Terms and Conditions

Schedule 1
FiberRing standard terms and conditions (Version 1.1)

1. DEFINITIONS

“Additional Terms” means the document(s) which describe the Products and Services and any relevant service levels, which form part of the Agreement.
“Agreement” means the Master Agreement for the Provision of Telecommunications and Related Ancillary Services between the Parties, which includes the Additional Terms, Purchase Orders, Change Orders and these Terms & Conditions.
“Associated Company” in relation to a Party means any subsidiary or holding company or any subsidiary of any such holding company.
“CET” means Central European Time
“Change Order” means a variation to an existing Purchase Order which has been signed and accepted by FiberRing.
“Charges” means the charges set out on the Purchase Order which are subject to an annual review after the Initial Term.
“Customer” means the person, firm, company or corporation or other entity, as identified in the Master Agreement who purchases Products and/or Services.
"EURIBOR" means in relation to any amount owing by the Customer on which interest for a given period is to accrue, the arithmetic mean (rounded upwards to four decimal places) of the rates being offered to prime banks in the European interbank market for deposits in Euro of an
equivalent amount at or about 11.00 a.m. CET on the date on which EURIBOR is to be determined.
"European Producer Price Index" means the price index of producers in the European Union published from time to time and as applicable on the date of determination pursuant to the terms of this Agreement based on the selling prices of all products and services sold on the domestic
market of member states of the European Union.
“Initial Term” means the Initial Term of a Purchase Order, as defined in Clause 2.1.
“Intellectual Property Rights” means any patent, copyright, registered or unregistered design right and any application in respect of any of the foregoing.
“FiberRing” means FiberRing BV (company number 30188570, Amsterdam) and any Associated Company authorised to provide Products and/or Services to the Customer.
“FiberRing Network” means the communication network owned and/or provided by FiberRing for the provision of Services.
“FiberRing Terms & Conditions” means these terms and conditions.
“Licensed Software” means computer software in object code format made available to Customer by FiberRing for the use of any Products and/or Services.
“Order Form” means FiberRing’s Purchase Order Form or Change Order Form which forms part of the Agreement.
“Parties” means FiberRing and Customer, and “Party” shall mean either FiberRing or Customer, as the context requires.
“Planned Outage” means any routine maintenance or upgrade work, which may affect the availability of Service to the Customer’s site. FiberRing will endeavour to give the Customer at least ten (10) days prior notice of any Planned Outage which will affect the availability of Service
to the Customer’s site and will endeavour to perform such works during the hours of 23.00 Saturday and 06:00 Sunday CET.
“Products” means the equipment or materials sold, licensed or leased to the Customer by FiberRing.
“Purchase Order” means an order on the Order Form for specific Products and/or Services by Customer, which has been signed and accepted by FiberRing.
“Services” means any telecommunications or related services provided to Customer by FiberRing.
“Service Commencement Date” means the date from which the Service is provided to
customer.
"Taxes" means any tax, duty or other charges of whatever nature (but excluding any tax, duty or other charged levied on income accruing to FiberRing hereunder) imposed by any taxing or government authority including, without limitation VAT.
“Term” means the period from the date of the Purchase Order until terminated in accordance with Clause 2 of these terms and conditions.
“VAT” means Value Added Tax as set out in the European Union (“EU”) Sixth Directive (Directive 77/388) and any subsequent amendments and includes any local implementation of the tax within the individual EU member states or any similar form of indirect/sales tax outside the EU.
“Withholding Tax” means any amount on account of tax on sources of income which the payer is obliged to deduct from payments due to the recipient and account for to any tax authority.
"Working Day" means any day from Monday to Friday (inclusive) which is not Christmas Day, Good Friday or other statutory or national holiday in the jurisdiction in which the relevant notice is to be given or where the relevant activity is to be performed.
"Working Hours" shall be 09:00 to 17:00 CET each Working Day.

