I. 5U AI B.V., a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid) incorporated under the laws of the Netherlands, with registered office (statutaire zetel) in Rotterdam, the Netherlands, and its offices at Anthonetta Kuijlstraat 49 B, 3066GS Rotterdam, the Netherlands, registered at the Trade Register under number 97730726, (the "Provider");

and

II. The Customer, hereafter "Customer";

The Provider and the Customer are collectively referred to as the Parties and each individually as a Party.

WHEREAS:

A. The Customer is in the business of logistics and is seeking to use an AI-powered automation solution to improve the business processes to serve their customers and partners better and improve efficiencies (the ‘Purpose’); 

B. The Provider has built, and is in the business of providing for use, an AI-powered automation solution for logistics that can be used to support the operational shipment-lifecycle tasks (the ‘5U AI Solution’); 

C. The Customer has selected the Provider to provide access to the 5U AI Solution, which may be used by the Customer for the Purpose in relation to certain pre-defined systems and/or applications that are being used by the Customer (the ‘Permitted Purpose’); and 

D. The Parties now wish to enter into this Agreement to grant the Customer the right touse the 5U AI Solution for the Permitted Purpose during the agreed period and to enable the Customer to receive certain services provided by the Provider, subject to the terms of this Agreement.

NOW HEREBY AGREE AS FOLLOWS:

1 DEFINITIONS AND INTERPRETATION

1.1 Capitalised words and expressions used in this Agreement have the meanings set out in either Schedule 1, or elsewhere in any part of the Agreement, unless the context clearly requires otherwise. 

1.2 The below provisions concern construction and interpretation of this Agreement. 

(a) No provision of this Agreement shall be interpreted against a Party solely because that Party was responsible for the drafting of that particular provision.

(b) The headings used in this Agreement are included for reference purposes only and shall not affect the interpretation of this Agreement.

(c) In this Agreement:

(i) the singular includes the plural and vice versa, and each gender includes the other genders;

(ii) the words "as of" shall be deemed to include the day or moment in time specified thereafter;

(iii) a "third party" means any person or entity other than the Parties;

(iv) references to writing shall include any communication in the written form, whether by letter or a scanned and signed document sent by e-mail;

(v) the words "include", "including" and "includes" shall be deemed to be followed by the words "without limitation";

(vi) references to any time of the day are to CET time;

(vii) references to legislation are references to legislation as applicable at the time this Agreement was concluded; and

(viii) references to clauses, Schedules or Annexes are, unless otherwise indicated, references to clauses, Schedules or Annexes of or to this Agreement.

(d) This Agreement is drafted in the English language. Dutch terms and legal concepts are primarily expressed in English terms and not in their original Dutch terms. Such terms and legal concepts shall have the meaning attributed to them under the laws of the Netherlands and this Agreement should be read and interpreted accordingly.

2 SCOPE AND STRUCTURE

2.1 The Agreement sets out the terms that govern the provision of the 5U AI Solution and the Services by the Provider to the Customer and enable the Customer to make use thereof for the Permitted Purpose during, and to the extent agreed upon, the Term.

2.2 Any proposal, offer, order form, statement of work, change request, or any other document of whatever nature and under whatever name, on the basis of which the Provider shall deliver (any part of) the 5U AI Solution or Services, or any other products or services, to the Customer shall be governed by, and subject to, the terms of this Agreement and is to be interpreted in accordance with thisAgreement. This includes the Order Form being governed by and subject to the terms of this Agreement. 

2.3 If and insofar as the Provider makes products or services of third parties available to the Customer or grants access to these products or services, the terms of the third parties in question apply to these products or services and replace the provisions in any part of this Agreement that depart from those third party terms, provided that the Customer has been informed by the Provider about the applicability of those third party terms and the Customer has been given a reasonable opportunity to take note of these terms.  

3 TRIAL PHASE ARRANGEMENTS

3.1 In case a Trial Phase applies to the engagement agreed upon between the Parties, this shall be specified in the Order Form. During the Trial Phase, if applicable, the access and use of the Customer of the 5U AI Solution and the Services provided by the Provider for the Permitted Purpose shall be limited as described in the Order Form (‘Trial Permitted Purpose’).

3.2 Notwithstanding the nature and scope of the Succes Review specified in the Order Form, the Customer must make its own independent assessment of the 5U AI Solution, the Services  any of the other materials provided by the Providerand rely on the Customer’s own judgment in reaching any conclusion or decisions regarding the 5U AI Solution’s suitability for the (Permitted) Purposeand continuation of the engagement into production deployment as set forth in the Order Form. 

3.3 The 5U AI Solution provided under this Agreement for the Trial Permitted Purpose shall not include any updates, upgrades, new releases, or new versions of the 5U AI Solution or any other type of support, unless provided by the Provider at its sole discretion, and without being liable or responsible for such support.

