Citymesh General Terms and Conditions
(the “Terms and Conditions”) -

- effective September 1, 2023

These General Terms and Conditions apply at all times to the Services provided by Citymesh, to the licensed Citymesh Software and to the Hardware sold or rented by Citymesh. The Client's GT&Cs do not apply.
A recent copy of the General Terms and Conditions can always be consulted at www.citymesh.com.

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1. License of the Software and/or Network

1.1 Subject to these Terms and Conditions and timely payment of the Solution Fee, Citymesh grants to Client (and its Affiliates, only if indicated in the Commercial Order) a personal, restricted, non-exclusive, non-transferrable and non-assignable license to use the Ordered Materials on the Authorized Equipment in accordance with the applicable Documentation for the Scope as set out in the Commercial Order (“License”). The right to use the Ordered Materials on a different environment requires prior written consent of Citymesh. The License shall commence on the Effective Date and shall remain in effect for the term of these Terms and Conditions.

1.2 Client acknowledges and agrees that in order to use the Ordered Materials, Client may need to obtain, at Client’s expense, the right to use any software owned by third parties by either (i) purchasing from Citymesh the right to use such third-party software, provided and to the extent Citymesh has the right to license such third-party software to Client and offers such opportunity to Client, or (ii) licensing or otherwise obtaining from the vendors of such third-party software the right to use such third-party software. If Client elects to license such third-party software from Citymesh, such license shall be executed and attached to the Commercial Order. Any third-party software licensed thereunder or otherwise included in the Ordered Materials shall be exclusively governed by the terms of the applicable third-party license, and (without limitation) any warranties, indemnification and maintenance and support provided hereunder by Citymesh in respect of the Ordered Materials shall not apply in respect of such third-party software (except as expressly otherwise agreed to in writing by Citymesh).

1.3 The extent of the Licenses granted under these Terms and Conditions is restricted to the scope expressly set forth herein, and there are no implied licenses under these Terms and Conditions. Citymesh reserves any right not expressly granted to the Client hereunder. 

1.4 The Client shall comply with all applicable laws relating to the use of the Ordered Materials. The Client acknowledges that the Ordered Materials may include encryption and may, accordingly, be subject to export or other restrictions. 

1.5 Client shall not:

1. make back-up copies of the Solution and/or the Documentation without Citymesh’s authorization;
2. arrange or create derivative works based on the Solution and/or the Documentation without Citymesh’s express written consent;
3. assign, distribute, sub-license, hire, transfer, sell, lease, rent, charge or otherwise deal in or encumber the the Solution, or use the the Solution on behalf of any third party or make them available to any third party, nor allow or permit a third party to do any of the same;
4. copy, duplicate, reverse engineer, reverse compile, disassemble, record or otherwise reproduce the the Solution or any part of them except as expressly provided in these Terms and Conditions;
5. remove or alter any copyright or other proprietary notice on any of the Software 
6. Circumvent the business-model of Citymesh;
7. Use the Services – partly or integrally – nor the Solution, Platform in any manner that may give a false or misleading impression, attribution, or statement as to Citymesh, or any third party.
8. Disturb the good operation of the Solution and/or Platform. This includes that Clients should refrain from the use of viruses, worms, Trojans or other software that may infringe the services and interests of both Citymesh and its Clients. Clients should also refrain from any content that may burden or disturb the websites infrastructure and its proper functioning;

1.6 For the parts of the Solution hosted on Client’s premises (meaning not in the Cloud), Client is permitted to make as many copies of the Solution as are reasonably necessary for operational security, disaster recovery or back-up purposes. Such copies shall in all respects be subject to these Terms and Conditions and shall be deemed to form part of the  Software and/or Network and shall be the property of Citymesh. In respect of this Article, only internal copies are permitted. This Article is not relevant in case the Solution is hosted by Citymesh as per the terms of article 2 of these Service Level Agreement.

1.7 For the parts of the Solution hosted in/on Citymesh’s cloud, Client is permitted to make as many copies of the Documentation as are reasonably necessary for operational security, disaster recovery or back-up purposes. Such copies shall in all respects be subject to these Terms and Conditions and shall be deemed to form part of the  Software and/or Networkand shall be the property of Citymesh. In respect of this article, only internal copies are permitted. 

If the Software and/or Network is partially hosted at Client's premises and partially hosted in Citymesh's cloud, the foregoing will apply for each of its respective parts.

1.8 The usage rights of the  Solution and any usage restriction are set out in these Terms and Conditions and the Commercial Order. Client is obliged to report to Citymesh in writing any infringement on these usage rights within ten (10) days after the infringement takes place. For a period of thirty (30) days after the occurrence of the infringement, Client has the right to regularize the situation, without incurring any penalty. Citymesh shall always have the right to set up an audit to investigate the number of users/instances. Client shall effect and maintain adequate security measures to safeguard the  Software and/or Networkfrom unauthorized access, use or copying by any person.

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2. Rent / Purchase of the Hardware

2.1 The Client can choose to either rent or purchase the Hardware from Citymesh. The Client's choice will be specified in the Commercial Order.

2.2 In case the Client has chosen to rent the Hardware (“Rented Materials”), subject to these Terms and Conditions and timely payment of the Solution Fee, Citymesh grants to Client (and its Affiliates, only if indicated in the Commercial Order) a right to use the Hardware on the Authorized Equipment in accordance with the applicable Documentation for the Scope as set out in the Commercial Order. The right to use the Hardware in a different environment requires prior written consent of Citymesh. The rent shall commence on the Effective Date and shall remain in effect for the term of these Terms and Conditions. The property (rights) of the Rented Materials shall at all times remain at Citymesh. Nothing in these Terms and Conditions shall be construed as a transfer of any property (rights) in or pertaining to the Rented Materials to the Client.

