SPECIFIC TERMS OF USE - PROFESSIONAL SERVICES

(V. April 2020)

The present Specific Terms of Use shall be included in the Contract and shall define the terms and conditions applicable to the Professional Services in addition to or unless otherwise stated in any relevant SOW.

  1. Supplier’s obligations

The Supplier’s obligations are described below:

  1. Supplier shall perform the Services as described in the SOW with due professional care in line with industry standards. The SOW may include the provision of services and/or the delivery of a Deliverable.
  2. Supplier’s performance is dependent upon the timely and effective respect by the Client  of its  responsibilities and obligations and timely decisions and approvals of Client in connection with the Services: if a provisional progress schedule is set out in the SOW, Supplier shall endeavour to comply with the deadlines set out in this schedule.
  3. Supplier’s employees and agents shall perform the Services under Supplier’s liability and during the working hours and on the working days in force at the Supplier entity that signed the SOW. Supplier will inform the Client of the relevant working hours and days on request. Supplier may replace each employee or agent provided that the replacement has the same level of skills as his/her predecessor.
  4. 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. Each party undertakes to fulfil its statutory and regulatory staff management obligations.
  5. When Client's personnel are required to work with Supplier'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 Supplier's ability to provide the Services.
  6. If on-site work is to be carried out, Supplier undertakes i) to keep the place of performance of the Services 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.
  7. Supplier 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 Supplier shall be entitled to rely upon the accuracy and completeness of such information in performing the Services. Supplier, 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.
  1. Client’s obligations

The Client’s obligations are described below:

  1. The Client undertakes to name a sole point of contact with a sufficient and adequate level of technical knowledge with regards to the Services involved in the SOW to allow him/her to (i) coordinate it, (ii) act as Supplier’s key contact and (iii) initiate any modifications or updates required for the proper achievement of the SOW. If this key contact is replaced, the Client shall give Supplier prior written notice.
  2. If Supplier performs the Services within the Client’s premises, the Client shall i) make available to Supplier’s employees or agents all equipment required for the performance of the Services as described in the SOW; ii) grant them access to the place of performance and the Client information required for the performance of the Services; iii) provide Supplier 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 Services.
  3. 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 Supplier.
  4. The Client undertakes to assist Supplier 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 Services in a country other than the country in which the Supplier entity that signed the SOW is located.
  5. During the built phase of the project it is the Client obligation to be compliant with the network pre-requisites provided by Supplier, or with the prerequisite of its own network service providers. If the Service is altered due to non-compliancy with these prerequisites 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.
  1. Acceptance procedure for Services and/or deliverables

The acceptance procedure shall be set out in the SOW. By default, the following process applies:

  1. 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.  
  2. If the Client issues reservations on the Service and/or Deliverable within the Acceptance Period, the Client undertakes to give Supplier written notice of such reservations, explaining the reasons preventing it from accepting the Service and/or Deliverable. Supplier 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.  
  3. Until the Services have been duly accepted by the Client in compliance with the acceptance process described in the SOW or by default under this clause, the Client acknowledges that the Services are provided “as is” and without any specific service level agreement or support.
  1. Payment – costs – CHANGE REQUEST
  1. Payment

The payment terms and modalities are set out in the SOW (either Fixed Price; or Time and Material basis; or Fixed Budget).

Each party shall bear its own costs incurred for the performance of the SOW. The Client acknowledges that it will be liable to pay additional invoices for accommodation and travel expenses incurred by Supplier as applicable.

  1. Change Request

Either party may request changes to the Services. In such a case, the party requesting the change must fill in a change request form as set out in the SOW 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 change will take effect on the date on which the party requesting the change approves the quote in writing. If no new quote is issued for the change, the change will take effect on the date on which the other party accepts the said change in writing.

In the event a change request results directly or indirectly in a Service cancellation, extra-costs shall be charged to the Client in accordance with clause 4.d) in addition to any price or rate stated in the SOW.