3.4 The Customer acknowledges that the 5U AI Solution and the Services are provided by the Provider on a ‘As Is’ and ‘As Available basis during the Trial Phase with no deliverables and no performance KPIs being binding upon the Provider. The Provider is not obliged to correct any defects or inaccuracies in the 5U AI Solution, the Services or any of the other materials disclosed or made available by it under of in connection with this Agreement during the Trial Phase. 

3.5 Notwithstanding anything to the contrary, and to the extent permitted by law, for the duration of the Trial Phase, the Provider (i) does not give any warranty or representation whatsoever, (ii) explicitly excludes any and all liability (however and whatsoever arising) for, and in relation to, the 5U AI Solution, the Services, any support, or the consequences of their use, and (iii) is under no obligation or duty to indemnify the Customer for any third party claims that may concern, or relate to, the 5U AI Solution, the Services or any of the other support provided by the Provider.

3.6 Notwithstanding anything to the contrary, and to the extent permitted by law, either Party has a right to opt-out of this Agreement (by notice in writing) during the Trial Phase, if and to the extent agreed upon in the Order Form, in which case this shall consequently result in an early termination of this Agreement with immediate effect as of the last day of the Trial Phase. Neither Party shall be liable to the other Party for any costs and/or compensation in relation such opt-out, without prejudice to any fees or other amounts remaining to be paid by the Customer to the Provider in relation to the access and use of the 5U AI Solution and the Services during, and for, the Trial Phase.

4 5U AI SOLUTION AND SERVICES 

4.1 The Provider shall provide and make available the 5U AI Solution, as well as the Services (during the office hours if and when applicable to those Services), for the Term in accordance with the Order Form, subject to the assumptions and dependencies, and any other terms of this Agreement. 

4.2 The Customer is permitted to use the 5U AI Solution and to receive the Services as set out in the Order Form and in line with all other terms of this Agreement, including those relating to Intellectual Property Rights. This right of use is valid for the duration of the Agreement, as detailed in the Order Form, provided that the Customer shall only use the 5U AI Solution and the Services for the Permitted Purpose and not for the benefit of any third party.

4.3 The 5U AI Solution has been designed and developed in such a way by the Provider that it is sufficiently transparent and explainable and permits sufficient human oversight over the 5U AI Solution, taking account of the Permitted Purpose and any reasonably foreseeable misuse of the 5U AI Solution, in accordance with the Applicable Laws.

4.4 The Provider performs the Services with care to the best of its ability, where applicable in accordance with the arrangements and procedures agreed on with the Customer in writing. All Services provided by the Provider are performed on the basis of a best efforts obligation. If any arrangements have been made about a service level, the availability of software, systems and related services is always measured in such a way that unavailability due to preventive, corrective or adaptive maintenance service or other forms of service that the Provider has notified the Customer of in advance and circumstances beyond the Provider’s control are not taken into account. Subject to evidence to the contrary offered by the Customer, the availability measures by the Provider is considered conclusive.    

4.5 The Provider makes reasonable efforts, within reason, to comply to the greatest extent possible with the terms and delivery periods and/or dates and delivery dates, which always apply as target dates, do not bind the Provider and are always indicative. If a term or period of time is likely to be exceeded, the Provider and the Customer consult as to discuss the consequences of the term being exceeded in relation to further planning.  

4.6 The Customer acknowledges and agrees that the 5U AI Solution and the Services do not include:

(a) any services, systems or equipment required to access the internet (and that the Customer is solely responsible for procuring access to the internet and for all costs and expenses in connection with internet access, communications, data transmission and wireless or mobile charges incurred by it in connection with use of the 5U AI Solution or Services);

(b) dedicated data back up or disaster recovery facilities (and the Customer should ensure it at all times maintains backups of all Customer Data); 

(c) any obligation on the part of the Provider to perform data conversion unless this has been explicitly agreed on with the Customer in the Order Form or otherwise in writing; and

(d) legal, accounting or other professional or regulated services and that, except as expressly stated in this Agreement, no assurance is given that the 5U AI Solution or the Services will comply with or satisfy any legal or regulatory obligation of the Customer or any (other) entity or person.

4.7 Notwithstanding anything set out in this Agreement, each and every part of the 5U AI Solution and the Services are provided or performed on an “as is” and “as available” basis, each in accordance with the Order Form, and the Customer’s use of the 5U AI Solution and the Services is solely at its own responsibility and risk. 