2.3 The Client has to treat the Hardware rented by Citymesh, which remains the property of Citymesh, with due care. The Client will bear the risk of all loss, theft and/or damage to each Loaned Product from the date on which the Client receives such Rented Materials until the Client has returned such Rented Materials back to Citymesh. The Client may not (re)sell, (re)rent or transfer the  Rented Materials. 

2.4 The Client must return the Rented Materials and any related materials back to Citymesh: (i) to the location specified in the Commercial Order as return location on the date specified in the Commercial Order as return date, or as otherwise reasonably instructed by Citymesh; and (ii) immediately upon any termination or expiration of this Agreement.

2.5 If the Client wishes to purchase the Hardware (“Purchased Materials”), the Client may purchase the Purchased Materials from Citymesh through the order procedure described in Article 4 below. The use of the Purchased Materials is subject to these General Terms and Conditions. 

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3. Administrator Account and Authorized User Account

3.1 The Client shall be able to access the Solution and Platform as well as make use of the Services through the Administrator Account and the additional Authorized User Accounts. The Administrator shall be solely responsible for every use and activity of the Administrator Account.

3.2 Besides an Administrator Account, the Client receives also at least one (1) additional Authorized User Account. The amount of Authorized User Accounts corresponds with the number of Authorized Users of the Client. Each Authorized User has thus its own Authorized User Account. The Administrator determines the extent of the rights of the Authorized User Accounts and the Administrator shall always remain responsible for every use of the Authorized User Accounts.

3.3 Each Authorized User Account (including the Administrator Account) belongs to one person only and may therefore not be shared with other persons. The Administrator as well as every Authorized User is advised to create a unique password, to change it frequently and/or to use two-factor authentication.

3.4 The Client shall be solely responsible for the protection and security of the Administration Account and the Authorized User Accounts. In this context, the Administrator and every Authorized User must ensure the confidentiality of their respective account, including the confidentiality of the login-data such as the password. Consequently, they may not even disclose their login-data to Citymesh (for example, when seeking support of Citymesh through the helpdesk). Each loss or misuse of such login-data may therefore lead to liability towards Citymesh. Furthermore, it is strictly forbidden to:

• Ask for the login-data of other users;
• Login onto one other’s account;
• Use the Solution, Platform and Services in a fraudulent manner (e.g. the use of a false account and/or providing false information is considered as fraudulent use);
• Pretend to be another (legal or natural) person when using the Solution, Platform and Services without the necessary permission. Such action may lead to civil and criminal sanctions.

3.5 The Client must immediately (i) penalize or sanction any improper and unauthorized use and (ii) immediately inform Citymesh in writing of such use and of every controversial registration it notices.

3.6 A well-reasoned and founded notification may lead to temporary and/or perpetual suspension and/or removal of Administration Account and/or the Authorized User Accounts. Citymesh preserves itself a wide margin of discretion to ensure best quality of the Services. In any event, Citymesh will not be liable for any loss or damage arising from Client’s failure to comply with the above requirements.

4. Order, Delivery, Installation and Acceptance of the Ordered Materials

4.1 Order of the Ordered Materials. The Client can (i) purchase or rent the Hardware of Citymesh, (ii) take a license to the Solution and/or (iii) request Customizations, by requesting a Commercial Order from Citymesh for the Ordered Materials the Client wishes to purchase, rent or take a license to, the applicable quantities and fees and by submitting this Commercial Order. Upon Citymesh’ written signing of the Commercial Order and Citymesh’s notification of any necessary changes, corrections, and/or clarifications to such Commercial Order that Commercial Order is confirmed and becomes binding between the Client and Citymesh as a Commercial Order. 

4.2 Delivery of the Hardware. The terms of delivery for the Hardware ordered by the Client from Citymesh will be specified in the Commercial Order. If not specified, Citymesh shall deliver the Hardware to the Client on the Hardware Delivery Date. From the Hardware Delivery Date, all risk related to the loss or damage to the Hardware shall be assumed by the Client. 

4.3 Installation and acceptance of the Hardware. Citymesh shall provide the Installation Services in accordance with the Commercial Order or a Statement of Work. As from the Installation and succesful testing of the Hardware by Citymesh, which can be done in the presence of the Client upon request, the Hardware shall be deemed accepted.

4.4 Delivery of the Solution. Without prejudice to Articles 2 and 3 of these General Terms and Conditions, Citymesh shall deliver the Solutions to the Client on the Solution Delivery Date. From the Solution Delivery Date, all risk related to the loss or damage to the Solution Software shall be assumed by the Client. 

4.5 Installation and acceptance of the Solution. Unless otherwise agreed, Citymesh is responsible for the installation of the Solution.  Citymesh shall provide the Installation Services in accordance with the Commercial Order or a Statement of Work. As from the Installation and succesful testing of the Solution by Citymesh the Solution shall be deemed accepted.

4.6 Ordering of Customizations. In case of Customizations, Citymesh shall perform the Customizations in the form of Professional Services. Citymesh shall provide such Professional Services, which shall include the Installation Services, in accordance with a Statement of Work, included or attached to the Commercial Order. 

