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Appendix 2 – Service Level Agreement

1. Cabinets and technical facilities

1.1 Smartdc provides to the customer the colocation services described in the colocation agreement.

1.2 Smartdc provides the following standard technical facilities:

• For each individual Full 46U Cabinet a 230 Volt/32A A feed;
• For each individual Half 22U Cabinet a 230 Volt/16A A feed;
• 24×7 fingerprint access control to the datacenter facilities and the colocation area(s).
• Internet access through the Smartdc Premium Network, including uplinks to the Smartdc Meet-Me-Room to connect to the Smartdc Premium Network.

1.3 The installation of the additional technical facilities agreed upon between the Parties may only take place following a written instruction from Smartdc to that effect.

2. Electrical power supply

2.1 Smartdc understands that non-stop availability of the services is key to customer, and will give great care to ensure uninterrupted power supply as far as reasonably possible.

2.2 Service level power availability: Critical Power on A feed (UPS power) average available 99.99% – and Short Break B feed average 99,9% each – over the period of a month. The non-stop availability is only guaranteed by Smartdc if customer agrees on both A feed and B feed per rack and proper use of PDU as instructed by Smartdc.

2.3 This Service level power availability will be measured over the period of a month. If the Service level power availability is not met, customer will be entitled to receive a crediting which will be subtracted from the monthly service costs. Announced maintenance, force majeure and outages deriving from a direct action
from customer will not be taken into account.

3. Cooling systems

3.1 Smartdc provides redundant cooling (N+1) per suite with enclosed hot and cold corridors for optimal use of cooling capacity.

3.2 Service level temperature: Smartdc maintains a cold corridor temperature of 24 degrees with a maximum deviation of 4 degrees per hour (minimum value 20 degrees, 28 degrees maximum value). The humidity is kept constant at 50%, with a maximum deviation (25% minimum value and 85% maximum value).

3.3 The SLA is valid in accordance with an outside temperature between minus 2 degrees Celsius and plus 32 degrees Celsius;

3.4 Smartdc will measure the air temperature at room temperature.

4. Network

4.1. Smartdc understands that non-stop availability of the network-services is key to customer, and will give great care to ensure uninterrupted network-services remain available as far as reasonably possible.

4.2. If network services are part of the colocation agreement, and customer chooses not to maintain their own network, the service level of network availability will be 99.9% (excluding customer-infrastructure)
if customer uses Layer 3. Layer 2 is not covered by this service level agreement.

4.3. This Service level network availability will be measured over the period of a month. If the Service level network availability is not met, customer will be entitled to receive a crediting which will be subtracted from the monthly network/bandwidth costs. Announced maintenance and force majeure and
outages following from a direct action from customer will not be taken into account.

4.4. The Service Level Agreement (SLA) is only applicable if the customers’ network configuration is set up redundantly and if they are active based on a Layer 3 connection to Smartdc network equipment. Otherwise, the SLA is not applicable. Customer is responsible for the proper configuration of
network connections on the Customer’s equipment. Customer may request Smartdc to provide remote hands at the prevailing rate. To configure the network connection the right way, Smartdc offers extensive documentation on the various configuration options.

5. Monthly availability

The uptime guarantee that Smartdc issues on colocation is 99.9%. The uptime guarantee is measured by calendar month. Calculation of the percentage of availability on a monthly basis is done according to the following formula:

(Days per month (30) x 24 hours x 60 minutes)
minus the total monthly disruptive service outages in minutes.
x 100
————————————————————————-
(Days per month (30) x 24 hours x 60 minutes)
minus maintenance minutes minus external factors

Interruption of service by communicated / scheduled maintenance or emergency maintenance, force majeure and outage due to the Customer failing to follow agreed procedures are included in the determination of the availability percentage as ‘external factors’.

6. Crediting

In case of unplanned downtime of Smartdc colocation services, and thus not achieving the agreed uptime guarantee, customer may obtain a one-time credit percentage of the monthly costs of the service. Customer has right to credit of the monthly service regarding the Smartdc services based on the following
table.

Usage-costs such as power will not be credited. Crediting is only applicable if the customers’ network configuration is set up redundantly based on a Layer 3 connection to the network equipment of Smartdc. Also, the customer needs to have at least two active and separate power feeds.To qualify for the credit claim, customer has to send a ticket through the Smartdc control panel. The expiration date on a claim is 5 days within the last day of the applicable month.