2. TERM AND TERMINATION

2.1. A Purchase Order shall have effect from the date the Purchase Order is signed and accepted by FiberRing and unless terminated in accordance with the provisions below, shall continue for twelve (12) months from such date unless amended in the Purchase Order (“Initial Term”). At the expiration of the Initial Term, the Purchase Order shall automatically be renewed for a further period of twelve (12) months unless either Party gives not less than sixty (60) days written notice to expire on the end of the Initial Term or at the end of the next following anniversary of the date of the Purchase Order.

2.2. If Customer fails to make any payment due under the Purchase Order in accordance with the terms and conditions set out in this Agreement or is otherwise in material breach of this Agreement and, if capable of remedy, such failure or breach is not remedied within thirty (30) days following written notice by FiberRing to Customer, FiberRing may suspend provision of any or all of the Services under any relevant Purchase Order until such failure or breach is remedied or, at FiberRing’s sole option, terminate this Agreement with immediate effect. Where such breach or failure is not capable of remedy, FiberRing may at its option terminate this Agreement or any relevant Purchase Order by written notice with immediate effect.

2.3. A Party may terminate this Agreement on written notice with immediate effect if the other Party ceases to trade (either in whole, or as to any part involved in the performance of this Agreement), or becomes insolvent, has a receiver, administrative receiver, administrator or manager appointed of the whole or any part of its assets or business, makes any composition or arrangement with its creditors, takes or suffers any similar action in consequence of debt or any order or resolution is made for its dissolution or liquidation (other than for the purpose of solvent amalgamation or reconstruction) under the laws applicable to that Party.

2.4. Customer may terminate a Purchase Order with immediate effect if FiberRing commits a material breach of this Agreement and, if capable of remedy, such breach is not remedied within thirty (30) days following a written notice by Customer to FiberRing. Where such breach is not capable of remedy, Customer may terminate a Purchase Order by written notice with immediate effect.

2.5. In the event that a Purchase Order is terminated (other than for FiberRing’s breach), then if termination occurs prior to the Service Commencement Date for any Service, Customer shall reimburse FiberRing for all reasonably incurred costs for the implementation of such Service; or (ii) if the termination occurs after the Service Commencement Date for that Service, Customer shall pay all amounts in respect to the Services provided prior to the date of termination and agrees to pay the minimum commitment that would have been payable by the Customer to the end of the Initial Term.

3. PAYMENT AND INVOICING

3.1. Customer will pay the charges set out in the Purchase Order for the provision of Products and/or Services.

3.2. FiberRing will invoice all Charges at the frequency set out in the Purchase Order and the Customer shall pay all amounts when due in accordance with the invoice or otherwise within thirty (30) days of the date of the invoice unless stated otherwise in the Purchase Order.

3.3. On each anniversary of the Initial Term, FiberRing will review the Charges and may increase any Charge in line with the European 15 HICP (EU-15) index for the previous twelve (12) months.

3.4. All amounts in respect of Charges shall be paid in Euros or as specified on the Purchase Order and shall be paid free of any deduction or withholding (save to the extent provided for in Clause 4.2 below, or required by applicable law). For the avoidance of doubt, such payments shall be free of any bank charges. To the extent that any deduction or withholding is required by applicable law, Customer shall increase the amount of such payment to ensure that FiberRing
receives the amount it would have received had no deduction or withholding been required.

3.5. In the event that Customer in good faith disputes any portion of the charges contained in an invoice, Customer will pay the undisputed portion of the invoice on the due date in full and submit a documented claim for the disputed amount. As a minimum such documented claim shall set out the amount in dispute, the reason for such dispute and provide such evidence as shall be reasonably necessary to support the dispute. The Parties shall negotiate in good faith in an attempt to resolve the dispute, provided that if the dispute cannot be resolved within sixty (60) days of the date of the invoice, either Party may institute legal proceedings. If Customer does not submit a documented claim prior to the due date for payment of the invoice, Customer waives all rights to dispute the invoice.

3.6. In the event that any undisputed amount remains unpaid for thirty (30) days after the due date for payment, FiberRing shall have the right, at its option to suspend the provision of Services until Customer pays all amounts due. All or part of any invoice shall cease to be disputed when the disputed amount is agreed between the Parties or is settled in litigation.

