrepresentation was made to obtain the Equipment. OneThird need not notify the Customer thereof. If the Equipment is repossessed, the Customer agrees to pay the actual costs incurred by OneThird to repossess and restore the Equipment. 

6. RISK, OWNERSHIP AND ACCEPTANCE OF EQUIPMENT IN CASE OF SALE 

6.1 In case of sale of the Equipment, OneThird will retain title to the Equipment delivered or to be delivered to the Customer until the Customer has fulfilled all its obligations towards OneThird under the Agreement, which obligations include, but are not limited to, payment of all amounts outstanding under the Agreement. If the Customer fails to properly fulfil any of his obligations vis-à-vis OneThird, or if OneThird has reasonable doubts that the Customer will fail to fulfil those obligations, OneThird will be authorized to take back the Equipment subject to retention of title without prejudice to any other rights or remedies OneThird may have, such as it right to claim further damages. 

6.2 Risk of loss or damage to the Equipment passes to the Customer when OneThird delivers the Equipment to the shipping carrier ("Delivery”). Unless otherwise agreed, OneThird will deliver the Equipment freight prepaid, provided that the Customer pays or reimburses OneThird for all applicable costs of carriage, freight, insurance (if applicable), taxes, duty and other related shipping charges. OneThird has the right to make partial deliveries. A delivery time stated by OneThird shall only be of an indicative nature and OneThird shall never be liable for any delays.  

6.3 The Customer’s acceptance of ordered Equipment is deemed to occur upon the Delivery of the Equipment to the shipping carrier. The Customer is responsible for giving prompt written notice of identified damage or non-conformity of the Equipment. The Customer must inspect the condition of the packaging and the Equipment upon receipt and indicate any evident damage to the carrier on the delivery note, have the carrier's agent sign the document and, within two (2) days of receipt of the damaged or non-conforming Equipment, send all documents by e-mail or fax to OneThird, together with the carrier's references. Concealed product damage claims must be made by the Customer to the carrier directly and the Customer must also provide OneThird with written notice and a copy of any such claim within 10 days of receipt of the affected Equipment. Likewise the Customer must notify OneThird within 10 days of receipt of incorrect Equipment. If the Customer retains the Equipment without giving notice within the designated notice period, the Customer will be deemed to have waived its right to reject the Equipment. 

7. REPAIR AND REPLACEMENT OF NON-CONFORMING EQUIPMENT  

7.1 In case of non-conforming Equipment (unless this non-conformity arises for Improper Use in which case the Customer is not entitled to any remedies) OneThird shall, as soon as reasonably practicable and at is sole discretion, either (i) repair or replace the Equipment or (ii) credit or refund the Fees, provided that, at request of OneThird, Customer shall return such Equipment to OneThird. If needed, replacement equipment will be issued for the duration of a repair. OneThird’s obligations under this Section 7 shall be Customer’s sole and exclusive remedy in respect of non-conforming Equipment.  

7.2 If and to the extent it is agreed in the Agreement that OneThird is responsible for servicing the Equipment, the associated costs will be for OneThird, except in case of Improper Use, in which case the associated cost will be for the account of the Customer. 

 B. LICENSED SOFTWARE AND SERVICES 

8. GRANT OF RIGHT TO USE THE SAAS SERVICES AND LICENSED SOFTWARE 

8.1 All SaaS Software is licensed and provided as a service and is not sold. 

8.2 OneThird provides the SaaS Services on Customer’s instructions. Customer may solely use the SaaS Services for its own organisation or company and only insofar as required for the use intended by OneThird under the Agreement. Customer may not allow third parties to make use of the SaaS Services without the prior written approval of OneThird. 

8.3 OneThird grants to Customer, at all times subject to the terms and conditions of the Agreement, a non-exclusive, non-transferable, limited license for Authorized Users to access and use the Licensed Software for the duration of the Agreement for Customer’s internal business purposes and according to the terms of the Agreement. 

8.4 Customer’s right to use the relevant Services shall cease at midnight of the last day of the term of the Agreement. 

8.5 Except as expressly provided for in the Agreement, Customer shall not (i) copy, modify, or create derivative works of the Licensed Software; (ii) rent, lease, sublicense, transfer, or otherwise make available the Licensed Software; (iii) reverse engineer, disassemble, decompile the Licensed Software; or (iv) remove any proprietary notices from the Licensed Software and its documentation. 