7. Emergency maintenance

Emergency maintenance is critical, short-term scheduled maintenance (e.g. critical firmware updates on our routers, etc.). These maintenance activities are of great importance for our complete performance and prevent unplanned downtime of the systems that make this SLA possible. Service interruption as a result of
emergency maintenance is not included in the crediting.

8. Notice

Scheduled maintenance that causes disruption of colocation services will be announced at least two weeks in advance by Smartdc. Customer receives a notice of Smartdc per ticket including an estimate of the anticipated duration of the work and the nature of the work and possible consequences for the purchased services by customer. Emergency Maintenance that causes disruption of colocation services, if known earlier, will be timely communicated to customer.

9. Contact

In case of failure in the colocation services, customers can contact their account manager or the support desk via the ticket system in Smartdc control panel. During office hours they can also be contacted through phone +31(0)10-890 0070 or outside of office hours through the 24/7 emergency line on +31(0)10-850 1115.

Datacenter regulations:

10. Obligations Smartdc

• As of the start date Smartdc shall provide the convened service to customer.
• Smartdc shall provide working space on behalf of placement and usage of customer’sequipment in the datacenter. Smartdc shall exert herself to keep the datacenter cabinets and equipment in good state. Smartdc has no obligations in regards to installation, maintenance or any other form of upkeep to the equipment of customer.
• Smartdc reserves the right to change the location of the datacenter and/or equipment cabinet(s). In the case of a change in datacenter location and/or equipment cabinet(s) Smartdc shall inform the customer in writing at least 2 months in advance. The parties shall consult together in order to reach an agreement in regards to moving customer’s equipment. customer shall ensure the moving and installation of customer’s equipment, on own account and risk, to the datacenter and/or equipment cabinet(s).
• Smartdc shall provide the Customer access to the datacenter and equipment cabinet(s) in order to install, remove or to conduct maintenance to customer’s equipment. Regardless of her other rights, Smartdc reserves the right to postpone the right of service and access to the datacenter, among others by immediately denying access to the service, in case customer is in breach of this contract.In the case of such a postponement Smartdc shall not be held responsible to any form of damage.

11. Obligations Customer

• Customer is responsible for any risk of loss, wear, deterioration or theft of its equipment.
• Customer is responsible for an own public liability insurance with a suitable insured sum in regards to its equipment and the use of the service for a minimum of the duration of this contract. Any costs associated with this insurance are the responsibility of customer.
• Access to the datacenter and datacenter-suite, in which customer’s equipment is located, is only granted in case said person is:
  • Customer or a registered and authorized contact of customer.
  • Registered at the datacenter and datacenter-security.
  • Willing to follow and submit to the access procedures and security regulations.
    It is not allowed, directly or indirectly, to move cables of which customer is not the owner, renter or lessee.
• Customer is only allowed to place its equipment in the equipment cabinets assigned by Smartdc and to do its maintenance in the by Smartdc assigned datacenter or datacenter-suite.
• Customer is only allowed to use the electricity facilities assigned by Smartdc. In the case of an interruption of this facility an Smartdc employee has to be notified immediately.
• Packaging materials of customer’s equipment have to be cleaned up and are not allowed to be left on the datacenter floor.
• Instructions by Smartdc employees and security officers have to be followed at all times.
• The placing of cables and wiring by or because of customer outside of the equipment cabinet(s) is only allowed after having received written permission by Smartdc.
• It is not allowed to bring inflammable, explosive, toxic or radioactive materials, acids or bases, or containers under gas pressure into the datacenter. Small quantities of detergents, for example to clean a computer monitor are allowed.
• It is not allowed to bring liquids inside of the secured area of the datacenter or datacentersuite.
• It is explicitly not allowed to smoke or use fire inside of the datacenter.
• It is not allowed to bring or consume food or drinks inside of the secured area of the datacenter or datacenter-suite.
• Customer is not allowed to enter area’s in the datacenter outside of the one where his own equipment is placed. It is explicitly forbidden to enter neighboring and secured computer rooms or suites.
• Access doors to the secured areas, excluding on entry, have to be closed at all times.
• It is not allowed to operate or move equipment of which customer is not the owner, renter or lessee.
• Customer shall not give, or partially give, this contract to any third party or parties unless Smartdc has given written permission in advance.
• Customer shall safeguard Smartdc against all claims of third parties for compensation of damage caused by the use of this service, the use of customer’ equipment and the presence thereof in the datacenter.
• Customer declares that, by using the service, he shall not infringe on the rights of Smartdc or third parties, shall not behave indecent or contrary to public policy or morality in regards to Smartdc or third parties and shall not incur any damage on (the property of) Smartdc or third parties.
• Customer agrees to comply with the Smartdc datacenter regulations. The Smartdc datacenter regulations are available at the datacenter and are sent as an appendix with the contract. Smartdc reserves the right to amend the Smartdc datacenter regulations at all times.
• If Smartdc supplied the customer with a double uplink for redundancy, the Service Level Agreement (SLA) only applies if the configuration of customer has been correctly configured so the redundant uplinks function in a redundant manner. Smartdc is not responsible for the configuration of the redundant uplinks within a setup done by customer.
• Network addresses (PA/PI space) announced by Smartdc in our network need to contain the white label abuse information of Smartdc. To properly manage these network addresses, we require that Smartdc is added as RIPE maintainer of the provided range (MNT-i3D and/orAS49544-MNT).

