MASTER SERVICES AGREEMENT

Questions about these terms and conditions can be sent to info@turbobytes.com.

PARTIES

  • Turbobytes B.V., a private limited liability company (besloten vennootschap met beperkte aansprakelijkheid) incorporated under the laws of the Netherlands, having its corporate seat in Vleuten, the Netherlands, and its offices at Dwergbieslaan 130, 3452 AL Vleuten, the Netherlands, registered with the trade register of the Chamber of Commerce under number 55083897, hereinafter referred to as: "Turbobytes";
  • and the user of TurboBytes services, hereinafter referred to as the "Customer";

All parties hereinafter collectively and individually referred to as: “Parties” and “Party” respectively.

WHEREAS:
  1. Turbobytes provides services ("Services") for content delivery to end users and for collecting and analyzing data about the performance of content delivery networks ("CDNs");
  2. The Customer wishes to enter into an agreement with Turbobytes for the rendering of any of such services;
  3. This master service agreement (“Master Services Agreement”) is applicable to all services by Turbobytes to the customer;
  4. The specifics of each service by Turbobytes will be detailed in a separate services agreement (“Services Agreement”). The Master Services Agreement and/or any Services Agreements shall be jointly referred to as “Agreement”.
DECLARE TO HAVE AGREED AS FOLLOWS:

1. INTERPRETATION

  1. Definitions. All capitalized terms in this Master Services Agreement and any Services Agreements shall have the meaning assigned to them herein, unless otherwise defined in a Services Agreement.
  2. Interpretation
    1. Words denoting the singular include the plural and vice versa. Words denoting one gender include the other gender.
    2. The words "include", "included" or "including" are used to indicate that the matters listed are not a complete enumeration of all matters covered.
    3. No provision of this Agreement is to be interpreted adversely against a Party solely because that Party was responsible for drafting that particular provision.
    4. English language words used in this Agreement intend to describe Netherlands legal concepts only and the consequences of the use of those words in English law or any other foreign law are to be disregarded, except that the Agreement as expressed in English is understood to be binding and to be given full force and effect in the equivalent language in any country to which the Agreement applies.
    5. The headings in this Agreement are for construction purposes as well as for reference.
  3. Schedules. Any Schedule forms an integral and inseparable part of this Agreement.

2. GENERAL

  1. This Master Services Agreement is applicable to all Services Agreements between Customer and Turbobytes.
  2. In the event of any conflict between the Master Services Agreement and the terms and conditions of any Services Agreement, the latter shall prevail.
  3. The applicability to this Agreement of Customer’s general, special or other terms and conditions, however named, is hereby expressly rejected.

3. BILLING AND PAYMENT

  1. Turbobytes shall charge Customer for the Services according to the payment schedule, payment method and prices set out in the applicable Services Agreement.
  2. All charges for Services are exclusive of applicable taxes.
  3. Invoices from Turbobytes must be paid within 15 days of the date thereof, without any discount, reduction, setoff, counterclaim or compensation, and free and clear of any deduction for or on account of any tax, to the bank account designated by Turbobytes.
  4. Turbobytes is entitled to suspend all its Services under the Agreement in the event that the Customer fails to timely pay Turbobytes’ Invoices or if Turbobytes has valid reasons to assume that Customerr will fail to meet its financial obligations towards Turbobytes under the Agreement.
  5. All payments to Turbobytes will be first allocated to collection costs, then to interest and finally to the oldest unpaid invoice(s) with regard to any Agreement.
  6. In case Customer is overdue with any amount payable under this Agreement, including any Services Agreement, Turbobytes shall, without any notice of default being required, be entitled to charge interest of the lesser of (a) 1 % per month over the outstanding amount until payment thereof in full and (b) the maximum amount permitted by applicable law and furthermore charge collection costs of 15 % of the outstanding amount until payment, at a minimum of € 250,=.