5 CHANGES TO THE 5U AI SOLUTION OR SERVICES

5.1 Changes to the Solutions or Services shall be dealt with in accordance with this clause 5. 

5.2 Where the Customer or the Provider wishes to make a material change to this Agreement, whether in order to include an additional solution and/or service, function or responsibility to be performed by the Provider for the Customer under this Agreement or otherwise amend the 5U AI Solution and/or Services, the Customer may at any time request, and the Provider may at any time recommend, such change. A note which details the impact of a proposed material change on any part of this Agreement (the ‘Change Request’) shall be submitted by the Party requesting the change to the other Party. Such change shall be agreed by the Parties only once the Change Request is signed by both Parties.Until such change is made, the Customer and the Provider shall, unless otherwise agreed in writing, continue to perform this Agreement in compliance with its terms and conditions prior to such change.

5.3 Any change to the Solution and Services, or other work, provided or performed by the Provider at the request of the Customer which have not been agreed by means of a Change Request shall be charged to the Customer at the Provider’s standard rates from time to time in force.

5.4 Notwithstanding clause 5.2 and 5.3, the Customer acknowledges that the Provider shall be entitled to modify the features and functionality of the 5U AI Solution and Services. The Provider shall use reasonable endeavours to ensure that any such modification does not materially adversely affect the use of the relevant 5U AI Solution and Services by the Provider’s customers generally. The Provider may, without limitation to the generality of this clause 5.4, establish new limits on the 5U AI Solution or Services (or any part), including limiting the volume of data which may be used, stored or transmitted in connection with it, remove or restrict application programming interfaces or make alterations to data retention periods, provided such changes are introduced by an update to the relevant impacted contractual documents. The Provider shall comply with its related obligations in relation to the ‘Use of Customer Data’, ‘Data Protection and Data Processing’ and ‘Compliance with law and Changes in law’ under this Agreement.

6 PROVIDER WARRANTIES

6.1 The Provider warrants, subject to this Agreement, to the Customer that:

(a) it has the right, power and authority to enter into this Agreement, has duly authorised, executed and delivered this Agreement and this Agreement is valid, binding and legally enforceable against the Provider;

(b) it has the rights to (i) grant to the Customer the rights contemplated in this Agreement, and (ii) provide the 5U AI Solution and the Services;

(c) the 5U AI Solution and Services do not and shall not infringe the Intellectual Property Rights of any third party; and

(d) the 5U AI Solution and the Services shall operate in accordance with the Order Form, taking into account the assumptions and dependencies set out therein, when used by the Customer in accordance with, and during, this Agreement for the Permitted Purpose under normal use and normal circumstances.

6.2 Other than set out in this clause 6 and to the extent permitted by law, the Provider does not make and hereby disclaims and excludes all warranties, conditions or undertakings, including but not limited to, any implied or statutory warranties, conditions or undertakings including the implied or statutory warranties, conditions or undertakings of merchantability or satisfactory quality, fitness for a particular purpose (including the Purpose and the Permitted Purpose) or ability to achieve a particular result. 

7 CUSTOMER RESPONSIBILITIES

7.1 The Customer warrants to the Provider that it has the right, power and authority to enter into this Agreement, has duly authorised, executed and delivered this Agreement and this Agreement is valid, binding and legally enforceable against the Customer. 

7.2 The Customer shall at its own cost provide or procure for the Provider, in each case as is reasonably necessary for the Provider to perform its obligations under this Agreement:

(a) access to the Customer’s premises and facilities;

(b) access to Customer Environment, Customer Software, Customer systems and Customer Data; 

(c) any Customer Materials and Customer Environment to meet the specifications and any other requirements prescribed or recommended by the Provider; and

(d) relevant information, instructions and assistance, including reasonable access to and cooperation by Customer personnel, and ensure all such information, instructions and assistance is accurate and complete.

7.3 The Customer shall ensure that (including any part of) the Customer Environment, Customer Software, Customer systems, Customer Data, as well as any computer and operating system and any other hardware or software, which the Provider is asked by the Customer to use or modify for the purposes of performing the Provider’s obligations is either the property of the Customer or is legally licensed to the Customer or it is otherwise validly entitled to it, and that the Provider is authorised to use the same.

7.4 The 5U AI Solution and the Services are provided at the Customer’s request and the Customer is responsible for ascertaining that the 5U AI Solution and the Services are suitable for its own needs. This entails (amongst others) that: 

(e) The Provider is not responsible, nor liable, for any damage or other consequences caused by or resulting from interrupted, limited or no availability of Customer Software, Customer systems or Customer Data following the Customer’s use in any way of the 5U AI Solution and the Services; 

(f) the Customer acknowledges and accepts that the 5U AI Solution and the Services may be subject to delays, interruptions, errors (including errors) or other problems inherent in a artificial intelligence solution and that the Provider shall have no liability for any such delays, interruptions, errors or other problems; and

(g) except to the extent expressly referred to as compatible by the Provider, the Customer shall ascertain that the 5U AI Solution and the Services are compatible with any other software or service or with any hardware or equipment, including the systems in use stated in the Order Form.