8.6 Without limitation on any other rights and remedies hereunder, OneThird may suspend Customer’s right to access the Services or use any portion or all of the Services immediately upon notice to Customer if it determines: 
8.6.1 that Customer’s (or an Authorized User’s) use of or access to the Services (i) poses a security risk to OneThird, the Services or any third party; or (ii) may adversely impact availability or performance of the Services or the systems or software of any other customer of OneThird; or (iii) is not fair, appropriate and responsible use; or (iv) may subject OneThird or any third party to any liability; or (v) may be fraudulent; or 
8.6.2 that Customer (or an Authorized User), is in breach of this Agreement (which includes lack of timely payment by the Customer) or any other agreement by which software being used on or in conjunction with the Services is licensed; 
In the event this is violated, OneThird reserves all rights to take whatever steps, including the termination of the Agreement. 

8.7 OneThird shall reinstate the suspended Services once the cause of the suspension has been remedied or ceased to exist. Where the cause of the suspension persists for more than thirty (30) days, OneThird may immediately terminate this Agreement. 

8.8 OneThird may continue to provide the SaaS Services using a new or modified version of the underlying software. OneThird is not obliged to maintain, modify or add particular features or functionalities of the SaaS Services specifically for the Customer. OneThird and its licensors own any and all intellectual property rights in the Equipment, the Licensed Software and the OneThird Data. Except as expressly stated herein, this Agreement does not grant Customer any rights to, or in, any intellectual property rights in respect of the Equipment, the Licensed Software and the OneThird Data or any associated documentation. 

8.9 OneThird is never obliged to provide Customer with a physical carrier or download of the underlying software. 

9. CUSTOMER DATA 

9.1 Customer shall own all rights, title and interest in and to all of the Customer Data. Customer shall at all times have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data and for ensuring that its use does not infringe the rights of any third parties. 

9.2 Customer hereby grants to OneThird subject to the terms and conditions of this Agreement a license to use the Customer Data for the purpose of OneThird performing its obligations under this Agreement.  

9.3 Customer hereby also grants to OneThird a perpetual, unlimited license to use Customer Data and Usage Data that is anonymized and aggregated, such that it is not possible to identify Customer or Authorized Users or any of its or their respective behaviour. 

9.4 Customer shall provide OneThird with access to such information, including Customer Data, as may be required to perform OneThird obligations under the Services. 

9.5 Subject to the personal data required by OneThird for processing activities identified in Section 16.1 below, Customer acknowledges that the Equipment and Services are not meant to process personal data and Customer shall ensure that the Customer Data does not include personal data. 

C. EQUIPMENT AND SERVICES 

10. SET UP/INSTALLATION OF EQUIPMENT AND LICENSED SOFTWARE 

10.1 Any obligation of OneThird regarding the installation and setup of Equipment and Licensed Software shall be documented in the Agreement.  

10.2 Except as specifically agreed to in writing, OneThird is not responsible for and will not be liable for, the quality of any installation or setup services or any claim in any way relating to or resulting from such services if these have been carried out be Customer itself or by a third party commissioned by Customer. 

11. TECHNICAL ASSISTANCE AND SUPPORT 

11.1 OneThird’s support conditions shall apply to the applicable SaaS Services. 

11.2 If technical assistance or advice is offered or given to Customer, such assistance or advice is given in accordance with the terms and conditions of the Agreement or as otherwise agreed between parties in writing. OneThird shall not be held liable for the content or Customer’s use of such technical assistance or advice nor shall any statement made by any of OneThird’s representatives in connection with the Equipment, Licensed Software or Services constitute a representation or warranty, express or implied. 

12. FEES & PAYMENT TERMS 

12.1 Customer shall pay OneThird the Fees as agreed in the Agreement. Unless otherwise mentioned in the Agreement the prices agreed between the Parties are always excluding VAT. 

12.2 All payments under the Agreement must be made in euros, unless otherwise specified in the Agreement. 

12.3 All payments must be made without any discount whatsoever. Customer waives the right to put up the defence of set-off or to defer payment in respect of OneThird. 