4. WARRANTIES, LIABILITIES AND INDEMNIFICATION

  1. Customer’s warranties. Customer hereby represents and warrants to Turbobytes that:
    1. it is authorized to enter into the Agreement;
    2. it will not use the Services: in a manner that (i) infringes, violates or misappropriates any rights of Turbobytes or any third party; (ii) to engage in spamming or other impermissible advertising, marketing or other activities, including, without limitation, any activities that violate any applicable anti-spamming laws and regulations; (iii) in a way that is illegal or harmful or promotes illegal or harmful activities, including, without limitation, activities that might be libelous or defamatory or otherwise malicious or harmful to any person or entity, or discriminatory based on race, sex, religion, nationality, disability, sexual orientation, or age;
    3. (i) it is solely responsible for the development, operation, and maintenance of its applications and content, including without limitation, the accuracy, security, appropriateness and completeness of its content and all product-related materials and descriptions; (ii) that is has the necessary rights and licenses, consents, permissions, waivers and releases to use and display its applications and content; (iii) that neither its application nor its content (a) violates, misappropriates or infringes any rights of Turbobytes or any third party, (b) constitutes defamation, invasion of privacy or publicity, or otherwise violates any rights of Turbobytes or any third party, or (c) is designed for use in any illegal activity or promotes illegal activities, including, without limitation, in a manner that might be libelous or defamatory or otherwise malicious, illegal or harmful to any person or entity, or discriminatory based on race, sex, religion, nationality, disability, sexual orientation, or age; (iv) that neither its application nor its content contains any harmful components; and (v) to the extent to which you use any of the Turbobytes’ trade or other marks, that it will conduct its business in a professional manner and in a way that reflects favorably on the goodwill and reputation of Turbobytes;
    4. Turbobytes nor any third party will be exposed to any computer virus (or any similar or other damaging components) as a result of Customer’s use of the Services;
  2. Turbobytes hereby represents and warrants to Customer that it is authorized to enter into the Agreement.
  3. No Other Warranties. Unless specified in this agreement, all express or implied conditions, representations and warranties, including any implied warranty of merchantability or fitness for a particular purpose, are disclaimed, except to the extent such disclaimers are held to be legally invalid.
  4. Limitation of Liability. Except for Customer’s indemnification obligations set forth in Section 4.5 below, neither Party will be liable for any lost profits, or any form of special, incidental, indirect, consequential or punitive damages arising out of or related to this Agreement, however caused and under any theory of liability (including negligence) even if such Party has been advised of the possibility of such damages. Turbobytes’s aggregate liability under the agreement shall in no event exceed the total amount that Turbobytes charged the Customer in the 12-month period before the date on which the claim arose. The Customer shall never have any claim in relation to the Services towards Turbobyte’s third party contractors and service provides.
  5. Indemnification. Either Party will defend, indemnify, and hold the other Party, harmless from and against any and all liabilities, losses, damages, costs and expenses (including legal fees and expenses) associated with any claim or action brought against such Party or its third party for any actual or alleged infringement of the warranties as set forth on Section 4.1 or Section 4.2 respectively.
  6. Waiver. Notwithstanding the previous subsections of this Section 4, Turbobytes makes no warranties or representations about, and assumes no liability or responsibility for:
    1. The (uninterrupted) availability of the Services;
    2. Any errors, mistakes or inaccuracies of the Services, including without limitation any bugs, viruses, Trojan horses or the like;
    3. Any unlawful copying of or unauthorized access to the Services by any third party;

5. INTELLECTUAL PROPERTY RIGHTS

  1. All intellectual and industrial property rights including without limitation: registered trade and service marks, letters patent, utility models, registered designs, unregistered trade and service marks, trade and business names (including rights in any get-up or trade dress), domain names, rights in domain names, copyright, database rights, unregistered design rights and all other similar proprietary rights in every case which may subsist in any part of the world including any registration of any such rights and applications and any rights to make applications for registration (“Intellectual Property Rights”) that belong to a Party, shall continue to belong to such Party. Subject to any rights granted herein or in any Services Agreement, each Party retains all right, title, and interest in and to its Intellectual Property Rights and each Party acknowledges that it neither owns nor acquires any rights in and to the other Party’s Intellectual Property Rights not expressly granted by this Master Services Agreement or a specific Services Agreement.
  2. Parties shall only acquire such rights of use and powers from the other Party as are explicitly granted in a specific Services Agreement
  3. Parties will not be permitted to remove from or change any designation to the other Party’s Intellectual Property Rights

6. TERM AND TERMINATION

  1. Term: This Agreement becomes effective on the date hereof and continues to be effective and valid as long as there will be any Services Agreement in effect.
  2. Sections that by their nature are meant to survive termination of the Agreement shall continue to be valid and binding upon Parties.
  3. Termination. Unless otherwise agreed in writing, either Party may terminate the Agreement with immediate effect, without incurring any liability for damages or penalties, and furthermore without altering or affecting terminating Party’s right to exercise any other remedies for breach, if:
    1. the other Party materially breaches a term or condition of this Agreement and fails to cure such breach within thirty (30) days of written notice specifying the breach;
    2. the other Party engages in any conduct which in the terminating Party’s reasonable judgment is detrimental to the good name, goodwill, reputation or intellectual property rights of the terminating party or its Affiliates, and fails to cease such conduct within two (2) days after the terminating party delivers written notice thereof to the other Party;
    3. the other Party is put into liquidation or has ceased to conduct its business;
    4. the other Party requests or obtains (provisional or permanent) suspension of payment or is declared bankrupt;
    5. the other Party loses command over its assets or part thereof due to seizure, by being placed under trusteeship or in any other way, and such command is not returned within 4 weeks after the loss thereof; and/or
    6. it should be reasonably accepted that the other Party can no longer meet its obligations under this Agreement.