3.7. FiberRing may levy an additional service charge on any amount invoiced and not paid at the rate of five percent (5%) per annum above the three (3) month European Interbank Offered Rate
(“EURIBOR”) for Euros quoted on Telerate Page 248/249 (whether before or after judgement) from (but not including) from the due date for payment of such invoice, until the date on which such invoice is paid in full. Such charge shall accrue day by day, shall be compounded and payable on demand.

3.8. As a condition of FiberRing’s acceptance of any Purchase Order or the continuation of delivery of any Products and/or Services, FiberRing may require Customer to provide a deposit or bank guarantee in an amount determined by FiberRing from time to time in its sole discretion. Such deposit or bank guarantee shall be held by FiberRing as security for the payment of Charges and any other amounts due under this Agreement. On the termination of this Agreement, FiberRing may apply such deposit or bank guarantee to any amounts owed by the Customer to FiberRing with any remaining credit balance being refunded to Customer.

3.9. FiberRing may at any time, by notice in writing to Customer, limit Customer’s credit and provide that Customer’s liability to FiberRing for Products and/or Services and will not exceed an amount to be determined by FiberRing. Any Products and/or Services required by Customer in excess of any such credit limit will require Customer to deposit with FiberRing an amount equal to or greater than the amount by which Customer will exceed the credit limit.

4. TAXES

4.1. All fees for Services and any other fees or charges under this Agreement are exclusive of Value Added Tax (VAT) or any similar indirect or sales taxes that may be applicable. If any VAT or similar sales tax is chargeable by FiberRing, this will be added to the agreed price (by way of separate invoice, if those charges have already been invoiced) and shall be paid in addition by the Customer.

4.2. If Withholding Tax applies to any payments for supplies made under this Agreement, the Customer may withhold that element that is required under the applicable legislation but must pay an additional amount so as to ensure that the amount net of any Withholding Tax actually received by FiberRing equates to the amounts stipulated in this Agreement and must notify FiberRing prior to payment that Withholding Tax is required to be paid. The Customer and FiberRing undertake to co-operate, where possible, to minimise the amount of Withholding Tax due by making advance clearance applications under the relevant double taxation treaties (where applicable) to the relevant tax authority to reduce the rate of Withholding Tax or exempt entirely this amount if applicable. In any event, the Customer undertakes to account for any tax withheld to the tax authorities on a timely basis.

4.3. Neither Party shall be liable for the other party’s taxes based on income (including gains from the disposal of capital).

4.4. Any other taxes or levies arising from the use of the capacity (including local profits taxes) shall be the liability of the Customer and FiberRing reserves the right to recharge these to the Customer.

4.5. Any stamp duties or registration taxes or other taxes relating to documentation of the individual transactions entered into under this contract shall be borne by the Customer.

5. COMPLIANCE WITH LAWS

5.1. FiberRing shall obtain all necessary licences, approvals, permits and consents required by any applicable governmental or regulatory authority or body necessary for FiberRing to provide the Products and/or Services to Customer.

5.2. Customer shall obtain all necessary licences, approvals, permits and consents required by any applicable governmental or regulatory authority or body necessary for Customer to use the Products and/or Services. Customer shall use the Products and/or Services in accordance with and subject to all provisions of applicable law.

5.3. Customer shall at all times use the Services in accordance with FiberRing’s then current Acceptable Use Policy, as amended from time to time, and which is available on FiberRing’s web-site ( www.fiberring.com ).

5.4. Each Party will comply with all relevant laws (including, but not limited to, those relating to data protection) in providing or using (as appropriate) of the Products and/or Services.

6. SOFTWARE

6.1. If and to the extent that the Customer requires the use of Licensed Software in order to use the Products and/or Services, the Customer will be provided with a non-exclusive non-transferable licence to use such Licensed Software solely for its internal purposes and solely to
the extent required to use the Products and/or Services. To the extent such Licensed Software is sourced from a third party provided, such licence shall be subject to the terms of the applicable software licence embedded in the relevant Products.

