Version: June 2017

GENERAL TERMS AND CONDITIONS SAAS SERVICES ILOST B.V.

iLost B.V., a private company with limited liability organized under the laws of the Netherlands and registered at the Trade Register of the Dutch Chamber of Commerce under file number 55241506 (“iLost”) offers a web-based multi-sited online service which provides ‘Lost and Found’ management service enabling (i) registration and online publication of found items, (ii) the matching and communication with third parties that claim a lost item (“Claimants”) online publication thereof, (iii) planning of logistics and (iv) the administration and monitoring of the entire lost and found process via their website www.ilost.nl (“the Website”) (the “Service”). iLost operates the Service and makes the Service available for use to their customers (“Customer”) as a cloud solution (Software as a Service – SaaS). iLost and Customer shall also be referred to subsequently as “Party” or together as “Parties” respectively. As used herein, the singular shall include the plural and the plural shall include the singular as the context shall require.

## 1. SCOPE OF APPLICATION

  • 1.1 Unless agreed otherwise between the Parties in writing, any use of the Service as well as entering into the Customer Contract with respect to the use of the Service and all other services and deliveries of iLost are exclusively provided on the basis of, and governed by, these General Terms and Conditions (“Terms & Conditions”) in the respective current version. Any general terms or conditions of Customer shall not apply, unless iLost agrees thereupon in writing. The activation of Service or provision of any other service or delivery by iLost shall not be considered consent in this regard.

  • 1.2 iLosts service or product offered to Customer as well as these Terms & Conditions shall only apply in relation to business customers which, when commissioning iLost, do not act for private purposes and, therefore, are not to be qualified as consumers according to Book 7, article 5 of the Dutch Civil Code. These Terms & Conditions also apply for any future business with Customer within the scope of an ongoing business relationship.

  • 1.3 iLost may change these Terms & Conditions at any time. Changes to these Terms & Conditions shall only be considered part of the Customer Contract if such Customer Contract already exists between iLost and Customer. iLost will inform Customer about a change of these Terms & Conditions in writing, with typographical emphasis on the amendments. The change is deemed approved by Customer, unless Customer objects thereto in writing within 6 (six) weeks from receipt of the change notification.

2. SERVICES OF ILOST

  • 2.1 iLost operates the Website and makes it available to Customer as a cloud solution (SaaS). Details as to the functionalities of the Service can be found within a specific offer issued by iLost for Customer (the “Customer Contract”).

  • 2.2 As part of the Service iLost shall make the Website available to Customer as a technical platform enabling Customer to place items found by Customer belonging to third parties (the “Lost & Found Items”). Customer is provided with the technical facility and authorization to access the technical platform and use the platform’s functionalities via Customer’s own hardware.

  • 2.3 iLost guarantees an annual average of 99% uptime of the web interface. However, it is impossible for iLost to ensure the undisrupted operation of the Service at all times for technical reasons. Customer acknowledges that, for several reasons, the Service may be interrupted/restricted (“Disruptions and Interruptions to Service”), in particular due to the following circumstances: (i) planned maintenance work, (ii) interferences or delays based on the breakdown or overcharge of Internet- or telecommunication lines, as well as (iii) Force Majeure or other circumstances which are unforeseeable (see Clause 8.2 below). iLost shall strive to minimize such Disruptions and Interruptions to Service as much as possible. The Disruptions and Interruptions to Service and mentioned in this paragraph shall not be considered as default or any other form of a contract infringement on iLost’s side, insofar as it is merely an insignificant and temporary disruption or interruption to service.

  • 2.4 iLost does not owe any upgrading or enhancement of the Service by new functions exceeding the scope of functions as existent at the execution of the Customer Contract. However, iLost reserves the right to conduct modifications at any time in order to enhance or update any functionality, whereby the aforesaid does not establish any claim for Customer, nor may Customer derive any claim therefrom. In case of such modifications, iLost will inform Customer in due advance before taking them into operation. iLost will also inform Customer about newly developed additional optional modules (if any), which iLost offers against separate remuneration.

