SPECIFIC TERMS OF USE – PROFESSIONAL SERVICES

 

These Specific Terms of Use (i) are appended to Arkadin’s Standard Terms and Conditions and set out the terms and conditions governing professional services provided by Arkadin; and (ii) are supplemented by the description of the assignment of which a model of the form is setting out in Appendix 1.

 

Definition

 

Assignment: Set of professional services performed by Arkadin and its agents and/or the delivery of a deliverable as described by Arkadin in the Services Description Document.

 

Service Description Document: Document written by Arkadin in the form of a SOW or any other template. This document has to include at least the information listed in the Appendix 1.

 

1. Arkadin’s Obligations

 

Arkadin shall perform the Assignment, as described in the Service Description Document with due professional care in line with industry standards. The Assignment may involve the provision of services and/or the delivery of a deliverable.

The Client acknowledges and agrees that Arkadin’s performance is dependent upon the timely and effective satisfaction of Client’s responsibilities and obligations hereunder and timely decisions and approvals of Client in connection with the Services.

 

If a provisional progress schedule is set out in the Service Description Document, Arkadin shall endeavor to comply with the deadlines set out in this schedule.

 

Arkadin’s employees and agents shall perform the Assignment under Arkadin’s liability and during the working hours and on the working days in force at the Arkadin entity that signed the Service Order Form. Arkadin will inform the Client of the relevant working hours and days on request. Arkadin undertakes to ensure that the employees or agents responsible for the Assignment play an active role in the performance of the Assignment. Arkadin may replace each employee or agent by another employee or agent provided that the replacement has the same level of skills as his/her predecessor.

 

Any reference to employees and agents includes the staff members of Arkadin and any of its subcontractors.

Each party’s staff members assigned to the performance of the Contract will remain under the exclusive authority, direction and supervision of their employer at all times. Accordingly, the said staff members will continue to benefit from the rank, collective bargaining agreements and management methods of their employer and may not be treated, in any manner whatsoever, as staff members of the other party.

Each party undertakes to fulfil its statutory and regulatory staff management obligations.

 

Arkadin is entitled to use its employees or agents for the provision of similar services for a third party or another Arkadin client.

 

The Client acknowledges that when Client's personnel are required to work with Arkadin's personnel in connection with an engagement, Client's failure to assign Client personnel having skills commensurate with their role with respect to such engagement could adversely affect Arkadin's ability to provide the Services.

 

If on-site work is to be carried out, Arkadin undertakes i) to keep the place of performance of the Assignment clean and tidy and not to cause or allow any other person to cause any damage or harm to this site, and not to use it for any illegal purposes; and ii) to act in compliance with the site rules and procedures in force, including the on-site personal safety procedures provided to it in advance, unless such compliance adversely affects the working conditions of employees or agents or their personal safety.

 

Client Data/Recommendations- The Client acknowledges and agrees that Arkadin may, in performing Services, be dependent upon or use data, material, and other information furnished by Client without any independent investigation or verification thereof, and that Arkadin shall be entitled to rely upon the accuracy and completeness of such information in performing the Services. Arkadin, in performing the Services, will be making recommendations and providing advice, but all decisions as to implementing such advice and recommendations shall be made by and shall be the sole responsibility of Client.

 

2. Client’s Obligations

 

The Client undertakes to name a sole point of contact with a sufficient and adequate level of technical knowledge about the Assignment to allow him/her to (i) coordinate it, (ii) act as Arkadin’s key contact for the Assignment; and (iii) initiate any amendments required for the proper performance of the Assignment. If this key contact is replaced, the Client shall give Arkadin prior written notice.

 

If Arkadin performs the professional services within the Client’s premises, the Client shall i) make available to Arkadin’s employees or agents all equipment required for the performance of the Assignment as described in the Appendix 1; ii) grant them access to the place of performance and the Client information required for the performance of the Assignment; iii) provide Arkadin with all documentation on the health and safety rules applicable at the place of performance before any on-site work and iv) answer any questions required for the performance of the Assignment.

 

The Client is liable for the proper performance of its contracts with any external companies and for the proper coordination of their staff members, working in parallel with Arkadin.

 

The Client undertakes to assist Arkadin with the formalities for the documents needed by its employees or agents to allow them to enter and leave the relevant territory and to work in this territory, if they are required to perform the Assignment in a country other than the country in which the Arkadin entity that signed the Service Order Form is located.

During the project implementation it is the Client obligation to be compliant with the network pre-requisites provided by Arkadin. If the service is altered due to non-compliancy with these perquisites it will be the Client responsibility to do the necessary work in order to stabilize the service. Any costs generated by the non-respect of the pre-requisites will be charged as extra work to the Client.