6.2. Customer will not, and shall use all reasonable endeavours to ensure that others do not:
6.2.1. obtain or claim any ownership in any Licensed Software (or in any derivation thereto or improvement thereof);
6.2.2. copy the Licensed Software except as agreed in writing by FiberRing and in accordance with the terms of the applicable software licence;
6.2.3. save as permitted by law, reverse engineer, decompile or disassemble Licensed Software;
6.2.4. sell, lease, licence or sublicence the Licensed Software;
6.2.5. create, write or develop and derivative software or any other software based on the Licensed Software;
6.2.6. take any action prohibited by the owner of the Licensed Software.

7. NATURE OF RIGHTS

All rights granted hereby and obligations entered into under this Agreement are purely contractual. Nothing in this Agreement shall grant to the Customer any ownership, proprietary or possessory rights in any of the subject-matter of the Agreement.

8. NO LICENCE

Save to the extent expressly set out in this Agreement, nothing in this Agreement shall vest in or confer on the Customer any patent or any other right or licence in the intellectual property arising from or relating to any apparatus, system or method used by FiberRing or by the Customer in
connection with the use of the Products and/or Services.

9. ASSIGNMENT

9.1. Except as provided below neither FiberRing nor the Customer may at any time assign, sub-contract, sub-licence or otherwise dispose of all or any of its rights or obligations under this Agreement.

9.2. Either Party may assign any of its rights and obligations under this Agreement to any of its Associated Companies (or its or their successors, through merger or acquisition of substantially all of their or its assets), with the prior written consent of the other Party (not to be unreasonably withheld or delayed).

9.3. FiberRing may sub-contract any or all of its obligations under this Agreement to a third party, provided that FiberRing shall remain liable to the Customer for the performance of those obligations.

10. LIABILITY AND INDEMNITY

10.1. EXCEPT AS OTHERWISE SET FORTH IN THIS AGREEMENT, INCLUDING THE SCHEDULES, FIBERRING GIVES NO WARRANTIES, NOR MAKES ANY REPRESENTATIONS OR OTHER AGREEMENTS, EXPRESS OR IMPLIED WITH RESPECT TO THE PRODUCTS AND/OR SERVICES AND, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ALL IMPLIED WARRANTIES OF SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE ARE HEREBY EXPRESSLY EXCLUDED. FIBERRING SHALL USE ALL REASONABLE EFFORTS TO PROVIDE AND MAINTAIN THE SERVICE TO CUSTOMER AS
SPECIFIED HEREIN. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT OR PUNITIVE DAMAGES, LOSS OF REVENUE OR PROFIT, LOSS OF INCOME, LOSS OF DATA, LOSS OF USE OF ANY PROPERTY, COST OF SUBSTITUTE PERFORMANCE, EQUIPMENT OR SERVICE AND DOWNTIME COSTS, IN EACH CASE HOWSOEVER ARISING, AND WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE, AND WHETHER OR NOT REASONABLY FORESEEABLE AT THE DATE OF THE PURCHASE ORDER, PROVIDED THAT NOTHING IN THIS CLAUSE 10 SHALL EXCLUDE OR LIMIT THE LIABILITY OF CUSTOMER TO: a. PAY THE CHARGES; OR b. REPAIR (OR IF REPAIR IS NOT PRACTICABLE, REPLACE) ANY TANGIBLE PHYSICAL PROPERTY INTENTIONALLY OR NEGLIGENTLY DAMAGED BY THE CUSTOMER OR ITS EMPLOYEES WHILST ON
FIBERRING’S PREMISES

10.2. EXCEPT WHERE EXPLICITLY STATED OTHERWISE IN THE APPLICABLE ADDITIONAL TERMS FOR A PARTICULAR SERVICE, AND SUBJECT TO CLAUSE 10.1 ABOVE, THE LIABILITY OF EACH PARTY FOR ANY CLAIM, LOSS, EXPENSE, OR DAMAGE UNDER THIS AGREEMENT SHALL BE LIMITED TO (i) TWO HUNDRED AND FIFTY THOUSAND EUROS (€250,000.00) IN RESPECT OF ANY ONE EVENT OR SERIES OF EVENTS AND (ii) A TOTAL OF ONE MILLION EUROS (€1,000,000.00) IN ANY CONSECUTIVE TWELVE (12) MONTH PERIOD. NOTHING IN THIS AGREEMENT SHALL EXCLUDE OR LIMIT EITHER PARTY’S LIABILITY: a. FOR FRAUD OR FOR DEATH OR PERSONAL INJURY CAUSED BY ITS NEGLIGENCE; OR b. IN RELATION TO THE INTELLECTUAL PROPERTY
INDEMNITY SET OUT IN CLAUSE 11 BELOW.

