====== Section 22-28 ======
===== 22. Force majeure =====
22.1 A Party shall not be deemed to be in breach of any of its
obligations, guarantees, or warranties under these General
Terms, the Agreement or the LeaseWeb Policies if, and to the
extent that, performance is prevented or delayed by an event
of Force Majeure, provided that the Party that is affected by the
event of Force Majeure has:
a) promptly notified the other Party thereof in writing, as soon
as reasonably possible and no later than five (5) Business
Days after the first occurrence of the Force Majeure event;
and \\
b) provided the other Party with all information on the event of
Force Majeure and the (expected) cessation or termination
of said event.
22.2 The Party that is affected by an event of Force Majeure shall
use all reasonable endeavors to avoid or minimize the effects of
an event of Force Majeure on its performance of its obligations
under the Agreement.
22.3 Upon the occurrence of an event of Force Majeure, the time for
performance shall be extended for the period of delay or
inability to perform due to such occurrence, but if an Event of
Force Majeure continues for a continuous period of more than
sixty (60) days the other Party shall be entitled to terminate the
Agreement.
===== 23. Confidentiality =====
23.1 A Receiving Party shall: (i) keep all Confidential Information
confidential, (ii) not disclose any Confidential Information to
any other person without the prior written consent of the
Disclosing Party, and (ii) only use and reproduce the
Confidential Information for the performance of its obligations
under the Agreement.
23.2 The obligations contained in Section 23.1 shall not apply to any
Confidential Information which: (i) at the date of the
Agreement is, or at any time after the date of the Agreement
becomes, public knowledge other than through breach of the
Agreement by the Receiving Party; (ii) can be shown by the
Receiving Party to the reasonable satisfaction of the Disclosing
Party to have been known to the Receiving Party prior to it
being disclosed by the Disclosing Party to the Receiving Party;
or (iii) is required to be disclosed or used by law.
23.3 The Receiving Party agrees that any and all notes, diagrams,
descriptions, memoranda and other writings or electronic
information obtained from the Disclosing Party and any copies,
notes or excerpts thereof containing Confidential Information
shall remain the property of the Disclosing Party and that said
documents shall, upon request of the Disclosing Party and at
the Disclosing Party’s option, be promptly returned to the
Disclosing Party or destroyed upon any termination of any
underlying contract.
===== 24. Transfer of rights and obligations =====
24.1 Without prejudice to Section 24.2 and 24.3, neither Party shall
be entitled to assign or transfer, or purport to assign or
transfer, any rights or obligations under the Agreement to a
third party without the prior written consent of the other Party,
which consent may not be unreasonably withheld.
24.2 LeaseWeb shall be entitled to assign any of its rights or
obligations under the Agreement to an Affiliate (or its or their
successors, through merger or acquisition of substantially all of
their or its assets), upon giving written notice to Customer.
24.3 LeaseWeb shall be entitled to sub‐contract any or all of its
obligations under the Agreement to a third party, provided that
LeaseWeb shall remain liable to Customer for the performance
of those obligations.
24.4 Nothing in the Agreement shall exclude or limit LeaseWeb’s
rights to grant or create a right of pledge or other security right
‐ for the benefit of a bank or other financial institution or other
third party – on or over any or all (cash) receivables that
Customer owes or comes to owe to LeaseWeb.
===== 25. Notices =====
25.1 Unless specified otherwise herein, any notice, demand, claim or
other communication under or in connection with the
Agreement shall be in writing and shall be delivered personally
or sent by registered mail or by prepaid recorded courier
delivery or by fax or by e‐mail, to the Party due to receive the
notice at its address set forth below or such other address as
any Party may specify by notice in writing to the other:
If to LeaseWeb
to the LeaseWeb entity and at the address as specified in the Order Form, for the attention of the Board;
with a copy directed for the attention of the Legal Department,\\ by fax to: +31 (0)20 316 2890; or\\ by e‐mail to: legal@leaseweb.com
If to Customer
to the person and at the address as specified in the Order Form or the\\ Customer Details Form
25.2 In the absence of evidence of earlier receipt, any such notice,
demand, claim or other communication shall be deemed to
have been received:
a) if delivered by hand, at the time of delivery; \\
b) if posted, on the expiration of three (3) Business Days after
the notice has been provided to the courier company; \\
c) if sent by facsimile, on the date confirmation of successful
transmission is received; or \\
d) if sent by e‐mail, the moment the e‐mail has been received
on or by a mail server or mail exchanger used or operated by
the receiving Party.