 

3. Acceptance Procedure for Services and Deliverables

 

The Client will have a period of ten (10) working days from the date of receipt of each deliverable and/or Service (hereinafter referred to as the “Acceptance Period”) in which to assess and accept the deliverable and/or the Service. If the Client identifies defects with the Services and/or deliverables, it undertakes to issue reservations within the Acceptance Period. If no request is submitted during this period, the Client will be deemed to have accepted the Services and/or deliverables ‘as is’ without any reservations. 

If the Client issues reservations on the Service and/or deliverable within the Acceptance Period, the Client undertakes to give Arkadin written notice of its reservations, explaining the reasons preventing it from accepting the Service and/or deliverable. Arkadin will examine the reasons given and resubmit the Service and/or deliverable for a new assessment in accordance with the same acceptance procedure as is described above. 

 

4. Expenses and Costs

 

4.1 Payment Schedule

As an exception to Clause 2.2 of the Standard Terms and Conditions, Arkadin shall invoice the Client in accordance with the schedule set out in the Service Description Document.

 

4.2 Extra Costs

 

4.2.1 Each party shall bear its own costs incurred for the performance of the Assignment unless specifically agreed otherwise in the Service Description Document. The Client acknowledges that it will be liable to pay additional invoices for accommodation and travel expenses incurred by Arkadin’s employees or agents if (i) the Services are to be provided at a place other than the place originally agreed in the Service Description Document, at the Client’s request; (ii) Arkadin identifies work that needs to be carried out at an extra site, in addition to the sites initially agreed. The parties will discuss the terms and conditions governing this work and the corresponding costs, which must be expressly accepted by the Client. All costs will be reimbursed based on invoices submitted by Arkadin.

 

4.2.2 If all or part of an Assignment is cancelled at the Client’s request or on account of an act or omission or a decision by the Client, the Client shall reimburse Arkadin for all costs already incurred for the performance of the said Assignment, against receipts. 

 

4.2.3 If a date of performance, a date of receipt, the date of a meeting scheduled in advance by the parties or the Assignment completion date is postponed for any reason that is not attributable to Arkadin, the Client shall be liable to pay i) extra costs incurred by this postponement based on the hourly rate charged for its employees or agents and ii) travel costs /cancellation costs for travel arrangements already made. The parties expressly agree that these extra costs will be payable on top of any price or rate stated in the Service Order Form. These standard rates will be provided to the Client on request. 

 

5. Ownership and Licenses

 

5.1 Pre-existing Intellectual Property

Arkadin will remain, in all circumstances, the exclusive owner of the pre-existing works (techniques, methods, procedures, tools, programs and equipment etc.) owned by it and/or that it uses for the performance of the Assignment and also of all developments, adaptations, arrangements and modifications of the said pre-existing works carried out by it or by any other providers during the performance of the Assignment. The Client will not be granted any right to use any pre-existing works used by Arkadin for the performance of the Assignment.

 

If Arkadin incorporates these pre-existing works into the deliverables supplied to the Client for valuable consideration, the Client will only be granted a non-exclusive and non-assignable right to use them (to the exclusion of any assignment of property rights), and solely for the purposes defined below:

(i) Client is only permitted to use these pre-existing works for the sole purpose of using the deliverables supplied and any other type of use, which does not involve the deliverables, is prohibited.

(ii) Client may only reproduce these pre-existing works to the extent that this is strictly necessary for the use of the deliverables supplied.

 

The Client is not permitted to translate, adapt, arrange or make changes to the pre-existing works of Arkadin and/or its Partners.

The Client may only decompile pre-existing works for interoperability purposes in compliance with the rights granted in the applicable law and only if Arkadin fails to provide the information that is strictly necessary for the said purpose within sixty (60) days following the date of receipt of a written request from the Client, submitted with the required technical specifications.

 

Arkadin’s pre-existing works will also be treated as confidential within the meaning of Clause 8.1 of Arkadin’s Standard Terms and Conditions.

 

5.2 Warranty Relating to Pre-existing Works.

 

5.2.1 With the exception of open source software, Arkadin warrants to the Client that it holds the rights for the pre-existing works incorporated into the deliverables or that it has obtained the prior permission of the third parties who own the programs and/or software used in the pre-existing works for Arkadin’s creation of the deliverables for the Client.

 

5.2.2 Under this warranty and subject to the articles 5.2.3 and 9, Arkadin shall defend the Client (or, at its discretion, reach a settlement) in any action taken against the Client in which it is claimed that one of Arkadin’s pre-existing works or the use of such work, as supplied under the Contract, infringes a third party’s Intellectual Property rights, provided that (i) the action is not attributable (a) to the use of the pre-existing work in a manner that is not in strict compliance with the contractual clauses, or b) to the combination of the pre-existing work with one or more intellectual works that were not supplied by Arkadin or by one of its Partners, or (c) to changes or additions made to Arkadin’s pre-existing work at the Client’s request and that (ii) the Client (a) gives Arkadin immediate written notice thereof and cooperates with Arkadin to the extent reasonable for its defense against the said action and (b) does not reach a direct settlement with the third party who issued the infringement proceedings or admit any liability or infringement and that (iii) Arkadin manages and controls the said defense.