Appendix 3 – Protocol of access & authorized persons

1. Access rules for Authorized Persons

1.1 Access to the Smartdc co-location Area(s) in which Equipment of customer is co-located will only be granted if the contact person of customer is authorized and if the contact person designated by customer is registered at the reception desk, and will submit to the following access rules:

1.2 Access rules during Office Hours:

• The authorized employee of customer with PAC (Personal Access Card) may have access to facility of Smartdc without notice in advance.
• The authorized employee of customer without PAC reports at the reception desk, states the purpose of his or her visit and proves his or her identity with a valid ID;
• The authorized employee of customer shall register in the visitors’ register;
• The visitor’s badge provided by the reception desk must be worn visibly at all times;
• The access pass provided by the reception desk gives access to the protected Co- location Area(s).

1.3 Access rules outside Office Hours: For access outside Office Hours, the same rules apply as those for access during Office Hours indicated under Definitions.

1.4 When leaving the Smartdc co-location area, the authorized employee of customer shall return the visitor’s badge and the access pass at the reception desk (in case of departure during Office Hours) or at the security service (in case of departure outside Office Hours) and shall deregister from the visitors’ register

2. Access rules for third parties

2.1 Access to the Smartdc Co-location Area(s) in which customer Equipment of customer is housed shall only be granted to a third party called in by customer if:

• The employee of the third party may only be escorted by personnel of customer; or

2.2 Customer shall guarantee and ensure that the employees of third parties will comply with the access rules stated here below.

2.3 Access rules during Office Hours:

• The access rules applicable to authorized employees of customer, as specified under Article 1.2 (a) through (d), shall apply by analogy;
• The third party’s employee will be escorted by an employee of Smartdc or customer to the place where the work is to be performed;
• In the event that an employee of a third party is not escorted by an authorized employee of customer, he must have left the Smartdc co-location area by 18:00 hours at the latest unless the Customer has authorized the person by name.

2.4 Access rules outside Office Hours:

• For access outside Office Hours, the same rules apply as those for access during Office Hours, as indicated under Article 2.3(a) and (b), on the understanding that the third party’s employee must announce his arrival at least half an hour in advance by telephone to the security service (+31108501106/ +31108501115), stating a telephone number for purposes of verification of the authorization.

2.5 Access to the Smartdc co-location area shall only be granted if the third party is accompanied by an authorized employee of customer.

2.6 When leaving the Smartdc co-location area, the third party’s employee shall return the visitor’s badge and the access pass at the reception desk (in case of departure during Office Hours) or at the security service (in case of departure outside Office Hours) and shall deregister from the visitors’ register.

Appendix 4 – Rules of conduct and security

1. Rules of conduct

1.1 It is not permitted to bring highly inflammable substances, explosives, poisonous or radioactive substances, acids or bases, or containers with pressurized gas into the Smartdc facility. Small quantities of detergent, for example to clean a screen, are permitted.

1.2 It is not permitted to enter the Smartdc facility area when under the influence of alcohol or other inebriant or intoxicating substances that may influence a person’s motor system and/or state of mind.

1.3 Inside the Smartdc facility, visitors must behave in accordance with general standards of decency.

1.4 Visitors must use the shortest route to reach equipment of customer.

1.5 It is not permitted to bring any liquids into the protected co-location area.

1.6 It is not permitted to smoke or use open fire in the protected co-location area.

1.7 It is not permitted to bring and/or consume any food or drinks in the protected co-location area. Consumption is only permitted in the public space of the facility. It is permitted to use the coffee machine (free of charge) and the soft drinks machine (paid).

1.8 It is not permitted to stay in other co-location areas than those where equipment of customer is located. Entering the adjacent protected co-location areas is explicitly prohibited.