25.3 For the purpose of Section 25.2d) any failure to deliver ‐and any
impossibility to receive or access‐ a notice, demand, claim or
other communication shall be for the risk and account of the
receiving Party, if and to the extent that such failure or
impossibility is related to ‐or the result of‐ an act or omission of
the receiving Party, a failure of the mail server or mail
exchanger used or operated by the receiving Party, or a failure
or interruption in the services of a third party that manages or
hosts of the mail server or mail exchanger used or operated by
the receiving Party.
===== 26. Miscellaneous =====
26.1 No waiver of any of the terms of the Agreement or of any
breach of those terms shall be effective unless such waiver is in
writing and signed by the waiving Party. No waiver of any
breach shall be deemed to be a waiver of any other or
subsequent breach.
26.2 Other than LeaseWeb’s subcontractors who shall have the
benefit of the Agreement, nothing in the Agreement shall
confer upon any third party any right, benefit or remedy of any
nature under the Agreement.
26.3 Nothing in the Agreement shall result in the transfer of a Party’s
Intellectual Property Rights (of whatever nature) to the other
Party.
26.4 Neither Party shall be authorized to (i) make press or public
announcements relating to this Agreement, without the prior
written approval of the other Party, or to (ii) use the other
Party’s Intellectual Property Rights in any advertising, sales,
promotions, or other publicity materials. However, LeaseWeb
shall ‐ without Customer’s approval ‐ be entitled to inform third
parties that LeaseWeb provides Services to Customer, e.g. as a
Customer case during sales activities and on LeaseWeb’s
website.
26.5 Should any or several of the provisions of the Agreement be
invalid or null on void, this shall not affect the remaining
provisions thereof. In such event, the relevant provision shall be
replaced by a valid provision that reflects, to the extent
possible, the purpose and the intended effect of the original
provision.
===== 27. Governing law and dispute resolution =====
27.1 These General Terms, the Agreement and all matters arising
there from or connected therewith are governed by the laws of
the Commonwealth of Virginia, with the exclusion of the
provisions of the UN Convention on Contracts for the
International Sale of Goods, and without giving any effect to
this state’s or any other jurisdiction’s conflict of law principles.
27.2 The parties shall exercise their best efforts to settle any
Disputes. Any Dispute between the parties will be decided: (i)
first by the technical and administrative points of contact for
this Agreement. If satisfactory resolution is not achieved, then
(ii) by senior management of the parties. Dispute discussions
between senior management shall continue for a period of no
less than ten (10) days. If satisfactory resolution is not achieved,
then (iii) by the originating party’s initiation of mediation which
shall take place in Manassas, Virginia. or any other location the
parties may agree to, or a claim in a court of competent
jurisdiction in accordance with the terms of Section 27.3. The
parties shall use best efforts in order to proceed diligently with
the performance of this Agreement pending the resolution of
any Dispute that is subject to this Section 27.2. Each Party has
the right to pursue provisional relief from any court, such as
attachment, preliminary injunction, replevin, etc., to avoid
irreparable harm, maintain the status quo, or preserve the
subject matter of the mediation, even though mediation has
not been commenced or completed.
27.3 The forum having the proper exclusive jurisdiction and venue to
adjudicate any claim, dispute or default which may arise out of
the execution, delivery and performance of this Agreement and
the transactions contemplated hereby or thereby shall be either
the state or federal courts of Prince William County, Virginia,
USA. The parties expressly submit and consent to such
jurisdiction and venue and specifically waive any and all rights it
may have to contest the jurisdiction and/or venue of the above
mentioned forums and to demand any other forum.
FURTHERMORE, THE PARTIES HERETO ACKNOWLEDGE THAT
THE RIGHT TO TRIAL BY JURY IS A CONSTITUTIONAL RIGHT,
BUT THAT THIS RIGHT MAY BE WAIVED. THE PARTIES EACH
HEREBY KNOWINGLY, VOLUNTARILY AND WITHOUT
COERCION, WAIVE ALL RIGHT TO A TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY
EITHER PARTY AGAINST THE OTHER ON ANY MATTER ARISING
OUT OF THIS AGREEMENT OR OUT OF ANY AGREEMENT,
INSTRUMENT OR DOCUMENT DELIVERED, OR WHICH MAY IN
THE FUTURE BE DELIVERED, IN CONNECTION HEREWITH AND
AGREE THAT ANY SUCH ACTION, PROCEEDING OR
COUNTERCLAIM SHALL BE TRIED BEFORE A COURT AND NOT
BEFORE A JURY. BOTH PARTIES REPRESENT THAT THEY HAVE
BEEN REPRESENTED IN THE EXECUTION OF THIS AGREEMENT
AND THE MAKING OF THIS WAIVER BY INDEPENDENT LEGAL
COUNSEL, SELECTED OF THEIR OWN FREE WILL, AND THAT
THEY HAVE HAD THE OPPORTUNITY TO DISCUSS THIS WAIVER
WITH COUNSEL.