4.7 Installation and Acceptance of Customizations. The provisions of this article shall apply in respect of the testing, integration, configuration, installation and acceptance of the Customizations and/or Ordered Materials (insofar the Customizations shall be delivered, installed and tested along with the Solution), unless otherwise specified. Acceptance of the Customizations and/or Ordered Materials against the Acceptance Criteria  has to take place within a pre-defined Test Period as indicated in the relevant Statement of Work following the Solution Delivery Date. The Client has the responsibility to conduct business compatible Acceptance Tests within the Test Period. Unless Client can demonstrate within the Test Period that the Customizations and/or Ordered Materials do not operate as described in the Acceptance Criteria, the Acceptance Test will be deemed passed. Any serious malfunctioning, which is preventing the the Customizations and/or the Ordered Materials passing acceptance testing, has to be reported to Citymesh in writing, at the latest five (5) Business Days after it was detected. The Client shall be deemed to have accepted the Customizations and/or the Ordered Materials without reservation if (i) the Client uses such the Customizations and/or the Ordered Materials in a production environment, (ii) the Customizations and/or the Ordered Materials perform and function in accordance with the Acceptance Criteria during the acceptance testing, (iii) the Client notifies Citymesh that it accepts the the Customizations and/or the Ordered Materials, (iv) the Client has not completed acceptance testing of the the Customizations and/or the Ordered Materials within the Test Period, or (v) the Client has failed to issue a notice of acceptance or non-acceptance within five (5) Business Days from the end of the acceptance testing. 

4.8 If the Ordered Materials fail to perform or function in accordance with the Acceptance Criteria during the acceptance testing, the Client shall promptly (and in any event within five (5) Business Days as of the end of such acceptance testing) deliver to Citymesh a written notice listing all deficiencies in reasonable detail. Within two (2) weeks after delivery of the resolution, Client will conduct new tests. The deemed acceptance situations set out above shall apply to such additional acceptance round. 

Should these tests not be conclusive meaning that the resolution provided does not solve the reported problem, the acceptance procedure as set out here above shall be applicable until acceptance has taken place. The Ordered Material shall not be deemed to have failed to perform or function in accordance with the Acceptance Criteria as a result of any deficiency which (i) was not attributable to Citymesh, or (ii) was or reasonably should have been discovered by the Client in a prior Acceptance Testing but which has not been notified to Citymesh, or (iii) which is minor in nature as defined by the Acceptance Criteria.

4.9 Upon passing the Acceptance Tests, both Parties will formalize this by signing an acceptance form. Signature of the acceptance form shall not be unreasonably withheld by the Parties. It is being understood that in the event of deemed acceptance, the Ordered Materials shall be deemed accepted regardless of such acceptance form being signed. These provisions are applicable, except in the case of a proof of concept was agreed upon and executed.

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5. Intellectual Property Rights

5.1 Citymesh exclusively owns and retains all right, title, interest in and to all Intellectual Property Rights in or pertaining to the Ordered Materials, the Maintenance Services, the Professional Services, its website and all the documentation (including Documentation) and materials pertaining or relating thereto (including any copies and portions thereof), whether in machine readable or printed form, including, without limitation, (i) all software and materials which are related to the Ordered Materials, the Maintenance Services, the Professional Services, its website, (ii) all modifications and customizations and derivative works, compilations or collective works of the Ordered Materials, and (iii) all related technical know-how. The Client agrees to be bound by and observe the proprietary nature of the Ordered Materials. The Client agrees not to remove, suppress or modify in any way any proprietary marking, including any trade mark or copyright notice, on or in the Ordered Materials, or visible during its operation, or on media or on any Documentation. Client shall incorporate or reproduce such proprietary markings in any permitted back-up or other copies.

5.2 The Client owns all Client Content. Citymesh is not the publisher of and does not claim ownership of, endorse, or control any of Client Content. It is the Client’s responsibility to make sure the Client grants Citymesh, under all of Client’s rights in and to Client Content, a non-exclusive, transferable, worldwide, royalty-free, and fully paid-up license to use, copy, reproduce, and modify (in whole and/or in part) Client Content to the extent necessary for providing, operating the Solution and any related hardware, software or services, including to store, host, cache, record and display Client Content to provide, analyze, support, maintain and/or improve the Solution and any related hardware, software or services. The Client acknowledges and agrees that Citymesh may use and disclose any Client Content that Citymesh holds if necessary to comply with a legally binding order, subpoena or similar request of a court of governmental or regulatory body. The Client will indemnify and defend Citymesh against any claims made by an unaffiliated third party that: (a) any of Client Content or Client Items infringes a third party’s patent, copyright, or trademark or makes unlawful use of its trade secret or in any other manner infringe any third party's Intellectual Property Rights; and/or (b) arise from violation of this Agreement.

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6. Infringements Claims by Third Parties

6.1 Citymesh will be given prompt written notice of any third party claim on an alleged or actual infringement by the Ordered Materials or other material made available by Citymesh, and will be granted the right to control and direct the defence and settlement of such a claim. Client shall be entitled to participate in such proceedings at its own cost. Citymesh must keep the Client regularly informed of the status of the proceedings and/or settlement negotiations. Client agrees to reasonably cooperate with Citymesh in the defence and settlement of such a claim. In the event the Ordered Material or such other material as referenced above, in Citymesh’s reasonable opinion, are likely to become or actually become the subject of a claim of infringement as set out above, Citymesh shall have the right, at its sole option and expense, to (i) modify, replace the (alleged) infringing material so that it becomes non-infringing while preserving substantially equivalent functionality or create a workaround; (ii) obtain for the Client the right to continue to use, market and distribute such material as per the terms of these Terms and Conditions or (iii)  to discontinue the Client’s access to the Solution and its Services and refund the Client pro rata for Solution Fees the Client might have already paid for the remaining part of the term.

6.2 Client shall indemnify, defend and hold Citymesh and its Affiliates harmless from and against any damages, losses, costs and expenses (including reasonable attorneys’ fees) suffered or incurred by Citymesh arising out of Client’s infringement of any third party’s intellectual property rights.