8 FEES, INVOICING AND PAYMENT

8.1 The Provider shall invoice the Customer for all sums due under this Agreement in accordance with the Order Form or any other document subsequently agreed upon between the Parties (the ‘Fees’). All Fees are exclusive of turnover tax (VAT) and other product or services-specific levies imposed by the authorities. All Fees are in euros and the Customer must pay in euros, unless explicitly agreed upon otherwise in writing by the Parties. 

8.2 The Customer cannot derive any rights or expectations from any cost estimate or budget issued by the Provider, unless the Parties have explicitly agreed otherwise in writing. A budget communicated by the Customer is only considered a (fixed) price agreed on by the Parties if this has explicitly been agreed in writing. 

8.3 The Provider shall be entitled to increase the Fees for the 5U AI Solution and any and all Services, at any time by prior written notice, provided that the Provider shall not be entitled to increase the Fees on less than six weeks prior notice or more than once every 12 months.

8.4 Any sums due are paid by the Customer in accordance with the payment terms agreed on or as stated in the invoice. Payment is non-refundable. The Customer must pay all sums that it owes to the Provider under this Agreement without any set-off, counterclaim, deduction or withholding of any kind.

9 INTELLECTUAL PROPERTY RIGHTS

9.1 The Customer acknowledges and agrees that, as between the Customer and the Provider, all Intellectual Property Rights subsisting in the 5U AI Solution and the Services, and any output resulting from either of it, are and shall remain the property of the Provider. The Customer is solely granted the rights of use laid down in this Agreement and in the mandatory provisions of the Applicable Laws. 

9.2 In consideration of the Fees, the Provider hereby grants the Customer a non-exclusive, non-transferable, non-pledgeable, non-sublicensable and irrevocable (except in the event of termination or expiry of the Agreement) licence, for the Term of the Agreement, to access, use the 5U AI Solution and the Services, and any output resulting from either of it, for the Permitted Purpose and in accordance with the provisions of this Agreement.  

9.3 The Customer grants the Provider a non-exclusive, non-transferable and royalty-free licence to use the Customer Materials, including the Customer Software and the Customer Data, and to permit any subcontractor of the Providerto use the same subject to the same restrictions as under this Agreement, for the Term, to the extent necessary to enable the Provider to provide the 5U AI Solution and the Services and otherwise perform its obligations under this Agreement. 

9.4 The Provider is entitled to use the Customer’s logo on the Provider’s website in a list of its customers. 

9.5 Except to the extent set out in this Agreement, no Intellectual Property Rights of either Party are transferred or licensed as a result of this Agreement. This includes that neither the Provider nor the Customer shall use any Intellectual Property Rights of the other Party – without its prior written consent - to the extent contrary to this Agreement or the Applicable Laws.

10 USE OF CUSTOMER DATA

10.1 The Provider acknowledges and agrees that as between the Provider and the Customer, all rights, title to and interest in the Customer Data are and shall remain the exclusive property of the Customer and the Customer Data is Customer Confidential Information for the purposes of clause 13 and this Agreement.

10.2 The Provider shall not acquire any right, title or interest in or to the Customer Data except as explicitly provided in this Agreement. The Customer hereby grants the Provider a limited, non-exclusive and worldwide licence to use the Customer Data for the duration of the Agreement, solely to the extent required for the Provider to provide the 5U AI Solution and the Services and otherwise perform its obligations to the Customer in accordance with the provisions of this Agreement and for no other purpose. Notwithstanding the foregoing, the Provider may use any feedback and suggestions provided by the Customer for improvement of, or relating to, the 5U AI Solution or the Services without charge or limitation.

10.3 Without prejudice to clause 11, the Provider may use the Customer Data to develop, provide and maintain (including training, validation, finetuning and testing) its 5U AI Solution and the Services, including any part of it, for its own benefit generally and for the benefit of the Customer in accordance with this Agreement. If and to the extent (any part of) these activities would qualify the Provider (in whole or in part) as a data controller within the meaning of the Applicable Laws, including the GDPR, the Provider shall comply with any right or obligation of a data controller within the meaning of the Applicable Laws. 

11 DATA PROTECTION AND DATA PROCESSING

11.1 Each Party shall carry out its data processing activities in accordance with this Agreement in compliance with its respective obligations under (i) the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation or ‘GDPR’)), and (ii) any other Applicable Laws (including any local implementation of the GDPR) relating to the processing, privacy and/or use of personal data.

11.2 The Customer warrants towards the Provider that it acts in compliance with the GDPR, that its systems and infrastructure are at any time appropriately secured and that the content, the use and/or the processing of the Customer Data, whether including personal data or not, are not unlawful and do not breach any third party rights. 