12.4 In the event that Customer fails to pay any amount within the applicable payment period, the Customer shall be immediately in default without notice of default being required to be given and Customer shall pay statutory interest on the overdue sum from the due date until payment of the overdue sum. During this period, OneThird also has the right to immediately suspend Services under the Agreement and deny Customer access to the Licensed Software.  

12.5 If OneThird has given written (including by email) notice of default to the Customer and the Customer has not paid the overdue sum within 14 days of such notice of default, all the amounts owed by Customer to OneThird will become immediately due and payable in full by operation of law. In such case, all judicial and extrajudicial costs incurred at that time by OneThird in order to collect the amounts due to OneThird will be payable by Customer.  

12.6 The Customer is liable for any costs incurred by OneThird if Customer changes or cancels any Agreement, and for all costs of collection of past due amounts (including attorney’s fees). 

13. WARRANTIES 

13.1 OneThird warrants that the Equipment and Licensed Software will operate in all material respects in accordance with the Agreement (“Warranty”). Except for the Warranty, OneThird makes no representation, and gives no warranty or undertaking, that the operation, availability or Resultant Data of the Equipment and/or Licensed Software will be uninterrupted or error-free. In case of sale of the Equipment this Warranty is limited to a period of twelve (12) months from the date of Delivery of the Equipment.  

13.2 The Warranty shall not apply to the extent any non-conformance is caused by the Customer systems, Customer’s (including any Authorized User’s) breach of this Agreement, Improper Use or use of the Services contrary to OneThird’s instructions or modification or alteration of the Services by any party other than OneThird. 

13.3 If OneThird fails to comply with the Warranty, OneThird shall, as soon as reasonably practicable and at is sole discretion, either (i) repair or replace the Equipment or correct the deficient Service; or (ii) credit or refund the Fees, provided that, if OneThird so requests, Customer shall return such Equipment to OneThird. OneThird’s obligations under this Section 13.3 shall be Customer’s sole and exclusive remedy in respect of a breach of Section 13. 

14. NATURE OF THE AGREEMENT 

14.1 The nature of the Agreement is a commitment of effort and not a commitment of result, unless otherwise agreed by the Parties. 

14.2 Unless otherwise agreed by the Parties, OneThird does not warrant the suitability for a specific purpose or function, among which cost savings or improvement of company business results. 

14.3 Under no circumstances does OneThird warrant the uninterrupted availability of telecommunications services and if applicable, the uninterrupted access to their Service either via the internet or the networks of OneThird or any other third party. 

14.4 OneThird does not warrant that the Service will be uninterrupted, timely, error-free or virus-free and any other information or advice obtained by Customer from OneThird shall not create a warranty if it is not expressly stated in these Terms and Conditions. 

15. EXPORT CONTROL 

15.1 The Customer may not use or otherwise export or re-export the Equipment or Licensed Software except as authorized by the laws of the jurisdiction in which they were obtained. In particular, but without limitation, the Equipment and Licensed Software may not be exported or re-exported in violation of export laws and (international) sanction laws.  

15.2 The Customer represents that it is not listed on any sanctions list and that it is not situated in any country where the provision of Equipment or Licensed Software to the Customer would violate applicable law.  

15.3 The Customer agrees not to use or enable use of Equipment or Licensed Software for any purposes prohibited by applicable law or export or re-export any Equipment or Licensed Software knowing or suspecting that it will be used in the design, development, production or use of chemical, biological, nuclear or ballistic weapons.  

15.4 Laws and regulations change frequently. It is the Customer’s responsibility to know the law pertaining to export and import procedures in the country of destination of the Equipment and Licensed Software, and the applicable sanctions law. The Customer shall defend, indemnify and hold OneThird harmless against any liability (including attorneys’ fees) arising out of Customer’s failure to comply with the terms of this Section. 