6.3 In case any alleged or actual Intellectual Property Rights infringement relating to the Ordered Material is arising, the Client shall immediate cease the use of these Solution(s). In case the Client neglects this obligation, Citymesh may at its sole discretion terminate the Terms and Conditions with immediate effect and without any compensation or indemnification due by Citymesh whatsoever.

6.4 Citymesh shall have no liability for any claim which is based upon (i) Client’s unauthorized use of the Ordered Materials, (ii) Client’s or any third party’s modification of any of the Ordered Materials, (iii) Client’s failure to integrate or install any corrections to such Ordered Materials issued by Citymesh, if Citymesh indicated that such update or correction was required to prevent a potential infringement, (iv) Client’s use of the Ordered Materials in unauthorized or incompatible combination with any non-Citymesh’s solutions or services. 

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7. Confidential Information

7.1 Each Party shall treat as confidential and keep secret all Confidential Information relating to the other and shall not disclose to any third party, other than its Agents or consultants where such disclosure is necessary, any Confidential Information learned during the negotiation and performance of these Terms and Conditions. Confidential Information disclosed under this Commercial Order shall not be used by the recipient thereof for any purpose other than as required for the performance of its obligations under these Terms and Conditions and/or Commercial Order.

7.2 Client shall take precautions to maintain the confidentiality of the Confidential Information and in particular the Client covenants that it:

1. shall not copy or otherwise exploit any component of the Confidential Information other than as herein provided, nor make any disclosures with reference thereto to any third party.
2. shall ensure that all copies of the Confidential Information (made in accordance with the provisions of these Terms and Conditions) contain a permanently legible reproduction of Citymesh’s copyright notice and a confidentiality notice.
3. shall promptly notify Citymesh if it becomes aware of any breach of confidence and give Citymesh all reasonable assistance in connection with the same.

7.3 The provisions of this article shall not apply to any secret or information which:

1. is published or comes into the public domain other than by a breach of the Terms and Conditions or,
2. can be shown to have been known by the receiving Party before disclosure by the disclosing Party or,
3. is lawfully obtained from a third party or,
4. can be shown to have been created by the receiving Party independently of the disclosure and other than as part of the project. 

7.4  The Client will ensure that Network and any other Confidential Information of Citymesh is used only for the purposes of the Solution and during the Term. 

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8. Invoices and Payment Terms

8.1 The solution requested by the Customer will be confirmed in a Commercial Order. Unless the contractual arrangements differ, Citymesh will invoice the Customer in instalments when the total value of the Commercial Order (CAPEX) exceeds the values listed below:

- < 10,000 EUR (excl. VAT) CAPEX - no advance billing - order is invoiced once and in full.

- > 10,000 - < 100,000 EUR (excl. VAT) CAPEX: advance invoice equal to 40% of the Order amount upon confirmation of the Order by the Client, remaining amount is invoiced upon acceptance of the project by the Client

- > 100,000 (excl. VAT) CAPEX: advance invoice equal to 40% of the Order amount upon confirmation of the Order by the Customer, 30% invoicing at the time the project is ready for execution, remaining 40% at the time of acceptance of the project by the Customer

All payments of invoices properly issued by Citymesh to the customer under these terms and conditions are final and non-refundable. Invoices shall be emailed in PDF format to the Client's contact(s) specified in the Commercial Order.  The Client may expressly request Citymesh in writing to send a copy of the invoices to a physical address, without prejudice to the relevant legal requirements.

8.2 Client agrees to make all payments due to Citymesh under the provisions of these Terms and Conditions or any Statement of Work within thirty (30) days of the date of invoice, unless Parties have agreed otherwise in writing. Client agrees to make every payment due to Citymesh under the provisions of these Terms and Conditions in EUR. In event of late payment, all Client payment obligations to Citymesh will immediately become due and payable. The Solution Fee, Maintenance Fee and the Professional Services Fee shall be subject to an annual adaptation on January 1st of every year, whereby the new index will be the index of September of the previous year. The Solution Fee, Maintenance Fee, and the Professional Services Fee (whichever is applicable) shall automatically be increased by a percentage equivalent to the aggregate percentage increase in the Agoria “refertelonen landsgemiddelde” index or if the Agoria index is no longer published, the index replacing it or failing such index by another index reflecting the increases of labour cost. A negative index shall have no impact on the fees. Citymesh has no obligation to inform the Client in advance of this indexation. The base index taken is the index applicable three (3) months before the signing of these Terms and Conditions. Every invoice made by Citymesh shall be deemed to have been definitively accepted by the Client if it is not disputed by registered letter sent to Citymesh wherein the reason for the dispute is explained, and this within ten (10) days after the invoice date of that specific invoice. 

8.3 All fees payable to Citymesh under these Terms and Conditions shall be paid without the right to set off or counterclaim and free and clear of all deductions or withholdings whatsoever, unless the same are required by law, in which case the Client undertakes to pay Citymesh such additional amounts as are necessary in order that the net amounts received by Citymesh after all deductions and withholdings shall not be less than such payments would have been in the absence of such deductions or withholding. Sums stated to be payable under these Terms and Conditions do not include any applicable value added tax or other taxes, which shall be additionally charged to the Client. The Client is responsible for payment of all general, state or local import, usage, value added, withholding or other taxes associated with the supply or use of the Ordered Materials, the Maintenance Services and the Professional Services. The Client shall promptly reimburse Citymesh for any such taxes or duties paid by Citymesh.  