11.3 The Provider qualifies as a ‘Controller’ within the meaning of the GDPR (‘Data Controller’), or such equivalent Applicable Laws, and shall process personal data, as needed in light of this Agreement, in accordance with the 5U AI  privacy policy located at Privacy Policy – 5U AI . The Customer acknowledges that the Provider will, by virtue of the performance of this Agreement, come into possession of Customer Data, including Business Contact information as a Data Controller. The Customer acknowledges and agrees that the Provider, and any of its Affiliates and subcontractors, may use, transfer or otherwise process such Customer Data in accordance with this clause 11 for purposes (i) necessary in light of this Agreement and/or for purposes related to this Agreement. Business Contact Information means business contact data which may include personal and/or private information, including first name, last name, business phone numbers, business email, business address and/or user name, of the Customer and any of its (business) contacts. 

11.4 If and to the extent any personal data processing (including of Customer Data) may take place in accordance with this Agreement, by which - within the meaning of the GDPR - the Customer would qualify as a ‘Controller’ (‘Data Controller’) and the Provider would qualify as a ‘Processor’ (“Data Processor’), Parties shall act in accordance with the GDPR and enter into a mutually acceptable data processing agreement in view of the requirement under article 28 paragraph 3 GDPR (‘DPA’). In such event, each Party shall specifically comply with its respective obligations, and may exercise its respective rights and remedies, under such DPA.

12 COMPLIANCE WITH LAW AND CHANGES IN LAW

12.1 Each Party shall comply with the Applicable Laws in its performance under this Agreement. This includes each Party complying with applicable export/re-export, sanctions, import and customs laws and regulations (including U.S., UK and/or EU sanctions and export regulations) (‘Sanctions Laws’). A Party will not be listed on, nor owned or controlled by an entity or person which is subject to, nor located in or organized under the laws of a country subject to, U.S., UK or EU embargo. The Customer shall be solely responsible for ensuring its access, importation or use of the 5U AI Solution or the Services in or into any part of the territory in which it resides or operates complies with all export laws.

12.2 Any obligation of the Provider under this Agreement to comply or ensure compliance by any person or the 5U AI Solution or the Services with any law shall be limited to the Applicable Laws that apply solely to the Provider. Such obligations shall not be construed to create any obligation on the Provider (or anyone acting on its behalf) or any part of the Services to comply with any laws or regulations which apply to the Customer, or any (other) specific commercial or other activities that do not apply to the Provider or any of its activities. 

12.3 The Parties recognise that the Applicable Laws, together with any recently adopted or future European legislation (for example the EU AI ACT, the NIS2 directive, the Cyber Resilience Act and the Data Act ) or any local equivalent legislation, which may or could be relevant to the provision or use of the 5U AI Solution and the Services, or any part thereof, could necessitate a change of this Agreement. In case thereof, at the request of either Party, the Parties shall consult each other to identify and establish any required change, and the implications thereof, for this Agreement. 

13 CONFIDENTIAL INFORMATION

13.1 Each Party agrees that it shall use the other Party’s Confidential Information only in the exercise of its rights and performance of its obligations under this Agreement and shall not disclose it except in accordance with this clause 13.

13.2 Subject to clause 13.5, clause 13.1 shall not apply to the extent that such information is:

(a) already known to or in possession of the receiving Party prior to its disclosure;

(b) publicly available at the time of its disclosure or becomes publicly available through no wrongful act of the receiving Party;

(c) rightfully received from a third party without obligation of confidentiality;

(d) independently developed by the receiving Party without breach of this Agreement or access to the applicable Confidential Information of the other Party; or

(e) is approved for release upon the written permission of the disclosing Party.

13.3 Subject to clause 13.5, a Party may disclose the other Party’s Confidential Information: 

(a) to those of its (or its Affiliate’s) employees, officers, advisers, agents or representatives who need to know it in order to exercise a Party’s rights or perform its obligations under this                                                                                                                                                       Agreement, provided that such Party shall ensure that each of its employees, officers, advisers, agents or representatives to whom Confidential Information is disclosed is aware of its confidential nature and complies with this clause 13, as if it were a party, or

(b) as required by law, any court, any governmental, regulatory or supervisory authority or any other authority of competent jurisdiction. 

13.4 The Customer acknowledges that the 5U AI Solution, and any other software made available by the Provider, is always confidential in nature and that the 5U AI Solution and any other software contains trade secrets of the Providerand its Providers or of the producer of the software. 

13.5 To the extent any Confidential Information is Personal Data as defined in the Applicable Laws, such Confidential Information may be disclosed or used only to the extent such disclosure or use does not conflict with any of the rights and obligations defined therein or otherwise in this Agreement.