1.9 Entrance doors to protected co-location areas must always be closed, except when entering these rooms.

1.10 It is not permitted to operate or relocate equipment of which a person is not the owner or lessee.

1.11 It is not permitted to relocate cables, directly or indirectly, of which a person is not the owner or lessee.

1.12 Customer equipment may only be placed into the cabinet(s) designated by Smartdc, and work may only be performed to customer’s own equipment inside the co-location area designated for this purpose.

1.13 It is only permitted to use the power supply allocated by Smartdc. Any failures of this supply must be reported immediately to the reception desk or Smartdc’s employees.

1.14 Customer equipment or other equipment placed or used inside the Smartdc co-location area must meet the applicable Dutch norms for fire safety and electricity safety and electromagnetic shielding, including the ESD safety norms and requirements as established by ESD (Electrostatic Discharge Association).

1.15 In the course of installation, maintenance and operation of customer equipment, the installation and safety instructions of the manufacturer must be followed at all times.

1.16 Packaging material of customer equipment sent to Smartdc must be removed in the dispatch room(goods reception area) before installing the equipment in the Co-location Area. Such material can be left in the designated space of the facility, whereupon Smartdc shall take care of removal.

1.17 The instructions of Smartdc employees and security guards must always be followed.

1.18 Any installation of cables and wiring on or on behalf of customer outside the cabinets may only be performed by Smartdc personnel.

2. Security regulations

2.1 Upon entering the protected co-location area where equipment of customer is set up, the (presence and location of the) following items must be verified:

• Unbolting of doors;
• Fire detector;
• Fire extinguisher;
• Transparent warning sheets of the extinguishing gas installation;
• Alternative exit and escape route

2.2 The protected co-location areas at are equipped with smoke detectors as well as a fire extinguishing gas installation.

2.3 In case of smoke emission from customer equipment, it is obligatory to do or refrain from doing the following:

• Try to stop the smoke emission by switching off customer equipment;
• Never under any circumstances switch on again the defective customer equipment;
• Leave the protected co-location area and report at the reception desk

2.4 In case of a beginning fire, customer shall undertake the following actions:

• Break the cover glass of a red fire detector, which will alert the fire brigade, the security guard and/or the responsible Smartdc employee;
• Try to end a beginning fire by means of the fire extinguisher hanging beside the entrance door of the colocation area;
• In case it is not possible to extinguish a beginning fire, customer shall immediately go to the reception desk (without using the elevator), where customer shall await further instructions from the security guard and/or fire brigade and/or the responsible Smartdc employee;

2.5 In case of automatic fire detection, the fire brigade and the security guards will be alerted automatically and the fire extinguishing gas installation will be activated. In addition, the doors of all protected co-location Areas will be unbolted. Irrespective of the fact whether customer observes the fire himself, he will have to comply immediately with the following instructions:

• If the red warning light in the co-location area is on, this co-location area must be cleared immediately. The ao-location area will be filled up with extinguishing gas forcing out the oxygen!
• If the red warning light is on, this co-location area may not be entered under any circumstances.
• The illumination of the red warning light is accompanied by an acoustic alarm.

2.6 The Smartdc co-location area is equipped with electronic smoke detectors. In case of smoke detection, all swing doors in the building will be closed and an acoustic alarm will be activated. In addition, the doors of all protected rooms and emergency exits will be unbolted.

2.7 If the alarm is activated and the swing doors in the building are closed customer should:

• Leave the building immediately.

2.8 If customer detects any smoke emission or fire, he must immediately:

• Warn the reception desk (number +3110 850 1115);
• Leave the building.
• If the acoustic alarm goes off and the swing doors in the co-location area are automatically closed, customer must:
• Leave the building immediately.

2.9 Prevention of injury:

• Avoid all action or conduct that may lead to your own or another person’s injury;
• In case of increased risk of injury in the performance of work in the protected co- location area(s) please inform the reception desk or security service of this risk;
• If customer receives injury inside the Smartdc co-location area in the form of grazes, cuts or burns or contusions, he must report at once at the reception desk (number +3110 850 1106) where a First Aid kit can be found or customer can be referred to a company aid worker.

2.10 Risk of Electrocution

• Any work to equipment or circuitry involving the risk of contact with the mains voltage may exclusively be carried out by authorized persons according to the norm NEN 3140
• Electric shocks caused by mains voltage or electrostatic discharge must be reported to the reception desk immediately.

Appendix 5 – General Terms and Conditions

1. Applicability

1.1 These General Terms and Conditions apply to all offers of Smartdc and all Agreements between Smartdc and the customer where goods and / or services are provided, both under the Agreement(s) and beyond.