8.4 The amount of any invoice which has not been paid within thirty (30) days from the invoice date shall automatically be subject to a late payment interest equal to the legal interest rate of the Act of 2 August 2002 on late payment interests in commercial transactions, which interest shall be compounded daily as of the due date until receipt of full payment by Citymesh. In addition, Client shall pay all costs incurred by Citymesh as a result of the (extra)judicial enforcement of the Client’s payment obligation under this article. If Client fails to pay any outstanding amounts within thirty (30) days from receipt of a written default notice, Citymesh shall be entitled to suspend its obligations and the Client’s rights hereunder until receipt of payment of such outstanding amounts.  

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9. Limitation of Liability of the Parties

9.1. Subject to the maximum extent permitted by applicable law, Citymesh’s liability under these Terms and Conditions in respect of each event (or series of connected events) shall not exceed all fees with the exclusion of Maintenance Fees paid by Client to Citymesh under the present Terms and Conditions for a period of twelve (12) months applicable at the date of the event (or last of the series of connected events) giving rise to any claims of Client’s customers or business relationships and this per cause of damage. Citymesh shall not be held liable in any way, neither contractually nor extra-contractually, for discontinuing an older Release of the Solution. Client shall at all times during and after the term of these Terms and Conditions indemnify, keep indemnified and hold Citymesh harmless against all claims, demands, actions, proceedings and all losses in relation to any breach of these Terms and Conditions by Client, Authorized Users or end users, any negligent or wrongful acts or omissions of Client, Authorised Users or end users under these Terms and Conditions, any failure to act or misrepresentation by the Client, Authorized Users or end users and/or any faults and omissions in the performance of its obligations pursuant to these Terms and Conditions, resulting into claims of third parties.

9.2 Under no circumstances shall Citymesh be liable to the Client for any indirect, punitive, special consequential or similar damages (including damages for loss of profit, lost revenue, loss of business, loss or corruption of data, loss of customers and contracts, loss of goodwill, the cost of procuring replacement goods or services, and reputational damage) whether arising from negligence, breach of contract or of statutory duty or otherwise howsoever. Each Party shall have the duty to mitigate damages. The exclusions and limitations of liability under this article shall operate to the benefit of Citymesh’s Affiliates and subcontractors under these Terms and Conditions to the same extent such provisions operate to the benefit of Citymesh.

9.3 Citymesh shall not be responsible and shall under no circumstances be liable for ensuring that the Solution is safe for the Client’s intended use. The Client acknowledges that the Solution is not designed for use in environments requiring fail-safe performance (including the operation of nuclear facilities, life support machines, aviation-related applications, and/or defense systems), in any environment in which the failure of the Solution could lead to death, personal injury, or severe physical or environmental damage, or in other similar high-risk environments (collectively, “High-Risk Use”). Citymesh does not authorize High-Risk Use of the Solution, and the Client will indemnify and defend Citymesh from any third party claims for loss, cost, damage, expense, or liability of whatever nature that may arise out of or in connection with any such High-Risk Use.

9.4 Client shall ensure that he/she does not use any element of the Solution:
(i) in a way prohibited by law, regulation, governmental order or decree;
(ii) to violate the rights of the data subjects under the General Data Protection Regulation
(iii) to violate the rights of third parties;
(iv) to violate any provision of the applicable telecom legislation;
(v) to try to gain unauthorized access to or disrupt any service, device, data, account or network related to the Solution;
(vi) in a way that could harm the Solution or impair anyone else’s use of it;
(vii) in any application or situation where failure of the Solution could lead to the death or serious bodily injury of any person, or to
severe physical or environmental damage;
(viii) to harass or to encourage or facilitate any violence or interference against any person, entity or government (including the use
of the Solution as or in support of a weapon of any kind), or to help any person, entity or government launch cyberattacks;
(ix) to disable, tamper with, or otherwise attempt to circumvent any billing mechanism that measures use of the Solution;
(x) to reverse engineer, decompile, disassemble, or work around technical limitations in the Solution;
(xi) to obtain unauthorized access to, or interfere by any means with, any user, system, network, service, or account, including
evasion of filters or breach of the security or integrity of any network or system; or
(xii) for non-standard commercial uses, including use of the Solution in hazardous environments.

10. Force Majeure

Neither Party will be liable for any delay in performing, or failure to perform, any of its obligations under these Terms and Conditions due to Force majeure. Force majeure is understood to mean a temporary or permanent inability of a Party to fulfil his obligations, resulting from facts and circumstances reasonably beyond the control of that Party. Force majeure shall in any case apply to: war or war risk, insurrection or public revolt, fire caused by an outside calamity, an import or export embargo imposed by the government, floods, internet failure, third party negligence or contractual default, strike or social action and otherwise all circumstances qualified by both Parties as Force Majeure. If a Party refers to Force Majeure, he must immediately (at least within five (5) Business Days) inform the other Party of the nature of the Force Majeure, stating the date when the Force Majeure comes or has come into effect, and also when it will have ceased to exist. In this case, the Party must use its best efforts to keep the consequences to a minimum.

11. Privacy and Data Protection

11.1 The Client shall (i) comply with all applicable legal requirements regarding privacy and data protection, more in particular with the General Data Protection Regulation of 16 April 2016 (“GDPR”); and (ii) provide sufficient notice to, and obtain sufficient consent and authorization from Authorized Users, end users and any other party providing personal data to the Client and Citymesh, to permit the processing of the data by the Client and Citymesh and Citymesh’ hosting partner (if applicable), and their respective Affiliates, subsidiaries, and licensors. If and to the extent required by law, Client shall notify the individual Authorized Users (and where applicable or appropriate end users) of the Solution and that their data may be processed for the purpose of disclosing it to law enforcement or other governmental authorities as directed by Citymesh, and shall obtain the Authorized User’s consent to the same.