14 LIMITATION OF LIABILITY AND INDEMNITIES

14.1 The Provider’s total liability for an imputable failure in the performance of the Agreement or arising from any other legal basis whatsoever and howsoever, explicitly including each and every failure to meet a warranty, guarantee or indemnification obligation agreed on with the Customer, is limited to the compensation of damages as described in more detail in this clause 14.                                                                                                                                                                                                                                              

14.2 Subject to clause 14.3, the Provider’s total liability (howsoever arising, including contractual or non-contractual, e.g. an unlawful act or other tort) towards the Customer under or in connection with this Agreement shall be limited to, whichever is higher, (a) EUR 10,000.- (in words: ten thousand euros), or (b) 100% (in words: hundred percent) of the total Fees paid or due and payable during the twelve (12) month period prior to the first cause of action giving rise to the relevant claim or series of connected claims, or, if the first cause of action takes place within the first twelve (12) months of this Agreement, the agreed budgeted amount payable by the Customer under the Agreement for that first twelve (12) months. In no event does the Provider’s total liability for any type of damage, on any legal basis whatsoever, exceed EUR 50,000.- (in words: fifty thousand euros).

14.3 Liability for any indirect damage, consequential loss, loss of orders or other contracts, loss of profits, loss of savings, reduced goodwill, loss due to business interruption, loss as a result of claims of the Customer’s customers or other users, loss arising from the use of products, materials or software of third parties prescribed by or in use by the Customer and any damage and loss arising from contracting Providers that the Customer has recommended to the Provider is excluded. Liability for corruption, destruction or loss of data (including Customer Data) or documents is also excluded.

14.4 The exclusions and limitations of the Provider’s liability described in clauses 14.2 and 14.3 are without prejudice whatsoever to the other exclusions and limitations of the Provider’s liability described in this Agreement.

14.5 The exclusions and limitations referred to in clauses 14.2 up to and including 14.4 cease to apply in and insofar as the damage is caused by intent or deliberate recklessness on the part of the Provider’s management. 

15 TERM AND TERMINATION

15.1 This Agreement commences on the date of the signature of the Order Form and shall continue for a consecutive period of 2 years (‘Initial Term’) after which it shall be tacitly extended each time by the period initially agreed upon with a maximum of one (1) year (‘Renewal Term’, together with the Initial Term referred to as the ‘Term’), unless the Customer or the Provider should terminate this Agreement by serving written notice of termination (opzeggen) by taking into account a notice period of three (3) months prior to the end of the relevant period, or a Party has already terminated earlier in accordance with this Agreement.

15.2 Termination for breach: a Party may only terminate for breach (‘ontbinden’)this Agreement at any time by giving notice in writing to the other Party if:

(a) the other Party commits a material breach of this Agreement and such breach is not remediable;

(b) the other Party commits a material breach of this Agreement which is not remedied within twenty (20) Business Days of receiving written notice of such breach;

(c) the other Party has failed to pay any amount due under this Agreement on the due date and such amount remains unpaid within thirty (30) days after the other Party has received notice that the payment is overdue; 

(d) any consent, licence or authorisation held by the other Party is revoked or modified such that the other Party is no longer able to comply with its obligations under this Agreement or receive any benefit to which it is entitled; or

(e) if the notifying Party reasonably determines that the other Party is not in compliance with clause 12.1 or is causing the Party to be exposed to violations under Sanction Laws.

15.3 Termination due to financial difficulties: a Party may terminate this Agreement (‘opzeggen’), without being liable for any cost or compensation as a result thereof nor being obliged to repay any sums received, for any of the following grounds with immediate effect at any time by giving notice in writing to the other Party if that other Party:

(a) stops carrying on (or indicates its intent to do so) all or a significant part of its business;

(b) is unable to pay its debts or if the non-defaulting Party reasonably believes that to be so;

(c) becomes subject to insolvency proceedings; or has a receiver, manager, administrator or administrative receiver appointed over all or any part of its undertaking, assets or income;

(d) has a resolution passed, a petition presented to any court, or an application made for an administration order for its winding up, or any of the foregoing is made against it;

(e) is subject to any procedure for the taking control of its goods that is not withdrawn or discharged within seven (7) calendar days of that procedure being commenced;

(f) has a freezing order made against it; or

(g) is subject to, or takes any steps in anticipation of, any procedures, events or circumstances described, or analogous to those in clauses a to f in any jurisdiction.

15.4 Termination due to change of Control: a Party may terminate this Agreement with immediate effect on giving notice to the other Party if the other Party undergoes a direct change of Control or if it is realistically anticipated that it shall undergo a change of Control within two (2) months, each without such notifying Party being liable for any costs or compensation, or being obliged to repay any sums received. 

16 CONSEQUENCES OF TERMINATION

16.1 If, at the time of termination for breach in accordance with this Agreement, the Customer has already received products or services in the performance of this Agreement, this performance and the relevant payment obligations cannot be undone unless the Customer proves that the Provider is in default with respect to the essential part of the performance due. With due regard to the provisions of the preceding sentence, sums invoiced by the Provider prior to the termination for breach in connection with what has already been properly performed or delivered in the performance of the Agreement remain due in full and become immediately payable at the time of the termination. 