1.2 The General Terms and Conditions are always applicable, other conditions refer to certain specific supplies and are only applicable to the specified types of transactions and terms for those transaction may differ from, and will supersede , the corresponding terms of these General Terms and Conditions.

1.3 Whenever these General Terms and Conditions offers (legal) protection to Smartdc, its managers, and/or management, can rely on this protection too.

1.4 Invalidity (null and void or annulled) of an individual provision shall not affect the remaining provisions of these General Terms and Conditions. Parties will then decide on replacing it with an arrangement that will approach the effect of the lapsed provision as closely as possible.

1.5 Deviation from these General Terms and Conditions, is only valid if expressly agreed upon in writing. If these General Terms and Conditions form a part of a written Agreement, in case of conflict between a provision of that Agreement with the provisions in these General Terms and Conditions the provision of the
Agreement will prevail.

1.6 Any purchase conditions or similar (general) terms and conditions of the customer shall not apply.

2. Basic obligations of the Customer

2.1 For the total or partial transfer of rights and / or obligations to third parties under an Agreement for which these General Terms and Conditions apply, the customer needs to ask for Smartdc’swritten permission in advance.

3. Both parties are entitled to transfer a right to receive payment of a debt receivable

3.1 Prior to concluding and/or executing an Agreement the customer must take great care to provide all necessary information on its own initiative fully and timely to Smartdc.

3.2 Customer will provide all and any kind of assistance needed for the proper execution of an agreement, not only on request but also on its own initiative.

3.3 Where appropriate and necessary for carrying out work for the agreed services, the customer will make (work or installation) space, electricity, (auxiliary) equipment, materials and equipment for telephone and network connections, timely, free and properly available to Smartdc staff.

3.4 If Smartdc should have access to a location of the customer for the supply of goods or services, the customer will provide access to that location during normal working days and hours of Smartdc.

3.5 The customer is responsible for proper use and / or application of all goods, including data and /or information, of Smartdc which the customer obtains under an Agreement with Smartdc, also the customer must take care of securing them. The customer may not derive any rights from the presence of such goods.

4. Confidentiality, secrecy and security

4.1 Both parties are bound to secrecy of all, information which is known or should be known to be confidential, whether or not the information is expressly identified as such, which a party obtained or will obtain from the other party, or is included in the submitted or delivered goods materials or documentation and
they will implement all reasonably necessary precautions to secure secrecy, including imposing the obligation of secrecy on their staff and (employees of) third parties which could access the information.

4.2 On behalf of the customer Smartdc has laid down security measures in protocols, procedures and a standard non-disclosure Agreement. Smartdc is committed to enforce these measures and the customer is obliged to cooperate and comply with the resulting rules.

4.3 Each party shall refrain from actively trying to employ the other party’s employees and may only after prior written consent of the other party, employ, hire or have otherwise, directly or indirectly working for him, staff of that party who are or not involved or have recently (less than a year ago) been involved in the execution of the Agreement.

4.4 Parties shall refrain from any action which might harm the reputation of the other party Offer, time limits, invoice, payment and collection costs.

4.5 customer should take great care to fully inform Smartdc about requirements and / or specifications and to provide all information both on request and unasked, which Smartdc needs to make a correct offer to customer.

4.6 All offers by Smartdc are make without engagement. Offers stand, unless otherwise indicated, for a period of fourteen days.

4.7 Smartdc will only be bound by an oral (and / or by telephone) established Agreement, or an oral amendment to an Agreement, or other oral communication, if the resulting Agreement is explicitly confirmed in writing by Smartdc. If the contents of an Agreement is not laid down in the form of a written Agreement, its content is determined by the text of the written confirmation, together with the provisions of these General Terms and Conditions.

4.8 All commitments (oral, in any commercial form, forecasts, budgets, in websites, or otherwise) which may have preceded a written order confirmation and / or Agreement cease to be valid, unless confirmed, implicitly or explicitly, in the written Agreement.

4.9 All time limits for delivery stated by Smartdc are determined to the best of its knowledge, based on the information available to Smartdc at the time. Smartdc shall exert best efforts to prevent overrun and will inform the customer as soon as possible about the level of (expected) exceeding of any time limit. Unless Smartdc is in default after proper notice of default, exceeding of a time limit will not entitle the customer to any compensation for damages or rescission of the Agreement.

4.10 For the determination of time, quantity, and status of the delivery or delivered goods, the documents supplied by Smartdc will prevail, unless the customer can prove a deviation from the aforementioned
documents.