11.2 Citymesh shall use Client’s data only in light of the execution of these Terms and Conditions and in accordance with the data processing agreement as annexed to the present Agreement. Additionally, Citymesh shall only access and disclose to law enforcement or other government authorities to the extent required by law data from, about or related to Client, including the content of communications(or to provide law enforcement or other government entities access to such data). Citymesh does not and will not assume any obligations with respect to Client’s data or to the Client’s use of the Solution and (as the case may be) the customisations other than as required by applicable law.

12. Non-Assignment

Client shall not assign or otherwise transfer any of its rights or obligations under these Terms and Conditions without Citymesh’s prior written consent. Citymesh’s consent should be requested by registered letter, disclosing the identity of the prospective transferee. Subject to any restrictions on assignment herein contained, the provisions of these Terms and Conditions shall inure to the benefit of and shall be binding upon the Parties hereto and their respective heirs, legal representatives, successors and assignees.

13. Non-Recruitment

For the term of the Terms and Conditions and for a period of two (2) years thereafter the Client shall not recruit nor employ any personnel(directly or indirectly) employed or contracted by Citymesh and introduced in connection with the performance of these Terms and Conditions. This restriction applies to any recruitment in a country of the continent where the Citymesh personnel was mainly employed by Citymesh. In case of breach of this Article by the Client, the Client shall pay to Citymesh damages of 135,000 Euro per infringement, without prejudice to Citymesh’s right to initiate any legal proceedings and/or to claim additional damages, if Citymesh can establish that Citymesh has incurred losses exceeding this amount.

14. Term & Termination

14.1 These Terms and Conditions shall commence on the Effective Date and continue in effect for the Initial Term and shall thereafter automatically and tacitly renew for successive one-year periods (each a “Renewal Term”) unless written notice of non-renewal is given by either Party at least four (4) months prior to the expiration of any (subsequent) Renewal Term.

14.2 Citymesh may terminate these Terms and Conditions or suspend the Services and/or user rights granted hereunder by written notice to the Client if the Client fails to pay to Citymesh any amount due hereunder and the Client fails to cure such failure to pay within thirty(30) days from the date of such notice. The Client acknowledges and agrees that any use of the Ordered Materials outside the scope of the License as set forth in these Terms and Conditions, unless such use has been expressly approved in writing by a duly authorized representative of Citymesh, shall entitle Citymesh to immediately terminate (or alternatively, at Citymesh’s option, suspend) one or more of the licenses granted hereunder and/or the Terms and Conditions for material breach by the Client, without any formalities being required and without prejudice to any other right or remedy available to Citymesh pursuant to these Terms and Conditions or under applicable law.

14.3 Either Party may terminate these Terms and Conditions by written notice to the other Party if the other Party materially breaches these Terms and Conditions and fails to cure such breach within 30 days from the date of receipt of such notice by the breaching Party, provided that Citymesh shall be entitled to terminate these Terms and Conditions (or alternatively suspend the Professional Services and/or user rights granted hereunder) on giving written notice in the event the Client breaches the license terms hereunder or infringes Citymesh’s intellectual property rights. Either Party may terminate these Terms and Conditions by written notice to the other Party, effective as of the date of delivery of such notice, if the other Party becomes the subject of a voluntary or involuntary bankruptcy, insolvency or similar proceeding or otherwise liquidates or ceases to do business.

14.4 Upon termination of these Terms and Conditions during the Initial Term for whatever reason (except in case of a material breach by Citymesh, in accordance and without prejudice with Article 14.3), all Solution and Maintenance Fees for the full Initial Term shall become due and payable by the Client to Citymesh. In this event, the Client shall promptly pay all Solution Fees, Maintenance Fees, Professional Services Fees and any other outstanding amounts to Citymesh. In case of rental of the Hardware, Citymesh will remove and pick up the Hardware. The Client will bear all costs for the removal and pick-up of the Hardware. The provisions of these Terms and Conditions that are expressly or implicitly intended to survive termination, including articles 4 until 23 of these Terms and Conditions, shall survive any expiration or termination of these Terms and Conditions.

14.5 Upon termination of these Terms and Conditions after the Initial Term for whatever reason (i) the Client shall promptly pay Citymesh all fees and other amounts earned by or due to Citymesh in respect of the Ordered Material and/or any outstanding Statement of Work, up to and including the date of termination, including (non-exhaustive list) the full Solution and Maintenance Fee expenses payable under an outstanding Statement of Work; (ii) Citymesh decides at its own discretion whether Citymesh will remove and pick up the Rented Materials or whether the Customer will send the Hardware back to Citymesh in accordance with Article 2.4 of these Terms and Conditions and (iii) all licenses granted to the Client pursuant to these Terms and Conditions shall automatically terminate and the Client shall return to Citymesh all copies (in whatever form or medium) of the Ordered Material and the Confidential Information of Citymesh that are in the possession or control of the Client. The Client shall be entitled to keep one copy for sole regulatory purposes.

15. Severability

If any provision of these Terms and Conditions is held to be unenforceable, the other provisions shall nevertheless continue in full force and effect. Each Party shall use its best efforts to immediately negotiate in good faith a valid replacement provision with an equal or similar economic effect.

16. Waiver and entire agreement

16.1 The terms and conditions of these Terms and Conditions may be modified or amended only by written agreement executed by a duly authorized representative of both Parties hereto. These Terms and Conditions may be waived only by a written document signed by the Party entitled to the benefits of such Terms or Conditions. No such waiver or consent shall be deemed to be or shall constitute a waiver or consent with respect to any other terms or conditions, whether or not similar. Each such waiver or consent shall be effective only in the specific instance and for the purpose for which it was given and shall not constitute a continuing waiver or consent.