10.3. Subject to the above, each Party shall indemnify, defend, protect and hold the other harmless from and against all liabilities, claims, damages, losses, costs, expenses and judgements (including reasonable legal fees and costs) and causes of action arising out or
in connection with this Agreement for personal injury or damage to tangible property caused by the negligence or wilful misconduct of that Party, its employees, agents or licensees.

10.4. Customer shall indemnify and hold harmless FiberRing against all actions, losses, costs, damages, awards, expenses, fees (including legal fees incurred and/or awarded against FiberRing) proceedings, claims or demands in any way connected with this Agreement brought or threatened against FiberRing by a third party arising out of the use by Customer of the Products and/or Services, or any wilful or negligent act or omission of Customer. Customer shall also provide, at Customer’s sole expense, FiberRing with full authority, information and assistance as is reasonably necessary for the defence, compromise or settlement of such claim.

11. INTELLECTUAL PROPERTY INDEMNITY

11.1. Each Party will defend and hold the other Party harmless against any claim, suit or proceeding brought against that Party so far as it is based on any actual or threatened infringement of any Intellectual Property Rights by it, provided that it is given prompt notice in writing of any such claim and is given full authority and such information and assistance as is reasonably necessary for the defence of such claim.

11.2. FiberRing shall have no liability in respect of any alleged infringement which is based on the sale or use of any Products in combination with any other products not supplied by FiberRing (unless expressly agreed by FiberRing).

11.3. FiberRing shall have no liability in respect of any unauthorized modifications, changes or alterations by the Customer or its agents of the Products and/or Services supplied by FiberRing, other than in respect of modifications, changes or alterations carried out by FiberRing.

12. FORCE MAJEURE

A Party shall not be deemed in default of any of its obligations under this Agreement if, and to the extent that, performance of such obligation is prevented or delayed by acts of God or public enemy, civil war, insurrection or riot, fire, flood, explosion, earthquake, labour dispute causing cessation slowdown or interruption of work, national emergency, act or omission of any governing authority or agency thereof, inability after reasonable endeavours to procure equipment, data or materials from suppliers, or any other circumstances beyond its reasonable control (“Event of Force Majeure”), provided that such Event of Force Majeure is not caused by the negligence of that Party, and that Party has notified the other in writing of the Event of Force Majeure. The Party notifying an Event of Force Majeure shall use all reasonable endeavours to avoid or
minimise the effects of an Event of Force Majeure. Upon the occurrence of an Event of Force Majeure, the time for performance shall be extended for the period of delay or inability to perform due to such occurrence. Provided that if an Event of Force Majeure continues for a continuous
period of more than one month the other Party shall be entitled to terminate this Agreement.

13. SEVERABILITY

If any of the provisions of this Agreement is held by an appropriate arbitral, judicial or regulatory authority to be void, invalid or unenforceable, such provision shall, to the extent permitted by applicable law, be deemed to be deleted from this Agreement to the intent that the remaining provisions shall continue in full force and effect.

14. WAIVER

The waiver by either Party, in whole or in part, of a breach of or a default under any of the provisions of this Agreement, or the failure, in whole or in part, of the other Party, upon one or more occasions, to enforce any of the provisions of this Agreement or to exercise any right or privilege hereunder shall not thereafter be construed as a waiver of any subsequent breach or default of a similar nature or as a waiver or any such provision, right of privilege hereunder.