16. INTELLECTUAL PROPERTY 

16.1 The Customer agrees that OneThird owns all right, title and interest to all intellectual property and other proprietary rights to documents and materials, calculations, drawings, models, plans, sets of tools, technology, software, designs, engineering details, schematics and similar data relating to or incorporated in the Equipment, Licensed Software, OneThird Data and any accompanying documentation or information derived from the foregoing. The Customer shall take reasonable precautions to prevent unauthorized access and use of the Licensed Software and documentation by third parties. OneThird reserves all rights in the Equipment and Licensed Software not specifically granted to the Customer under these Terms and Conditions.  

16.2 OneThird agrees that the Customer owns all right, title and interest to the Customer Data, subject to the licenses granted under these Terms and Conditions. 

17. DATA PROTECTION 

17.1 OneThird processes the personal data of Authorized Users (being username, password, e-mail address and telephone number) in order to establish and verify accounts, facilitate access to the Licensed Software, and provide customer and technical support in relation to the Services. 

17.2 All personal data under Section 17.1 will be processed by OneThird as sole data controller pursuant to the applicable data protection legislation, including the GDPR. 

18. CONFIDENTIALITY 

18.1 The Recipient shall protect all Confidential Information which the Discloser provides to it (whether orally, in writing or in any other form) using the same standards as the Recipient applies to its own comparable confidential information but in no event less than reasonable measures. The Recipient may only use Confidential Information for the purposes of this Agreement. The Recipient may provide its and its Affiliates’ employees, professional advisors, agents and consultants (all “Permitted Users”) with access to Confidential Information on a “need to know” basis only. The Recipient shall ensure that each of its Permitted Users are bound to hold all Confidential Information in confidence to the standard required under this Agreement. 

18.2 The Recipient’s confidentiality obligations will not apply to information: (i) already known to it at the time of disclosure without restrictions on disclosure; (ii) in the public domain or publicly available other than as a result of a breach of this Agreement; (iii) provided to it by a third party who is under no such obligation of confidentiality; or (iv) independently developed by it without using the Discloser’s Confidential Information.  

18.3 If any court, regulatory authority or legal process requires the Recipient to disclose information covered by this confidentiality obligation, then the Recipient may make any such disclosure, provided that the Recipient will, if permitted by law, advise the Discloser promptly of any such requirement and cooperate, at the Discloser’s expense, in responding to it. 

18.4 Upon termination of this Agreement, each party shall return and make no further use of any Confidential Information belonging to the other party (except both parties shall have the right to retain information and documents in accordance with applicable law, their respective document retention schedules or pursuant to advice of their attorneys). OneThird may destroy any of the Customer Data in its possession at any point thirty (30) days or more after termination of this Agreement. 

19. INDEMNITY 

19.1 Customer indemnity. Subject to the provisions of Section 19.3 below, Customer shall defend, indemnify and hold harmless OneThird and its Affiliates in respect of all damages and reasonable costs (including reasonable legal fees) and expenses arising directly from a third party claim against OneThird involving claims that Customer Data, Customer’s use of Customer Data, or OneThird’s use of Customer Data in the provision of the Services infringes privacy rights of, or has otherwise harmed, a third party. In case of Loan/Lease of the Equipment, Customer shall further indemnify OneThird for any loss of or damage to the Equipment resulting from Improper Use of the Equipment. 

19.2 OneThird indemnity. Subject to the provisions of Section 19.3 below, OneThird shall defend, indemnify and hold Customer harmless in respect of all damages and reasonable costs (including reasonable legal fees) and expenses arising directly from an IPR Claim which is valid and enforceable in the legal jurisdiction in which the IPR Claim is commenced.  

19.3 If any IPR Claim is made, or in OneThird’s reasonable opinion is likely to be made, against Customer, OneThird may at its sole option and expense:  
A. obtain for Customer the right to continue using the Services in the manner permitted under this Agreement; or 
B. modify or replace the infringing part of the Services so as to avoid the infringement or alleged infringement, but in such a way that does not materially adversely affect the functionality of the Services; or 
C. terminate the relevant Agreement and refund Fees paid in advance by Customer in respect of any period following such termination. 

19.4 Sections 19.1 and 19.2 shall not apply to any IPR Claim which arises from: (i) any changes, modifications, updates, add-ons or enhancements made to or available through the Services other than those developed by OneThird or its Affiliates; (ii) combination or use of the Services with any other software, program, hardware or device not developed by OneThird or which is combined in a manner other than that specified by OneThird, if such infringement would not have arisen but for such combination or use; or (iii) compliance by OneThird with designs, plans, instructions or specifications furnished by Customer. 