7. CONFIDENTIALITY

  1. Except as expressly and unambiguously allowed herein, each Party will hold in confidence and not use or disclose any confidential or proprietary technical or business information of a Party, including without limitation: (a) financial statements and other financial information; (b) reporting information; (c) information on Intellectual Property Rights, (d) user data and (e) the terms of this Agreement, provided, however, that all of the information will be considered confidential only if it is conspicuously designated as “Confidential,” or if provided orally, identified at the time of disclosure as confidential SLA (any such information hereinafter referred to as “Confidential Information”) and Party will similarly bind its employees and contractors in writing.
  2. The receiving Party will not be obliged under this Section 7 with respect to information the receiving Party can document: (a) is or has become readily publicly available with restriction through no fault of the receiving Party or its employees or contractors; (b) was received without restriction from a third Party lawfully in possession of such information and lawfully empowered to disclose such information; (c) was rightfully in the possession of the receiving Party without restriction prior to its disclosure by the disclosing Party; (d) is independently developed by the receiving Party by employees without access to the other Party’s similar Confidential Information; or (e) is required by law or order of a court, administrative agency or other governmental body to be disclosed by the receiving Party.
  3. The Parties' obligations with respect to Confidential Information will continue for the Term and for two years thereafter.
  4. Each Party acknowledges that its breach of this Section 7 will cause irreparable injury to the other for which monetary damages might not be an adequate remedy. Accordingly, either Party may be entitled to seek injunctions and other equitable remedies in the event of such breach by the other.

8. PRESS RELEASES AND PUBLIC STATEMENTS

  1. Neither Party will issue any press releases or make public statements relating to this Agreement, the Services or the relationship between the Parties without the other Party’s review of and written consent to such press release or public statement. Such consent also applies to any subsequent press releases with respect to the same subject matter.
  2. Notwithstanding Section 8.1 hereof, Customer grants Turbobytes permission to:
    1. use the aggregate, anonymized performance data of all its customers, including Customer’s performance data, for research and development and for any publications, regardless the medium, for inter alia (without limitation) promotional activities, newsletters, white papers, surveys and other purposes.
    2. use Customer’s logo and/or name on the Turbobytes website and in Turbobytes’ sales and other presentations not targeted to the general public or media. Upon Customers’ reasonable notice Turbobytes shall as soon as reasonably possible cease the use of such logo and/or name.

9. BINDING EFFECT; ASSIGNMENT

  1. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns. Neither this Agreement nor any rights or obligations of the Parties hereunder may be assigned or transferred by either Party to a third party without the prior written consent of the other Party which consent shall not be unreasonably withheld.

10. FORCE MAJEURE

  1. No Party shall be deemed in default hereunder for any cessation, interruption or delay in the performance of its obligations due to causes beyond its reasonable control, including but not limited to: earthquake, flood, or other natural disaster, act of God, labour controversy, civil disturbance, war (whether or not officially declared) or the inability to obtain sufficient supplies, transportation, or other essential commodity or service required in the conduct of its business, or any change in or the adoption of any law, regulation, judgment or decree (each a “Force Majeure Event”). Each Party shall have the right to terminate the Agreement immediately upon written notice if any Force Majeure Event of another Party continues for more than thirty (30) days.

11. WAIVER; AMENDMENT; ENTIRE AGREEMENT

  1. No failure or delay on the part of any Party in exercising any right, power or remedy under this Agreement shall operate as a waiver, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise or the exercise of any other right, power or remedy. Unless otherwise specified, any waiver of any provision hereof shall be effective only if it is made or given in writing and signed by each Party.
  2. This Agreement can be amended or supplemented only by an instrument in writing signed by each of the Parties.
  3. This Agreement supersedes and overrides any and all other agreements, oral or written, between the Parties with respect to the transactions contemplated herein.

12. COMPLIANCE WITH LAWS

  1. Both Parties will comply with all material aspects of the laws and regulations applicable to the Services.

13. PARTIAL INVALIDITY

  1. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective only to the minimum extent necessary without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of such provisions in any other jurisdiction and Parties shall in good faith negotiate to replace the invalid / unenforceable provisions with valid / enforceable provisions.

14. GOVERNING LAW AND JURISDICTION

  1. This Agreement is to be governed by and construed in accordance with the laws of the Netherlands.
  2. All disputes arising in connection with the present contract, or further contracts resulting therefrom, shall be finally settled in accordance with the Arbitration Rules of the Netherlands Arbitration Institute (http://www.nai-nl.org/en/).
  3. The arbitral tribunal shall be composed of one arbitrator arbitrator. The place of arbitration shall be Amsterdam. The arbitral procedure shall be conducted in the English language.