 

5.2.3 Arkadin will bear, on the terms and conditions set out above and, in the event, that a court finds that Arkadin’s pre-existing work infringes the third-party’s Intellectual Property rights, all damages or payments awarded against the Client in this respect, in a final non-appealable court order. 

 

5.2.4 Arkadin may also, at any time, at its own discretion and at its own expense (a) acquire the right for the Client to continue the relevant use, or (b) make changes or replace its pre-existing work in order to prevent the relevant infringement, or (c) terminate all or part of the Contract for the infringing pre-existing work. 

 

5.3 Deliverables.

 

5.3.1 - If a deliverable is supplied to the Client and paid for in full, Arkadin assigns to the Client the intellectual property rights for the deliverables, corresponding to the right to reproduce, adapt, display and use them, at no extra cost other than the fees set out in the Service Order Form, for all countries and for such time as the relevant rights are protected by law.

 

5.3.2 – Subject to the articles 5.3.3 and 9, Arkadin warrants to the Client that the deliverables thus assigned do not infringe third-party rights. Accordingly, Arkadin shall defend the Client (or, at its discretion, reach a settlement) in any action taken against the Client in which it is claimed that a deliverable assigned as above infringes a third party’s Intellectual Property rights, provided that (i) the action is not attributable (a) to the materials supplied by the Client for the creation of the deliverables, or b) to the combination of the deliverables with works that were not supplied by Arkadin at the Client’s request, or (c) to changes or additions made to the deliverables by the Client or a third party after the delivery of the deliverables by Arkadin and that (ii) the Client (a) gives Arkadin immediate written notice thereof and cooperates with Arkadin to the extent reasonable for its defense against the said action and (b) does not reach a direct settlement with the third party who issued the infringement proceedings or admit any liability or infringement and that (iii) Arkadin manages and controls the said defense.

 

5.3.3 Arkadin will bear, on the terms and conditions set out above and, in the event, that a court finds that the deliverable infringes the third-party’s Intellectual Property rights, all damages or payments awarded against the Client in this respect, in a final non-appealable court order. 

 

5.3.4 Arkadin may also, at any time, at its own discretion and at its own expense (a) acquire the right for the Client to continue the relevant use, or (b) make changes or replace the deliverable in order to prevent the relevant infringement, or (c) refund to the Client the VAT-exclusive amount billed for the creation of the deliverable.

 

5.4 Materials Made Available by Client

The Client warrants to Arkadin (i) that it holds the rights for the materials made available to Arkadin for the performance of the Assignment, including the authors’ rights for any programs supplied to Arkadin; (ii) that it is permitted to arrange for them to be used by any third party of its choice, or to arrange for any third party of its choice to adapt, translate and/or transform the said materials/programs, in any manner. The Client shall indemnify and hold Arkadin harmless from and against any claims and proceedings based on an alleged infringement of any intellectual property rights held by any third party whatsoever, arising from the provision of the said materials that the Client made available to Arkadin.

 

6. Amendments

 

Either party may request amendments to the Assignment. In such a case, the party requesting the amendment must fill in the order amendment form set out in the article 10 and submit it to the other party’s key contact. The other party must give a written response to such requests within five (5) working days of receipt of the form (either refusing or accepting the amendment and with or without a new quote). If a new quote is issued, the order amendment will take effect on the date on which the party requesting the amendment approves the quote in writing. If no new quote is issued for the order amendments, they will take effect on the date on which the other party accepts the said order amendment in writing.

 

7. Term

 

These Specific Terms of Use apply for the duration of the Assignment, as defined in the Service Description Documentation.

 

8. Non-Solicitation of Staff Members

 

The Client undertakes not to poach or hire, directly or for any other business in which it has an interest, any of Arkadin’s staff members, regardless of their rank, without Arkadin’s prior consent. This clause applies for the entire period of performance of the Contract and for a period of one (1) year after the end of the Contract. 

 

If the Client breaches the above covenant, it will be liable to pay Arkadin twelve (12) times the last monthly remuneration earned by the relevant staff member, plus all costs incurred to hire a new employee or agent.

 

9. Liability

 

Arkadin's full liability to the Client, its officers, directors, representatives, employees, or agents is limited, all damages and service credits included, to the fixed amount, excluding services taxes as VAT, invoiced by Arkadin for such Service that gave rise to the damage. This is an overall limit and not a limit per incident.

 

10. Order Amendment Form Template

 

Client’s name: xxxx

Assignment: xxxx

At the request of: xxxx

Date of the request: xxxx

Amendment No: xxxx

Description of the amendment: xxxx