  • 2.5 Customer is solely responsible for the contents of any item, which Customer transmits, publishes or makes available thru or on the Website, and which are published or sent accordingly via the Service, as well as for any underlying data. iLost does not accept any responsibility for the contents of any end Customer requests, which may be transmitted back to Customer via the Service, and which have been generated via the Website or any other online channel. iLost only makes available the technical requirements for the transmission of such data, but does not owe any examination of their contents under any factual, legal or other aspects, or examine such data’s on its correctness, completeness, integrity or authenticity.

  • 2.6 Insofar as agreed-upon in the individual case, iLost will additionally provide Customer with certain software code (or: script) to enable integration of the publication tools (i) search bar, (ii) button and (iii) an found item overview in Customers’ websites or app. Depending on the individual case, this may also be done without remuneration.

3. FORMATION OF CUSTOMER CONTRACT

  • 3.1 The Customer Contract will be concluded via an individual offer issued by iLost and a respective acceptance of such offer issued by Customer.

  • 3.2 When issuing his respective acceptance of such offer by Customer, Customer accepts these Terms & Condition and affirms that the data transferred by Customer in relation to the Customer Contract is correct and complete. Any later changes to such data shall be immediately communicated by Customer to iLost.

4. RIGHTS OF USE

  • 4.1 iLost grants to the registered Customer a non-exclusive, non-transferable and non sub licensable right of use, temporarily limited to the duration of the Customer Contract, entitling Customer to use the Service for his own business purposes in connection with the placement of Lost & Found Items. Beyond that, no further rights, in particular with respect to the software applications underlying the Service or any operating software of iLost, are being granted.

  • 4.2 Any use of or the allowance of the use of the Service beyond or exceeding the extent of use as described in Clause 4.1 above is unlawfull. In particular, Customer is not entitled to copy, process or further develop the Service or any parts thereof or the underlying software, to decompile the source code or otherwise make the source code legible or usable, to make the Service or any related software publicly available, let or lease or otherwise transfer it to third parties, to commercially utilize the Service or any software, use it for the purposes of third parties or facilitate any of the aforesaid.

  • 4.3 Should Customer culpably facilitate any use of the Service or of any software of iLost by unauthorized third parties, iLost explicitly reserves the right to claim damages. In case of any unauthorized facilitation of use by third parties, immediately upon iLost’s request, Customer shall submit iLost with all information necessary to assert legal claims against the third party use.

5. CUSTOMER’S OBLIGATIONS

  • 5.1 Customer is responsible for the technical connection to the necessary telecommunication means and, via those, to the Service, as well as the making available of necessary interfaces to his own applications.

  • 5.2 Customer is responsible for selecting the Customer settings for the Service in a way as to secure an interruption-free use of the Service. In particular, Customer shall secure that it follows and acts according the iLost Usage Instruction as attached to the Customer Contract in particular the pickup instructions and business location the Customer and iLost agreed upon in the Customer Contract to ensure that iLost is able to provide the Services. Customer is obligated to immediately inform iLost of any changes which arise within his sphere of activity if they may affect the provision of the Service or be detrimental to the security of the Service.

  • 5.3 Customer shall, within his own sphere of organization and responsibility, implement sufficient and up-to-date protection measures in the interest of data and information security. As regards Customer’s connection to the Service, he shall provide the necessary security precautions (e.g. firewalls, and using a software suitable for access via the Internet and safeguarding a secure data transmission).

  • 5.4 In relation to the login credentials to the Website that either shall be provided by iLost or shall be chosen by Customer (the “Login Credentials”), Customer certifies to keep confidential the Login Credentials, shall not disclose such Login credentials to any third party. In the event of a threatening unauthorized use of access/Login Credentials (e.g. after an exchange of employees or any other organizational change) Customer is obligated to inform iLost immediately in writing. Customer is responsible for all actions of third parties in relation to the use of Customer’s Login Credentials. iLost can solely decide whether blocking of access of Customer to the Service (see Clause 6 of these Terms & Conditions) is to be initiated. Furthermore, Customer is obligated upon learning of unauthorized access by third parties to cooperate insofar as cooperation is required of Customer.