19.5 The provisions of this Section shall be Customer’s sole and exclusive remedy in connection with an IPR Claim. 

20. LIMITATION OF LIABILITY 

20.1 Subject only to Section 20.3 below, each party’s aggregate liability arising out of or in connection with this Agreement, shall not exceed the amounts paid by Customer to OneThird during the twelve (12) months prior to the event giving rise to the claim, with the exclusion of loss of or damage to the Equipment. 

20.2 Subject only to Section 20.3 below, to the maximum extent permitted by applicable law, neither party shall be liable for any indirect, consequential, incidental, special, punitive or exemplary loss or damages or for any loss or damage to data, arising out of or in connection with this Agreement, even if apprised of the possibility or likelihood of such damages occurring. 

20.3 Exceptions. Nothing in this Agreement excludes or limits the liability of either party for: 
A. death or personal injury caused by negligence; 
B. fraud or fraudulent misrepresentation; or 
C. damages which cannot be excluded or limited by applicable law.  

20.4 Customer Instructions. Notwithstanding anything to the contrary in this Agreement, OneThird shall have no liability for any actions taken by OneThird at Customer’s direction, or any errors or omissions in any information or data provided by Customer. 

21. TERMINATION 

21.1 OneThird reserves the right to terminate (opzeggen) the Agreement with immediate effect or to  suspend its obligations under the Agreement for an indefinite period and to refuse additional Services, if one of the following events (not-limitative) occurs: (i) the Customer defaults in performing its obligations under an Agreement, or (ii) the Customer ceases business operations or enters into any bankruptcy, insolvency or receivership , or (iii) the Customer assigns its assets for the benefit of creditors. 

21.2 Parties enter into the Agreement for the term specified therein.  

22. GENERAL PROVISIONS 

22.1 Force majeure. OneThird shall not be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure results from events, circumstances or causes beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of OneThird or any other party), failure of a utility service or transport or telecommunications network or the internet, act of God, war, riot, civil commotion, pandemic, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers, sub-contractors or third party service providers. In such circumstances OneThird shall be entitled to a reasonable extension of the time for performing such obligations, provided that if the period of delay or non-performance continues for three (3) months, either party may terminate this Agreement or any affected Orders by giving thirty (30) days’ written notice to the other party.  

22.2 Waiver. No failure, delay or omission by either party in exercising any right provided by law or under this Agreement shall operate as a waiver of that right nor shall it preclude or restrict any future exercise of that or any other right. A waiver of any right under this Agreement is only effective if it is in writing and signed by the waiving party and it applies only in the instance and to the circumstances for which it is given. 

22.3 Severability. 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. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were modified, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties. 

22.4 Assignment. Either party may at any time transfer (by way of assignment or novation) this Agreement to any Affiliate upon written notification to the other party (and the other party hereby consents to any such transfer). 

23. APPLICABLE LAW AND COMPETENT COURT 

23.1 Unless otherwise explicitly agreed upon in writing, all Agreements and all agreements ensuing therefrom are exclusively governed by the laws of the Netherlands.  

23.2 In the event of a dispute arising out of or relating to the Agreement, the Parties shall endeavor to reach a resolution of the dispute satisfactory to both Parties. Either Party may commence such process by requesting a meeting with the other Party, which may take place in person, or remotely. Each Party shall nominate a senior management representative who shall meet to try to resolve the dispute. If the dispute is not resolved within 20 business days of such meeting taking place (or if, for any reason, such meeting does not take place within 20 business days of either Party requesting the meeting (or such period as may be agreed between the Parties)), then the dispute will be settled by the Amsterdam District Court following proceedings in English before the Chamber for International Commercial Matters (“Netherlands Commercial Court”). The Rules of Procedure of the Netherlands Commercial Court shall apply. However, OneThird shall have the right to bring a dispute before the court within whose jurisdiction Customer has its domicile.  

23.3 Parties waive the applicability of the United Nations Convention on Contracts for the International Sale of Goods (CISG).