  1.  Postponement

If any date (of performance, of receipt, of a meeting scheduled in advance by the parties or for project closure) is postponed for any reason that is not attributable to Supplier, 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 for travel arrangements already made. The parties expressly agree that these extra costs will be payable in addition to any price or rate stated in the SOW.

  1.  Cancellation

If all or part of the Services is cancelled at the Client’s request or on account of an act or omission or due to a decision by the Client, the Client shall pay or reimburse Supplier:

  1. Fixed Budget: all minimum commitments and amounts accepted by the Client in accordance with the SOW.
  2. Time & Material: all costs already incurred for the performance of the said Services as evidenced by Supplier upon request of the Client.
  3. Fixed Price: the Fixed Price agreed upon by the Client under the relevant SOW.   
  1. INTELLECTUAL PROPERTY - INDEMNIFICATION
  1. Assignment of the Deliverables.

No Generally developed IP in the Deliverables or otherwise are assigned to the Client.

Any Specifically developed IP in the Deliverables, and subject to Client related full payment, are assigned to the Client with the right to reproduce, adapt, display and use them for all countries and for such time as the relevant rights are protected by law.

  1. Supplier IPR infringement indemnification

Supplier will defend and indemnify Client against any third party claim, suit, action or proceeding which alleges that Client’s use of Supplier Material in connection with the Services, as expressly authorized herein, infringes the intellectual property rights of the third party.

Subject always to any limitation of liability set out in the Contract (such as article 9 of the STC), Supplier’s obligation will be to pay all proven direct damages and expenses awarded by a court or arbitrator or agreed by Supplier in a settlement of the claim.

Supplier’s indemnification obligations above are expressly conditioned on Client: a) providing Supplier with immediate notice of the claim; b) making every reasonable effort to mitigate its losses in connection with the claim; c) giving Supplier sole control of the defence and settlement negotiations of the claim; and d) cooperating with Supplier, at Supplier’s expense, in defending or settling such claim.

Upon becoming aware of or reasonably suspecting an infringement claim that threatens the continued use of the Services or any Supplier Material related thereto, Supplier shall be entitled, at its own expense and option, to: a) obtain for Client a license for the continued use of the infringing the Supplier Material; b) replace the infringing material with non-infringing material that is substantially equivalent in functionality; c) repair or make those modifications to the infringing material that may be necessary to remove the alleged infringement; or d) if there is no way of remedying the infringement, terminate the Contract under which the infringing material is provided, in whole or in part, on notice to the Client, and Client will be entitled to a pro-rata refund of any part of the Charges it has paid for the Services to be supplied after the date of termination under such Contract.

Supplier will have no obligation under this  clause for: a) any infringement arising from the combination of the Supplier Material with other products not supplied or specifically approved by Supplier; b) any infringement arising from an act or omission of the Client or its directors, employees, agents or end users, including the failure to use a current release of any Supplier Material as provided or instructed by Supplier; c) the modification of the Supplier Material by any party other than Supplier (unless approved expressly by Supplier); d) software which contains open source code and/or free software components; and e) possession or use of Supplier Material (or any part thereof) by the Client other than in accordance with terms of its license and instructions.

This clause states Supplier’s entire liability and Client’s sole remedy for any infringement claim related to the Services and any associated Supplier Material.

 

  1. Client IPR infringement indemnification

The Client warrants to Supplier (i) that it holds the rights for the materials made available to Supplier for the performance of the Services, including the authors’ rights for any programs supplied to Supplier; (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 Supplier 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 Supplier.

Client’s indemnification obligations above are expressly conditioned on Supplier: a) providing Client with immediate notice of the claim; b) making every reasonable effort to mitigate its losses in connection with the claim; c) giving Client sole control of the defence and settlement negotiations of the claim; and d) cooperating with Client, at Client’s expense, in defending or settling such claim.

  1. Non-solicitation

The Client undertakes not to induce or hire, directly or for any other business in which it has an interest, any of Supplier’s staff members, regardless of their rank, without Supplier’s prior consent.

This clause applies for term of the Contract and for a period of one (1) year after its expiration date for whatever reason.  

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