4.11 Prices offered will, in principle, not be altered before delivery. Those prices are based upon the current circumstances. In case of evident unforeseen significant changes with respect to taxes that affect the price, the cost of wages and / or energy, or the ratio of the applicable exchange rates for the date of delivery – or, in case of an ongoing Agreement during the execution of the Agreement – Smartdc has the right to adept the price so that the adverse effects will be compensated.

4.12 Unless expressly stated otherwise, Smartdc’s prices are “ex-works” (incoterms), goods will be made available (/ at the customer’s disposal) at the office (/ warehouse) at the headquarters of Smartdc and do not include costs for shipping, storage, insurance, customs clearance, installation, travel, nor any other associated costs.

4.13 All prices and amounts are stated in Euros, unless another currency is expressly stated by Smartdc, and do not include sales tax (VAT) or other levies imposed by the government. Differences of opinion concerning any matter of charging VAT to the customer for a certain (type of) delivery will be a question to the auditor of Smartdc, the response of the auditor applies between the parties as a binding opinion.

4.14 Smartdc’s invoices will be paid by the customer in accordance with the payment terms stated on the invoice. If no payment terms are stated on the invoice or in the Agreement, customer will pay within 30 days after the invoice date. Payment by the customer will be made without deduction, offset or suspension, by transferring the amount due in Euro’s into the bank account indicated by Smartdc.

4.15 If the customer should fail to pay within the agreed period of time the customer is deemed by law to be in default and Smartdc will, without notice, have the right to charge customer for the legal interest (interest in accordance with the European 2002 regulations on Late Payment in Commercial Transactions) over the entire amount as of the due date, without prejudice to any rights to which Smartdc may further be entitled.

4.16 All (collection) costs incurred by Smartdc in recovering sums due by the customer, both judicial and extrajudicial, shall be borne by the customer.

4.17 In the event an Agreement is concluded with several (legal) persons as joint principle(s), each of them will be severally liable for

5. Ownership and risk

5.1 Any goods delivered to the customer remain the property of Smartdc as security for the payment of all amounts related to the Agreement by the customer to Smartdc, until the customer has paid all sums due to Smartdc including all costs and any increases in interest and collection costs. customer will refrain from all (legal) acts that could hamper Smartdc in exercising the reserved property rights. As long as the reservation of title is valid, the customer may only (re)sell the goods, as part of the normal business operation of the customer.

5.2 Notwithstanding any delivery obligation. Smartdc may maintain possession of goods, copyrights and other proprietary rights, and (intermediate) results of services, received or produced, in the context of the Agreement, until the customer has paid all amounts owed to Smartdc.

5.3 The customer will bear the risks for goods delivered by Smartdc from the time of delivery. The risk of damages to or loss of these goods will pass to the customer at the moment that these goods are put at his disposal or have been handed over to a third party (e.g. a carrier) on the customer’s behalf.

6. Additional work

6.1 If the nature or contents of an order for services should alter to the extent that the agreed duration will be affected, the customer will notify Smartdc as soon as possible. Any costs ensuing from the alteration will be borne by the customer.

6.2 If an Agreement was concluded for a set number of hours, and this number should be exceeded, the extra work will be invoiced to the customer at 50% of Smartdc’s usual hourly rates. If the Agreement is terminated before the agreed number of hours is spent, the customer will pay Smartdc for the unused hours a
fee based on half of Smartdc’s usual hourly rates.

6.3 If a fixed price or a maximum number of hours is exceeded (partly) due to lack of customer or third parties involved in the execution of the Agreement, the cost of the extra work has to be fully paid for by the customer.

7. intellectual property

7.1 If an assignment comprises modification, expansion, or adaptation of software used by the Customer, the Customer guarantees that he has the right to have these modifications of (the source-code of) the software done, either in virtue of his ownership of the (intellectual) property-rights or on account of the permission
obtained from the holder of the property-rights. The Customer will indemnify Smartdc against third-party claims in this respect.

7.2 Under a software licence Agreement, Smartdc will only transfer to the Customer the non-exclusive right of usage. All further rights (of intellectual and/or industrial property, including copyrights) are reserved to Smartdc. The Customer may not transfer the right to use the software to a third party, except after obtaining written permission of Smartdc.

7.3 The Customer does not obtain the right to copy the software, change the software, or have it changed by a third party, except on the basis of a right granted by law. The license to use the software is limited to the use of this software on a single computer system and / or for one workstation at the same time, unless parties have agreed upon a multi-user license Agreement. In case of “multi-user licenses “Customer may have the software loaded on the agreed number of (computer) systems and/or in use at the agreed number of
workplaces.