16.2 In relation to expiry or termination of this Agreement, or any part thereof, the Customer may request the Provider to provide exit assistance to the extent deemed reasonably feasible by the Provider and at reasonable terms to be mutually agreed by the Parties. 

16.3 Upon expiry or termination of the Agreement, whatever the cause and manner, any rights granted by the Provider to the Customer under the Agreement shall automatically cease to exist. The Customer shall discontinue the use of the 5U AI Solution and the Services and return any Provider Materials, including Provider Software, to the Provider at its first request.

16.4 Termination or expiry of this Agreement shall not affect any accrued rights and liabilities of either Party at any time up to the date of such termination or expiry and shall not affect any provision of this Agreement that is expressly or by implication intended to continue beyond termination or expiry. This includes the following provisions: clause 3.6 (Trial Phase opt-out), clause 9 (Intellectual Property Rights), clause 10 (Use of Customer Data), clause 11 (Data Protection and Data Processing), clause 13 (Confidential Information), clause  14(Limitation of liability and indemnities) and 16 (Consequences of termination)

17 OTHER PROVISIONS

17.1 Order of priority: In the event of any conflict or inconsistency between different parts of this Agreement, the following descending order of priority applies (whereby a later version of a document prevails over an earlier version of it): 1. the terms and conditions in the main body of this Agreement; 2. the Proposal; and 3. any (other) appendices, annexes, schedules, attachments or other documents being (made) part of this Agreement, either by reference or otherwise. 

17.2 Entire agreement: This Agreement constitutes the entire agreement between the Parties and, except to the extent it concerns the Proposal and the NDA, supersedes all prior negotiations, arrangements or agreements related to the subject matter hereof, either written or oral. Notwithstanding the foregoing, prior or contemporaneous discussions, negotiations, proposals, agreements, understandings and arrangements, may be relied upon by the Parties, albeit solely to interpret the meaning of, or right or obligations, under this Agreement in case of unclarity.

17.3 General terms and conditions: Any general terms and conditions used or applied by the Customer, albeit purchase terms or other terms, are not applicable to either this Agreement, nor to any Order Forms, offers and proposals made to or by the Customer in relation to this Agreement or the subject matter thereof, nor to any other agreements and/or legal relationships between the Customer and the Provider resulting from or in connection with this Agreement, each unless expressly stipulated otherwise and agreed upon in writing by the Parties in this Agreement.  

17.4 Severability: Each clause of this Agreement is severable and distinct from the others. If any clause in this Agreement (or part thereof) is or becomes illegal, invalid or unenforceable by law, but would be legal, valid and enforceable if the clause or some part of it was deleted or modified (or the duration of the relevant clause reduced): the relevant clause (or part thereof) will apply with such deletion or modification as may be required to make it legal, valid and enforceable; and without limiting the foregoing, in such circumstances the parties will promptly and in good faith seek to negotiate a replacement provision consistent with the original intent of this Agreement as soon as possible.

17.5 No waiver: No failure, delay or omission by either Party in exercising any right, power or remedy provided by law or under this Agreement shall operate as a waiver of that right, power or remedy, nor shall it preclude or restrict any future exercise of that or any other right or remedy. No single or partial exercise of any right, power or remedy provided by law or under this Agreement shall prevent any future exercise of it or the exercise of any other right, power or remedy.

17.6 Independent contractors: The Parties are independent businesses and are not partners, principal and agent or employer and employee and this Agreement does not establish any joint venture, trust, fiduciary or other relationship between them, other than the contractual relationship expressly provided for in it. None of the Parties shall have, nor shall represent that they have, any authority to make any commitments on the other Party’s behalf.

17.7 Third party rights: Except as expressly provided for in this Agreement, a person who is not a Party to this Agreement shall not have any rights under this Agreement or by law to enforce any of the provisions of this Agreement.

17.8 Assignment and sub-contracting: Except as expressly provided in this Agreement, the Provider may at any time assign, sub-contract, sub-licence (including by multi-tier), transfer, mortgage, charge, declare a trust of or deal in any other manner with any or all of its rights or obligations under this Agreement. Except as expressly provided in this Agreement, the Customer shall not assign, sub-contract, sub-licence, transfer, mortgage, charge, pledge, declare a trust of or deal in any other manner with any or all of its rights or obligations under this Agreement (including the licence rights granted), in whole or in part, without the Provider’s prior written consent (which consent shall not be unreasonably withheld). 