  • 5.5 In addition to clauses 4.1 and 4.2 of these Terms & Conditions, Customer is obligated to refrain from all measures which may jeopardize or disrupt the operation of the Service. Furthermore, Customer may explicitly not use or allow the Service to be used for transactions which infringe statutory provisions in any way; by way of example but not limited to content that is radical, racist, pornographic, violence glorifying, or otherwise unlawful or offending. iLost also excludes from the use of the Service any Customer demonstrably practicing dubious business methods.

  • 5.6 Customer shall indemnify and hold iLost harmless from and against any upcoming (existing or alleged) third party claims, including the costs for legal representation, resulting from any actions or failures of Customer or any use or allowance the use of the Service, in particular claims resulting from improper or unlawful use of the Service or from an infringement of applicable laws or third party rights by Customer himself or tolerated by him. If Customer recognizes or should have recognized that any such infringement is threatening, he is obligated to inform iLost of this immediately.

  • 5.7 Any additional costs resulting from any neglected, non-timely, non-complete or non-correct compliance with Customer’s obligations shall be borne by Customer, if he is responsible for this or liable for other reasons.

6. INFRINGEMENT OF CUSTOMER’S OBLIGATIONS, BLOCKING OF ACCESS TO THE SERVICE

  • 6.1 iLost may, at any time, in whole or in part, block Customer’s access to the Service or delete Customer’s account, if (i) Customer infringes any of his obligations related to the safeguarding of data and information security, (ii) there is imminent danger of damage to or impairment of any systems, data or services of iLost or any systems or data of any other customer of iLost, or danger of damage to the public, (iii) any offers or data transmitted by Customer via the Service, or respectively, any transactions conducted via the Service, are infringing applicable legal provisions or third party rights, or (iv) any other circumstances are given which entitle iLost to immediate termination of the Customer Contract for cause. Furthermore, blocking of access is possible if Customer in the event (v) a payment under the Customer Contract has not or not timely been paid by Customer to iLost, whereby such blocking/deletion will only be initiated after iLost has first issued a payment reminder including the setting of another reasonable deadline for payment with a minimum of 14 (fourteen) days.

  • 6.2 If the blocking of access is a result of the failure to perform the obligations in full under the Costumer Contract by Customer, access will only be restored if the infringement is permanently remedied, or the risk of recurrent infringement is effectively excluded by a cease and desist declaration including contractual penalty. However, iLost is not obligated to enable access again if this would be unreasonable, e.g. if the reason for blocking entitles iLost to an early termination and iLost makes use of this reason to terminate.

  • 6.3 If a blocking/deletion is due to a failure to perform the obligations under the Customer Contract by Customer, Customer is not entitled to retain any due payment or assert any damage claims against iLost and shall not, in any way, be entitled to any damages.

  • 6.4 Should iLost, by way of an exception, facilitate Customer with an account free of charge, iLost may block or delete such account at any time, without giving reason, and/or decide that further use of the Service is conditioned upon payment of a remuneration.

7. REMUNERATION

  • 7.1 In consideration of the Service use, Customer shall pay to iLost a remuneration according to the initial offer and/or the Customer Contract or iLost’s respective price list as valid at te execution of the Customer Contract, insofar nothing else has been agreed to in writing.

  • 7.2 All prices apply net, plus the respective statutory value added tax (VAT, currently 21%, if applicable). If Customer’s business seat is outside the Netherlands, and if, in connection with service provided to a foreign customer, there are any other particular taxes, customs duties or other charges applicable, all such taxes, duties and charges are to be borne by Customer or, respectively, if they are to be paid by iLost, they are to be reimbursed by Customer to iLost.

  • 7.3 All invoices increased with turnover tax are due for payment net without discount 30 (thirty) days after the invoice date.