15. NOTICES

Each notice, demand, certification or other communication given or made under this Agreement shall be in writing and shall be delivered by hand or sent by registered mail or facsimile transmission to the address of the Party as shown in Schedule 3 or such other address as each Party may notify in writing to the other. Any such notice, demand or other communication shall be deemed to have been received, if delivered by hand, at the time of delivery or, if posted, at the expiration of five (5) Working Days after the notice has been posted, postage prepaid, or, if
sent by facsimile, at the date confirmation of successful transmission is received.

16. AMENDMENTS

This Agreement and any of its provisions may be altered or added to only by agreement in writing signed by a duly authorised person on behalf of each of the Parties.

17. CONFIDENTIALITY

17.1. Each Party shall keep confidential all information (including the terms of this Agreement) and documentation, including (without limitation) information concerning the business or trade secrets, processes, know-how or methods used by the other Party in carrying on business
("Confidential Information"), obtained from the other Party pursuant to or in connection with this Agreement. In order to protect the other Party’s rights and interests hereunder, a Party may only disclose Confidential Information regarding the other Party to those of its and its Associated Companies personnel who require such Confidential Information for the purpose of this Agreement. Each Party shall take the same care to avoid disclosing Confidential Information of the other Party to any third party as the receiving Party takes with similar information of its own which it does not wish so to disclose.

17.2. Each Party agrees that it shall not use any Confidential Information regarding the other Party for any purpose other than the performance of its respective obligations or enforcing its rights under this Agreement or as otherwise permitted hereunder, nor copy or disclose any such Confidential Information to any third party without the written consent of the other Party´s authorised representative. However, both Parties shall be permitted to disclose this Agreement to their or their Associated Companies professional advisers, agents or representatives (including those who are assisting it in connection with this Agreement) subject to appropriate confidentiality obligations.

17.3. The provisions of this Clause shall not apply to Confidential Information which the recipient can show to the disclosing Party´s reasonable satisfaction: a. was known to the recipient (without obligation to keep the same confidential) at the date of its disclosure; b. is after the date of disclosure lawfully acquired by the recipient in good faith from an independent third Party who is
not subject to any obligation of confidentiality in respect of such Confidential Information; c. was in its entirety at the time of disclosure or has become public knowledge otherwise than by reason of the recipient´s neglect or breach of the restrictions set out in this or any other agreement;
d. is independently developed by or on behalf of the recipient without access to any or all of the Confidential Information; and e. is required by process of law, judicial action, recognized stock exchange, governmental department or agency orother regulatory authority to be disclosed in which event the recipient shall take all reasonable steps to consult and take into account the reasonable requirements of the other Party in relation to such disclosure.

18. PRESS ANNOUNCEMENTS

No press or public announcements, circulars or communications relating to this Agreement or the subject matter of it shall be made or sent by either of the Parties without the prior written approval of the other Party such approval not to be unreasonably withheld or delayed.

19. RIGHTS OF THIRD PARTIES

The Parties do not intend any term of this Agreement to be enforceable pursuant to The Rights of Third Parties Act.

20. GENERAL

20.1. FiberRing shall have no liability or responsibility for the contents of any communications transmitted via the Products and/or Services or for any information or content on the Internet, and Customer will hold FiberRing harmless from any and all claims related to such content or
information as a result of the provision or use of the Products and/or Services.

20.2. Save as expressly agreed in writing by FiberRing, FiberRing does not undertake to transmit messages but offers the use of its Products and/or Services. FiberRing does not warrant that any Service shall be continuous or fault free.

20.3. FiberRing shall have no liability for any transaction, which the Customer may enter into with a third party using the Products and/or Services.

21. ENTIRE AGREEMENT
This Agreement contains all the terms agreed among the Parties regarding its subject matter and supersedes any prior agreement, understanding or arrangement between the parties, whether oral or in writing. No representation, undertaking or promise shall be taken to have been given or be implied from anything said or written in negotiations among the Parties prior to this Agreement except as expressly stated in this Agreement.

22. GOVERNING LAW AND DISPUTE RESOLUTION

This Agreement shall be construed in accordance with and shall be governed by the laws of The Netherlands, and shall be subject to the non-exclusive jurisdiction of the Dutch courts.