17.9 Force majeure: neither Party shall have any liability under or be deemed to be in breach of this Agreement for any delays or failures in performance of this Agreement which result from force majeure (within the meaning of article 6:75 BW of the Dutch Civil Code). Circumstances beyond the Provider’s control shall include, among other things: (i) circumstances beyond the control of the Provider’s Providers, (ii) the failure by the Provider to properly meet obligations that were contracted by the Provider on the Customer’s instructions, (iii) defects in products, hardware, software or materials of third parties that the Provideruses on the Customer’s instructions, (iv) measures by the public authorities, (v) power failures, (vi) failures of the Internet, data network or telecommunication facilities, (vii) (cyber)crime, (cyber)vandalism, war or terrorism and (viii) general transport problems. The Party affected by such a force majeure event shall promptly notify the other Party in writing when such an event causes a delay or failure in performance and when it ceases to do so. If such an event continues for a continuous period of more than three (3) months, either Party may terminate this Agreement (’opzeggen’) by written notice to the other Party.

17.10 Validity: This Agreement is valid and in force once signed by an authorised representative of each Party. This agreement reflects the valid and binding obligations of the Parties, of which the performance is enforceable in accordance with its provisions.

17.11 No variation unless in writing & duly signed: No variation of this Agreement shall be effective unless made in writing, signed by or on behalf of the parties and expressed to be such a variation.

17.12 Counterparts: This Agreement may be entered into in any number of counterparts and by each of the Parties on separate counterparts, but shall not be effective until each Party has executed at least one counterpart. Each counterpart, when executed, shall constitute an original, but all the counterparts shall together constitute one and the same instrument.

18 GOVERNING LAW AND DISPUTE RESOLUTION

18.1 This Agreement, and all rights and obligations arising out of or in connection with this Agreement, including any non-contractual obligations, shall be exclusively governed by and construed in accordance with the laws of the Netherlands.

18.2 All disputes that may arise out of or in connection with this Agreement, including disputes concerning its existence and validity, shall be submitted to the competent court of Rotterdam, the Netherlands.

SCHEDULE 1 DEFINITIONS 

Affiliate

means any company or other entity, whether or not a legal person, which directly or indirectly Controls, is Controlled by or is under joint Control with a Party. 

Agreement

means this main agreement, including any schedules and annexes hereto as well as any order forms or statements of work entered into;

Applicable Laws

means as applicable from time to time: 

a)​any laws, regulations or other subordinate legislation; and

b)​any legally binding policies, guidelines or industry codes made by any regulatory body having jurisdiction over a party or any of that party’s assets, resources or business;

which apply to the provision or performance of the 5U AI Solution or Services, or to which either Party is subject, provided that in case of the Customer it has explicitly informed the Provider thereof and been agreed to by the Provider prior to the 5U AI Solution or Services being provided.

Confidential Information 

means any and all confidential information, data or other materials (whether in oral, written or electronic form) including technical or other imparted in confidence or disclosed by one Party to the other or otherwise obtained by one Party including and/or relating to the other’s business, finance or technology, know-how, Intellectual Property Rights, trade secrets, assets, strategy, products, solutions, services and customers, including information relating to (i) the terms, execution and/or performance of this Agreement, (ii) management, (iii) financial, marketing, (iv) technical and (v) other arrangements or operations of any person, firm or organisation associated with that Party.

Control

For this purpose and the Agreement, a Party is deemed to Control a company or entity if it (a) owns or directly or indirectly controls at least fifty per cent (50%) of the capital of the other company, or (b) in the absence of the ownership of at least fifty per cent (50%) of the capital of a company or entity, substantially has the power to direct or cause the direction of the management and policies of such company or entity.

Customer Affiliate

means any Affiliate of the Customer. 

Customer Data

means all data, information, and other materials in any form (including derivatives) relating to the Customer, any Customer Affiliate or any of their customers and which may be accessed, generated, collected, stored or transmitted by the Provider (or any Provider contractor) in the course of its performance of the Agreement.

Customer Environment 

means any network and network devices, servers, server hardware, storage systems, computer systems, file systems, print systems, applications, software or software components, database management systems and related systems, used by the Customer from time to time with which the 5U AI Solution or the Services shall connect, exchange data, interface or otherwise interoperate or communicate, and to the extent explicitly authorised by the Provider. 

Customer Materials

means any Customer Software, Customer Data, calculations, algorithms, methods, information and other materials created or supplied by the Customer.

Customer Responsibilities

means any obligation of the Customer under this Agreement.

Customer Software

means all computer programs and applications and related materials owned, licensed or used by the Customer in relation to the 5U AI Solution or the Services, including any third party software and excluding the 5U AI Solution, the Services and the Provider Materials.

Intellectual Property Rights 

means copyright, patents, rights in inventions, rights in confidential information, Know-how, trade secrets, trademarks, service marks, trade names, design rights, rights in get-up, database rights, rights in data, semi-conductor chip topography rights, mask works, utility models, domain names, rights in computer software and all similar rights of whatever nature and, in each case: (i) whether registered or not, (ii) including any applications to protect or register such rights, (iii) including all renewals and extensions of such rights or applications, (iv) whether vested, contingent or future and (v) wherever existing.