7.4 If standard software is supplied in sealed wrapping, Customer will not break the seal, unless he accepts the delivered product and thereby agrees with the terms of the (licence) Agreement accompanying the software.

7.5 Software supplied by Smartdc may be provided with safety devices protecting the rights of Smartdc pertaining to the software. The Customer is not allowed to remove these provisions.

7.6 Smartdc will indemnify the Customer against claims of third parties in respect of violation of their rights in the Netherlands by standard software supplied by Smartdc. If necessary Smartdc may implead its supplier(s) / licensor(s).

8. Use of services provided by Smartdc

8.1 If an Agreement is concluded concerning the supply of services where the Customer makes use of software, equipment, buildings, networks or Internet connections from Smartdc, the Customer undertakes not to infringe any rights of Smartdc or third parties by use of the Service, and not inflict any damage upon (any property of)Smartdc or third parties. Customer undertakes in particular:

• to respect the intellectual property rights of third parties;
• not to distribute any data contrary to statutory provision, nor behave indecently or contrary to good morals, public order or the (n)etiquette;
• not to gain access to computer systems and/or computer networks for which he is not authorized and not to change, delete, or render unusable data of third parties, or to add data to data of third parties;
• not to spread malicious data such as computer viruses;
• not to use the service in a manner that will inflict damage, including diminished functionality, toproperty of Smartdc or third parties, or that will hinder other Customers of Smartdc in their use of any service provided by Smartdc.

8.2 The Customer is liable for any damage that the Customer, its employees and / or equipment inflict Smartdc by use of a service by the Customer. Therefore, the Customer must have these adequately covered by insurance for at least the duration of the Agreement. At Smartdc´s request the Customer will provide
Smartdc with prove of proper insurance. The costs of insurance shall be borne by the Customer.

9. Suspension

9.1 In the event the Customer does not fulfill its obligations after being summoned to comply or having received a notice of default thereto, Smartdc may suspend the execution of the Agreement until the Customer has met all its obligations.

9.2 If Smartdc has good reason to suspect that the Customer is not sufficiently solvent (anymore), Smartdc may suspend the (further) execution of any Agreement concluded with the Customer until the Customer has provided sufficient security for the fulfillment of its obligations. The suspension starts as soon as Smartdc has informed the Customer in writing that the execution is suspended.

10. Force majeure (non-attributable shortcoming)

10.1 No party is obliged to fulfill any obligation ensuing from an Agreement to which these General Terms and Conditions are applicable, if that is not possible for reasons that cannot be attributed to a fault of that party and are not for its risk. If a party cannot be expected to fulfill its obligations due to force majeure or
similar circumstances, performance under the Agreement will be suspended for the duration of no more than one month, after which period of time parties shall consult with each other about interim modification or early termination of the Agreement.

10.2 Force majeure, as meant in the previous article, also includes inability to comply due to strikes of necessary staff, and force majeure and / or default of suppliers of Smartdc; and also prevention of (timely) performance as a result acts or restrictions imposed mandatory by the government to Smartdc . Furthermore
the failure of any form of supply of energy and / or network connections due to breakage or damage to cables, or otherwise failure of electricity or (Internet) connections, fire, caused by external events or shortcomings of third parties, are subject to force majeure.

11. Failure to perform (attributable shortcoming)

11.1 Smartdc will only be liable for default (failure to perform /attributable shortcoming)under an Agreement to which these General Terms and Conditions apply, if Smartdc after receiving a written notice of default still imputable fails to perform its obligations within the reasonable time period for remedy stated in the notice of default and the Customer then rescinds the Agreement.

12. General warranty provision

12.1 Smartdc always will guarantee that products and services supplied will be of good quality. Smartdc cannot however guarantee that the ends aimed at by the Customer will be achieved if the Customer’s expectations exceed any guaranteed qualities stated in writing in an Agreement.

13. Liability

13.1 Smartdc’s liability is limited to those cases and to the extent liability is expressly accepted for in these General Terms and Conditions.

13.2 Smartdc accepts liability for bodily injuries or similar damage caused by products that are produced by Smartdc, where the maximum amount to be reimbursed by Smartdc never will exceed the coverage provided by Smartdc’s insurance.

13.3 Smartdc accepts liability to the limits mentioned in article 13.6, in such cases in which the Customer proves that the occurrence of the damage is directly and entirely due to willful intent or gross negligence on the part of Smartdc.

13.4 Smartdc accepts liability only for direct damage caused by a shortcoming in the fulfillment of an Agreement which is attributable to Smartdc, but never more than up to the limits mentioned in article 13.6.