  • 7.4 Within the scope of ongoing Customer Contracts that are based on standard price lists, iLost is entitled to adjust the remuneration to iLost’s own cost development once per year in iLost’s equitable discretion and under reasonable consideration of Customer’s interests. iLost will inform Customer about such price adjustments in writing. The price adjustment is deemed approved by Customer, unless Customer objects thereto in writing within 6 (six) weeks from receipt of the change notification; iLost will indicate this consequence in the change notification. If Customer objects to the price adjustment, both parties have a right for special termination of the affected Customer Contract with effect as of the announced time of the new prices taking effect; such right to special termination may be exercised within one month after iLost has received Customer’s objection; however, at the very latest, with effect from the stated date of the introduction of the new prices.

  • 7.5 Customer is only entitled to set-off against iLost’s remuneration claims if Customer’s asserted counterclaim is undisputed or established by a final and binding court decision. Any right of retention on Customer’s side is only permissible under the same conditions, whereby the counterclaim must additionally result from the same contractual relationship.

8. DUE DATES, DEFAULT, FORCE MAJEURE

  • 8.1 In the event any omission on behalf of iLost in providing the Services, shall be regarded as default on the part of iLost if iLost has received a proper notice of default by Customer and iLost has been granted an additional grace period by Customer which has run-out without success, unless this would be unreasonable for Customer under consideration of the individual circumstances.

  • 8.2 iLost shall be released from their contractual obligations if and insofar as the non-performance is resulting from Force Majeure or any other circumstances which are unforeseeable and which can not be attributed to iLost (including but not limited to war, strike, lockout, riots, expropriation, revisions of statutory law, official orders, storm, flood, natural disasters, water in leakage, breakdown of energy supply, system breakdown in the Internet, breakdown or destruction of data transmission or telecommunication lines, illegal activities of third parties in the Internet or sabotage by malware). The same applies in case of delays based on circumstances resulting from Customer’s sphere of responsibility (e.g. non-timely fulfillment of Customer’s obligations or lacking availability of IT-components or interfaces on Customer’s side).

  • 8.3 The release from obligations shall be valid for the duration of the situation of force majeure interference or other situations as provided for in clause 8.2 plus a reasonable start-up period. lf such situation lasts for longer than 7 (seven) days, either Party may terminate the Customer Contract with respect to the affected part of the Service. In all such cases, any claims for the compensation of damages or expenditures against iLost shall be excluded, with the exception of the pro rata right of Costumer to receive any prepaid amounts if any.

  • 8.4 Both Parties shall inform each other immediately after getting knowledge of any Force Majeure or other event as mentioned in Clause 8.2 of these Terms & Conditions. If a written notification due to the respective circumstances is initially not possible, the respective informing Party is obligated to notify the other Party in any other possible way followed by sending a written form of notification, as soon as possible after getting knowledge of any Force Majeure or other event as mentioned in Clause 8.2 of these Terms & Conditions.

9. CLAIMS BASED ON DEFECTS

  • 9.1 Customer shall immediately notify any occurring defects to iLost in writing, addressed to the respective support email address as published or provided by iLost. Customer shall reasonably support iLost when analyzing and remedying the defect, and immediately provide access to documents or materials containing information as to the circumstances under which the defect has occurred. Customer shall bear all reasonably incurred additional costs resulting from incorrect or incomplete information provided by Customer in this regard, or incurred by iLost resulting from any delays in defect analysis or remedy caused by Customer.

  • 9.2 Customer acknowledges that his usability of the Service is significantly dependent on the Customer settings chosen by Customer himself, including but not limited to the pick-up instructions provided by Customer and or any other element of the iLost Usage Instructions. As a consequence, only reproducible errors may be acknowledged as defects.

  • 9.3 Measures undertaken by iLost to resolve or reduce damages do not constitute an acknowledgement of defects or liability. By attending to the notice of any defect by iLost, iLost does not constitute a waiver in any way of the objection that the notice of defect was not timely, factually unfounded or was otherwise inadequate.