16.2 These Terms and Conditions constitutes the entire agreement and understanding between the Parties with respect to the subject matter hereof and supersedes all prior oral or written agreements, representations or understandings between the Parties relating to the subject matter hereof. No statement, representation, warranty, covenant or agreement of any kind not expressly set forth in these Terms and Conditions shall affect, or be used to interpret, change or restrict, the express terms and provisions of these Terms and Conditions.

17. Notices

Any notice required to be served by these Terms and Conditions shall in first instance be given by electronic mail to the email addresses set out in the Commercial Order. All notices given by electronic mail, shall only be valid in case confirmation of receipt was expressly given by electronic mail from Citymesh to the Client within five (5) Business Days. In case no confirmation of receipt was given by Citymesh within five (5) Business Days, all notices can be done in writing and served by personal delivery, registered letter, addressed to either Party at its address given in the Commercial Order or to such other address as a Party may designate by notice hereunder. All Notices shall be deemed to have been given either (i) if by hand, at the time of actual delivery thereof to the receiving Party at such Party’s address, as provided above, (ii) if sent by overnight courier, on the next Business Day following the day such notice is delivered to the courier service, or (iii) if sent by registered or certified mail, on the 5th Business Day following the day such mailing is made.

18. Interpretation

In these Terms and Conditions (unless the context shall otherwise require or permit):

• Reference to any statute or statutory provision includes a reference to that statute or statutory provision as from time to time amended, extended or re-enacted;
• Words importing the singular include the plural, words importing any gender include every gender and words importing persons include bodies corporate and incorporate; and each case vice versa;
• The headings or captions to the articles are for ease of reference only and shall not affect the interpretation or construction of these Terms and Conditions.

19. Relationship of the Parties

The relationship between Citymesh and Client is that of independent contractors. Neither Party is agent for the other and neither Party has any authority to make any contracts, whether expressly or by implication, in the name of the other Party, without that Party’s prior written consent for express purposes connected with the performance of these Terms and Conditions. As of the Effective Date, Citymesh shall be entitled to reference the Client as a Citymesh customer in all its commercial/marketing documentation and client listings, as a sales reference, as well as on Citymesh’s websites. The Parties agree to issue a joint press release within a reasonable period from the Effective Date and the Acceptance Date, the content of which shall be subject to both Parties’ agreement (such agreement not to be unreasonably withheld or delayed), announcing the signature of the Terms and Conditions and the implementation of the Solution at the Client.

20. Dispute resolution

20.1 Citymesh and the Client shall exercise reasonably good faith efforts to resolve any dispute, controversy or claim arising in connection with this GT&Cs. For the avoidance of doubt, the dispute resolution shall have no impact on the Parties’ termination rights and the Parties’ other rights under the GT&Cs.

20.2. General Principles:
While trying to resolve the dispute, the Client and Citymesh shall abide by the following general principles:

• The Client and Citymesh shall, in response to the other Party’s reasonable request, meet as often as reasonably necessary and provide the other with non-confidential information reasonably related to the disputed matter;
• The Client and Citymesh shall aim to resolve the dispute matter at the lowest level first;
• any resolution agreed upon shall be recorded in writing;
• with respect to each disputed matter, the Parties will keep an electronic log-file consisting of all communications exchanged
  between the Client and Citymesh, as well as all relevant related information;
• the Client and Citymesh shall be free to seek the assistance of experts (including technical and legal experts) to resolve the
  disputed matter. Third parties, invited by either Party, are allowed to attend any sessions held between the Parties as the inviting

Party may require upon written consent of the Parties. The inviting Party shall procure that such third party shall sign a writtenconfidentiality statement (using a template agreed between the Parties).

20.3. When Parties have not been able to resolve their dispute amicably after sixty (60) days, either Party may initiate proceedings against the other Party in accordance with Section ‘Applicable Law’ of this GT&Cs. Nothing contained in this article shall restrict either Party’s freedom to commence legal proceedings to preserve any legal right or remedy or protect any proprietary or trade secret right or other injunctive relief.

21. Applicable law and jurisdiction

These GT&Cs and/or Commercial Order shall be governed by and construed in accordance with the laws of Belgium and the Parties hereto submit to the exclusive jurisdiction of the Courts of Brugge (Bruges). The United Nations Convention for the International Sale of Goods shall not apply to these GT&Cs and/or the Commercial Order.

22. Special terms and conditions

Citymesh undertakes to comply to the additional special terms and conditions, if applicable, as set out in the Commercial Order if and to the extent required by regulatory requirements.

23. Professional Services

Upon request of the Client, and for the duration of these GT&Cs and Commercial Order, Citymesh can provide Professional Services to Client. Professional Services will be upfront agreed (unless otherwise agreed in these GT&Cs) in a Statement of Work. Unless stated differently in the particular Statement of Work, all Professional Services are charged on Time and Material basis, for an 8 hour Business day.

24. Warranties

24.1 CItymesh does not guarantee:

• the availability, accessibility and functioning of the Solution on non-Authorized Equipment of the Client.
• the availability of the Solution, if the Client has modified any of the parameters pursuant to which the Solution was installed,
  configured and/or tested
• the accessibility and quality of the data captured through the Solution and the Hardware, as both parameters are dependent on the devices, equipment or any software of the visitors, data subjects wherefrom the data is captured.
• Solution and Services shall be compatible with the device, equipment or any software used by the visitor, or data subject and wherefrom the data is captured.