13.5 In all other cases, including damage caused by an unlawful act of (an employee of) Smartdc, Smartdc’s liability for damage suffered by the Customer is excluded, regardless of how an action may be brought against Smartdc. The exclusion of all liability of Smartdc applies particularly (but not only) in respect of:

• (In)correctness or (in)completeness of information or advice given before the Agreement as concluded.
• Damages caused by exceeding of any agreed time-limit.
• Damages caused (or partly caused) through shortcomings on the part of the Customer, including damages caused by the provision of insufficient or faulty information by the Customer.
• Liability of the Customer towards third parties.
• Liability of Smartdc liability for faults of subordinates.
• Consequential damage or other indirect damage of the Customer, including damage due to business interruption, loss of profits, lost savings, loss of data or any other form of indirect or ensuing damages.
• Any form of damage caused by products and / or software made available by Smartdc free of charge, regardless whether or not it was provided by electronic means and whether or not it was meant for demonstration or testing purposes.
• Smartdc’s liability for death or injury of human beings, or damage to personal possessions is excluded if the Customer uses any goods or software supplied by Smartdc for critical purposes without having Smartdc informed of this intended use prior to the delivery.

13.6 Except in case of Products liability the total liability or obligation to compensate for damages of Smartdc will never exceed the agreed price (excluding VAT) for the Agreement with the Customer. The maximum liability in case of long-term Agreements will never exceed the amount paid by the Customer to Smartdc for the products supplied and/or services rendered during the last twelve months preceding the date on which the damage occurred. In all cases however, the sum total of Smartdc’s liability or obligation to compensate for damages will never exceed the amount of Euro 100,000.=. This maximum liability is subject to deduction of any sums reimbursed to the Customer by Smartdc. If Smartdc holds the Customer liable for any damage suffered by Smartdc, the maximum liability as described in this Article will be applicable.

13.7 Without prejudice to other provisions in these General Terms and Conditions, Smartdc shall not be required to compensate for damage if Smartdc is not notified in writing of the damages as soon as possible, at the latest within 3 months of their occurrence.

13.8 The Customer must indemnify Smartdc against claims of the Customer’s customers and other third parties which have a (business) relation with the Customer.

13.9 The Customer must indemnify Smartdc against claims with respect to damage suffered- in connection with the execution of the Agreement – by third parties, including employees of Smartdc, which damage resulted from an act or omission of the Customer or from an inadequate or defective product made available, supplied or used by the Customer.

13.10 The Customer must indemnify Smartdc against claims by persons whose personal data is or has been recorded, processed or stored in connection with a register of persons maintained by the Customer and/or for which the Customer is responsible.

14. Termination of agreements

14.1 Agreements entered into for an indefinite period of time, can only be terminated on the last day of a month by written notice which must be received at least an entire calendar month in advance.

14.2 Each party may partly or completely terminate all Agreements concluded between the parties in writing with immediate effect without a prior notice of default, without any obligation to compensate for damages and without prejudice to any rights or remedies to which he may further be entitled, if the other party is granted a provisional or non-provisional suspension of payments, if a petition for bankruptcy or liquidation (USA) is filed with regard to the other party or if the other party should lose control over his assets, or if it is known that the
other party’s company in the short term will cease to exist or in any other cases that it should be evident that the other party will no longer be able to perform his obligations.

14.3 If a situation of force majeure lasts for more than 90 days, the Parties shall be entitled to terminate the Agreement by rescinding it in writing. What has already been performed shall then be settled proportionately, without the parties otherwise owing each other anything.

14.4 Rescission of an Agreement has no effect with regard to the earlier and correct supply of goods or services, unless the Customer proves that what has been supplied before the rescission is of no use to him without provision of the remaining part of the goods or services.

14.5 In case of premature termination or dissolution, the Customer shall not be entitled to reimbursement of any payments already made nor be discharged from the obligation of paying sums due before the time of termination.

15. Applicable Law and Disputes

15.1 All Agreements and relationships between Smartdc and the Customer are subject to the Law of The Netherlands.

15.2 Disputes between Smartdc and the Customer shall be exclusively submitted to the competent court in Rotterdam. However, if the Customer is domiciled abroad, Smartdc reserves the right to submit a dispute between parties to be decided by the competent court in the country where the Customer is domiciled.

15.3 The Vienna Sales Convention of 1980 shall not apply.

15.4 Parties may agree that a dispute is subject to arbitration according to a deed to be drawn up there to, or that a binding advice shall be requested in view of settling the dispute.