  • 9.4 Warranty claims are excluded in the event Customer him or itself, or via third parties, changes any Service functionality without prior authorization from iLost, or deviates from including but not limited to (i) the Customer Contract, (ii) the ilost Usage Instructions or any other written or oral agreement between iLost and Customer for use as stipulated by iLost, or uses the Services in an operating environment other than stipulated by iLost, including handling errors on Customer’s side, non-observance of usage instructions, false or lacking processing data, unless iLost is responsible for this. The aforesaid shall also not apply if Customer can demonstrate that occurring defects are not connected with such circumstances. If, due to such circumstances, defect analysis is substantially hindered, Customer shall bear any additional costs incurred thereby.

  • 9.5 If a defect occurs which iLost is responsible for, iLost will, within reasonably time, at their own choice either remedy the defect or provide replacement delivery (jointly: “Supplementary Performance”). The Supplementary Performance may also consist of providing, for the purpose of problem solution, a temporary or – unless this would be unreasonable for Customer – permanent workaround. Should Supplementary Performance fail, Customer may, if the respective statutory preconditions for such claims are given, request a reduction of remuneration or terminate the Customer Contract.

  • 9.6 For defects of title, the following applies: In case of an infringement of third party intellectual property rights which iLost is responsible for, iLost may, at their own choice, either obtain at their own costs a right of use from the third party which is sufficient for use of the Service as agreed under the Customer Contract and grant such right of use to Customer, or modify the Service thereby keeping-up the agreed possibilities for use but in a way that no third party intellectual property rights are infringed any longer. Should this be impossible or unreasonable for iLost, Customer is entitled to request a reduction of remuneration or terminate the Customer Contract.

10. LIABILITY FOR DAMAGES AND/OR EXPENDITURES

  • 10.1 Notwithstanding any legal grounds, iLost can only be held liable in cases of wrongful intent, gross negligence and the negligent violation of essential contractual duty by iLost.

  • 10.2 In cases of ordinary negligence by iLost, the total liability of iLost will be limited to the compensation of direct and actual demonstrable damages or losses.

  • 10.3 Regardless of the cause of liability iLost’s liability per damage incident is limited to the amount equal to the yearly net remuneration paid by Customer under the Customer Contract in which year the damage incident has occurred.

  • 10.4 If and insofar as iLost makes available to Customer any services free of charge, iLost’s liability shall be limited to cases of wrongful intent and gross negligence. This particularly applies to any free-of-charge service publication tools (as referred to in Clause 2.6), and in case iLost, by way of an exception, provides Customer with a free-of-charge account for the Service.

  • 10.5 iLost’s liability does not extend to any damages within the scope of contractual use of the Services provided by iLost which have been caused by improper or incorrect use by Customer.

  • 10.6 As regards the loss of data or programs, iLost shall not be liable insofar as the damage would have been avoidable if the appropriate data protection measures had been taken by Customer, which is particularly the case if that Customer has failed to carry-out regular and appropriate data back-up measures due within his sphere of responsibility and, thereby, make sure that lost data may be restored with reasonable effort.

  • 10.7 Insofar as iLost’s liability is excluded or limited, this shall also apply for the liability of iLost’s representatives, employees and subcontractors.

11. PRIVACY PROTECTION, INFORMATION SECURITY

  • 11.1 The Internet is used as communication and data transmission channel when providing the Services. Based on public access and the possibilities that contents and data may be manipulated by non-authorized third parties, this is connected to certain risks, e.g. getting knowledge of data in transmission without authorization. Even additional protection measures such as firewalls cannot provide absolute security against misuse, loss, theft or illegitimate modification of data, or against attacks which lead to service interruptions. Customer accepts these risks; if any such risks should realize, potential claims against iLost shall be excluded, unless iLost has negligently or intentionally caused the respective circumstances.

  • 11.2 Both Parties undertake to observe and apply all applicable data protection laws.