24.2 Citymesh warrants to the Client that, during the Hardware Warranty Period, the Purchased Materials will under normal use and service, be free from defects in materials and workmanship and will function substantially in accordance with its technical specifications in effect on the Hardware Delivery Date. During the Hardware Warranty Period, Citymesh will repair or replace a defective Hardware unit, without any costs in a case of an Error (see later) or at the Professional Services Fee in case of a Client-Induced Incident, if the Client ships it to Citymesh’s designated facility along with a detailed description of the problem and the necessary documentation required for return shipment to the Client or Citymesh has agreed to collect the defective Hardware. Repaired or replaced units and subassemblies will have a new warranty period of three (3) months from delivery or until the end of the original warranty period, whichever is longer.

24.3 Citymesh’s warranty commitments under this Article 24 of these GT&Cs are provided solely for the benefit of the CLientand apply only provided that:
(i) Client has acted fully in conformity with these GT&Cs;
(ii) the Solution has been operated fully in accordance with the instructions and the technical specifications;
(iii) the Solution has not been modified or repaired or reworked by anyone other than Citymesh or its designee (being the
personnel and people working for Client) or using any unauthorized parts, subassemblies or software without Citymesh’s prior
written consent;
(iv) Client has notified Citymesh in writing during the applicable warranty period of each non-conformity discovered in the Solution
promptly upon its occurrence but in any event not later than ten (10) calendar days after the date on which the non-conformity
was discovered; and
(v) Client has promptly provided any additional information concerning the defect and its occurrence, upon Citymesh’s reasonable
request;
(vi) Client has not modified the Hardware, whether Rented or Purchased.

24.4 Citymesh’s commitments under this Article 24 of these GT&Cs do not cover:
a) consumable, perishable or wearing parts or Solution that have had their serial numbers or month and year of manufacture
removed, altered, defaced or deleted; or
b) any defects arising out of or in connection with: (i) any improper handling or use; (ii) external reasons including excessive
physical force, water, humidity, dust, or other detrimental environmental or operating conditions beyond the limits specified for
the Solution; (iii) power failures, fires, explosions or other cause beyond Citymesh’s control; (iv) operator error; (v) use not in
accordance with the Documentation; (vi) failure to implement any new releases or updates to software; or (vii) use of the
Product in conjunction with a non-Solution;
c) electromagnetic interference or malfunctions of interconnected equipment; or
d) damage to property or equipment other than the Solution itself;
e) extraordinary wheather conditions (temperatures under -5°C and above 30°C)

24.5 Citymesh does not provide, the Client is responsible for securing, appropriate insurance for any equipment from the Client not forming part of the Solution (including but not limited to the Authorized Equipment), and any activities the Client plans to carry out using these.

24.6 Citymesh will not take any backups and gives no warranties or guarantees that Client Content will be or remain accessible or stored.

25. Hosting

25.1 In case the Solution is hosted, the hosting solution is hosted by Citymesh in the datacentres of the Hosting Partner and Citymesh is entitled to provide those services (“Hosting Services”) to the Client. The Client represents and warrants that it accepts the terms and conditions of the last version of the terms of use in respect of the Hosting Services as available on link defined in the Commercial Order (the “Hosting Terms”) and acknowledges and agrees that the Hosting Partner shall retain the right to unilaterally change these terms.

25.2 The Client acknowledges that the Hosting Services will be performed in dedicated datacentres of the Hosting Partner. Citymesh shall use its best efforts to ensure an availability of the environment of 99.5 %, 24/7 as per the Service Level Terms and Conditions set out in the Hosting Terms. These warranties set out in the Hosting Terms are not applicable in case the non-conformity with the Service Level Terms and Conditions is due to accident, misuse or use in any other way which is not compatible with the Hosting Terms or the General Terms and Conditions. Hosting Partner does not give any other warranties and rejects all other explicit, inexplicit or legal warranties, including warranties in respect of merchantability, fitness for a particular purpose, adequate quality, title or non-infringement. Citymesh shall in no event provide any warranty in respect of the Hosting Services.

25.3 Citymesh shall use its best efforts to provide interrupted Hosting Services, except for:

• Planned maintenance: in some cases, the services, or part of it, will not be available during the performance of maintenance. In case the Hosting Services might be interrupted as a result of such Maintenance, this maintenance should be performed outside office hours, if reasonably feasible. The Client will as soon as possible be notified if the period of planned maintenance is known.
• Unplanned maintenance: Citymesh has the right to conduct unplanned maintenance if necessary (e.g. for security reasons). The Client will be as soon as feasible, and practical possible, been informed of such an event.

25.4 The Client and its Authorized Users give the Hosting Partner the permission to process all personal data as contemplated by the General Terms and Conditions. The Client shall (i) comply with all applicable legal requirements regarding privacy and data protection and
(ii) provide sufficient notice to and obtain sufficient consent and authorization from end users and any other party providing personal data to the Client, Citymesh and Hosting Partner in order to permit the processing of the data by the Client, Citymesh, Hosting Partner and their respective Affiliates, subsidiaries and service providers.

25.5 The maximum liability of Citymesh and Hosting Partner for all claims in respect of the Hosting Services, is limited to only direct damages and will in no event exceed the amount of hosting fees paid by the Client to Citymesh during the past twelve (12) months prior to the event which gave rise to the claim and this based upon cause of damage. These limitations are applicable regardless to the determined liability based on breach of contract, risk liability, breach of terms of warranty or any other legal ground.

25.6 If Client wishes to change the Hosting Partner providing Hosting Services, Client shall pay a relocation fee which will cover Citymesh’s manhours, costs and expenses for such change.

26. Service Level Agreement

As far as Maintenance Services are concerned, the Client can choose to have them executed by Citymesh. The terms and conditions of these Maintenance Services are set out in the Service Level Agreement. If the Client opts for the Maintenance Services, the Service Level Agreement will form an integral part of these General Terms and Conditions.

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