  • 11.3 By way of providing the Service, iLost makes available to Customer the technical facility to process certain data. For the purposes of the Personal Data Protection Act (Wet bescherming persoonsgegevens) (“Wbp”) with respect to the personal data of Claimants (meaning any information relating to a Claimant) (“Personal Data”) iLost shall be considered controller (verantwoordelijke). iLost shall comply with the Wbp and shall not use Personal Data for purposes other than the purposes stipulated by iLost. Further details with respect to data protection can be found in iLost’s Privacy Statement, which can be found on iLost’s website under the menu item Legal, which Privacy Statement has previously been agreed upon by Customer when entering into the Customer Contract.

  • 11.4 For the purposes of the Wbp, Customer shall be considered processor (bewerker). Customer shall comply with the Wbp and Customer is explicitly not allowed to use any Personal Data that has been provided by a Claimant to Customer when using the Website for any other purpose than the purpose of the Service. Customer shall, with the exclusion of iLost, be responsible for the use of Personal Data that has been provided by a Claimant to Customer without making use of the Website.

12. CONFIDENTIALITY, PUBLICATIONS

  • 12.1 Both Parties undertake to treat all information about the other Party’s business operations becoming known to them while carrying-out the Customer Contract, in particular business and trade secrets (“Confidential Information”), as strictly confidential, and not to use these for purposes outside of those required for contract implementation, even after contract termination, and not to disclose such information to third parties, with the exception of such third parties which have been legitimately engaged by the Parties in connection with contract performance, and upon which the Parties will impose corresponding confidentiality obligations. This applies irrespective of whether this confidential information has been classified as “confidential” or “secret” or as requiring to be kept confidential in a similar manner. The confidentiality obligation shall not apply with respect to such information which (i) has been publicly available or known to the receiving Party prior to disclosure by the disclosing Party, or later becomes publicly available or known to the receiving Party without breach of any confidentiality obligation by the receiving Party, (ii) has demonstrably been developed by the receiving Party independently from knowledge of the information disclosed or having become known under the Customer Contract without breach of any confidentiality obligation, or (iii) with respect to which statutory or officially ordered duties of disclosure exist.

  • 12.2 iLost is entitled to mention Customer as reference customer on its Website and in any other media or marketing materials, and, in this regard, also use Customer’s company logo or other company denominations within the scope of a revocable, non-exclusive right of use.

13. CONTRACT DURATION, TERMINATION

  • 13.1 Both Parties shall have the right to, irrespective of the notice period provided for in the Customer Contract (if any), terminate the Customer Contract with immediate effect for cause, in particular if the other Party sustainably infringes essential contractual obligations and does not remedy such violation despite a warning by the other Party within reasonable remedy period has been granted by that other Party. Furthermore, iLost is entitled to immediate termination of the Customer Contract in the event Customer has failed to payment of two or more due invoices.

  • 13.2 Any termination notice requires the written form. Termination notices per email do also constitute the written form.

  • 13.3 Upon the termination of the Customer Contract, for whatever reason, Customer is obligated to immediately cease using the Service, return all materials submitted to him by iLost in connection with Service to iLost, and delete all respective data stored at Customer’s own systems, unless this would not be permissible due to statutory retention and archiving duties.

14. MISCELLANEOUS

  • 14.1 Customer may only effectively assign the Customer Contract which has been concluded between the contractual parties or individual rights or obligations resulting therefrom to third parties after having obtained the other Party’s prior written consent.

  • 14.2 The entire contractual and business relationship between the Parties shall be exclusively governed by the Laws of the Netherlands.

  • 14.3 The place of performance and exclusive place of jurisdiction for all disputes arising from and/or in relation to the contractual and business relationship between Parties shall be Amsterdam, the Netherlands.

  • 14.4 Any amendments or modifications to the Customer Contract which has been concluded between Parties and/or these Terms & Conditions as well as collateral agreements shall be considered effective if they are agreed to by the Parties in writing.

  • 14.5 Should individual provisions of the contract concluded between the Parties or of these Terms & Conditions be or become invalid, in whole or in part, this shall not affect the validity of the remaining provisions. The fully or partially invalid provision shall be replaced by a legally valid provision, whose economic objective comes closest to that intended by the invalid provision. The same applies in the event of a regulatory gap.