End User Consultancy Services Terms and Conditions
Version: November 2020
Capitalized terms used in the Consultancy Terms and Conditions shall have the meanings ascribed to them in the END USER LICENSE TERMS AND CONDITIONS provided above as Annex 1 (“License T&Cs”) unless otherwise expressly defined or re-defined herein.
1. Consultancy Services
Any services provided by Supplier, including consultancy, software development, education or the delivery of Deliverables, but excluding the licensing of Software, updates and new versions (hereinafter: “Services”), need to be agreed upon between the parties in a separate Statement of Work (SoW). The terms and conditions set forth in these Consultancy Services Terms and Conditions shall govern the agreed SoW(s). SoWs form an integral part of the Agreement with Client. “Deliverables” in these Consultancy Services Terms and Conditions mean any materials, analyses, designs, reports, scripts, created by Supplier for use under or in the performance of a SoW, excluding Software or updates and new versions.
2. Execution of Consultancy Services
Supplier shall perform the Services with due care and in a professional manner, and, where appropriate, in accordance with generally accepted industry standards and in accordance with the procedures recorded in writing with Client if specified in the SoW. All Services are performed on a time and materials basis; nothing in this Agreement may be construed as an obligation of Supplier to deliver a certain result. All Services shall further be performed on the basis of a reasonable commercial efforts obligation, unless and insofar as Supplier has expressly agreed a result in the applicable SoW and the result concerned has also been described with sufficient definiteness. Any agreement concerning a service level shall be expressly agreed in a SoW. If it is agreed that the Services shall be provided in stages, Supplier shall be entitled to postpone the start of the Services which are part of a stage until Client has approved the results of the preceding stage in writing. If a SoW has been entered into with a view to performance by a particular person, Supplier shall be entitled to replace this person, after consultation with Client, with one or more other persons with equivalent qualifications. Supplier will retain the sole and exclusive right to control or direct the manner or means by which the Services are performed. If a SoW includes planning, timesheets, or other specific requirements to perform Services, Supplier will use reasonable commercial efforts to honor these requests and to perform in accordance with the specifications in the SoW. Supplier reserves the right to determine the assignment of employees and representatives and change planning. The mere fact that a stated or agreed delivery or other period has been exceeded shall not cause Supplier to be in default. In all cases, even if the parties have expressly agreed on a firm date in writing, Supplier shall not be in default because of a time period being exceeded until Client has provided Supplier with a written notice of default, giving Supplier a reasonable time to cure the default. Supplier shall not be bound by firm or non-firm delivery or other periods which can no longer be met on account of circumstances beyond Supplier’s control which has occurred after the SoW was executed. Nor shall Supplier be bound by firm or non-firm delivery periods if the parties have agreed to modify the substance or scope of a SoW (additional work, change in specifications, etc.). If any period threatens to be exceeded, Supplier and Client shall consult with each other as soon as possible. The fact that additional work (or the demand for it) arises during the performance of a SoW shall never be a ground for Client to rescind or terminate this Agreement and/or the applicable SoW. Supplier may subcontract or assign any or all of its obligations and rights under any SoW, subject to Client’s consent, which consent shall not be unreasonably withheld or delayed.
3. Requirements execution of Consultancy Services
Client agrees to make available in a timely manner at no charge to Supplier all technical data, access to facilities, programs, files, documentation, test data, sample output, or other information and resources reasonably required by Supplier or as otherwise explicitly indicated in the SoW, for the performance of the Services. Client will be responsible for, and assumes the risk of any problems resulting from the content, accuracy, completeness and consistency of all such data, materials and information supplied by Client. If the Services will be provided at Client’s premises, Client agrees to provide to Supplier, at no charge, office space, presentation rooms and facilities, services and equipment (such as copiers, fax machines, beamers and internet connections) which Supplier reasonably requires to perform the Services. Client warrants that there are no third party rights which are inconsistent with providing Supplier with equipment, software or materials intended to be used by Supplier in the performance of the Services. Client shall indemnify and defend Supplier against any action based on the claim that such use infringes a third party right. The working space and facilities will comply with all applicable statutory and other requirements and provisions concerning working conditions. Client will indemnify Supplier against claims by third parties including Supplier’s employees and representatives who in executing a SoW suffer injury which is the result of acts or omissions by Client or of unsafe situations in the organization of Client. Client will provide timely written notice to Supplier’s employees and representatives about the company rules and security rules applicable within the organization of Client. Client’s employees cooperating in the performance of a SoW will possess the necessary know-how, experience, abilities and characteristics.
EXCEPT FOR SUPPLIER’S INTENT OR GROSS NEGLIGENCE, SUPPLIER’S LIABILITY TO THE CLIENT FOR DAMAGES CONCERNING PERFORMANCE OR NON-PERFORMANCE IN ANY WAY RELATED TO THE SERVICES SHALL NOT EXCEED THE TOTAL AGGREGATE AMOUNT OF FEES RECEIVED FOR THESE SERVICES BY SUPPLIER UNDER THIS AGREEMENT, REGARDLESS OF WHETHER THE CLAIM FOR SUCH DAMAGES IS BASED IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE. IN NO EVENT IS SUPPLIER LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTAL DAMAGES, LOSS OF DATA OR LOST PROFITS, EVEN IF SUPPLIER HAS BEEN ADVISED ON THE POSSIBILITY OF SUCH DAMAGES. All rights, titles and interest, including moral rights in intellectual property to or arising from any Services such as but not limited to analyses, designs, documentation, reports, offers, software, and any preparatory (training) material belonging thereto or other materials developed or provided under this Agreement shall solely be owned by Supplier or its licensors.
5. Fees and payment for Consultancy Services
The fee for the Services performed will be calculated on a time and materials basis at the standard Services rates of Supplier in effect at the time the Services are rendered unless the rates have been explicitly otherwise agreed in the Order or applicable SoW. The Services shall be deemed to be fully accepted by Client upon approval by Client of Supplier’s time sheets, which approval shall not be withheld on unreasonable grounds. Only if explicitly agreed in the SoW, the Services performed will be charged on a fixed price basis. At Client’s request, Supplier may provide an estimate of charges for the Services, but any such estimate shall not be binding on Supplier or convert the terms into a fixed price contract with respect to such Services. Client shall at the end of each calendar month for the work performed in the past month reimburse Supplier for the agreed fees, reasonable costs for travel and costs and expenses connected to the performance of the Services insofar as (i) such cost are in compliance with Client’s travel policy, and (ii) Supplier substantiates such cost with receipts. All cost for living and expenses in compliance with Client’s travel policy which have already been incurred by Supplier prior to an early termination of this Agreement by Client, shall be borne by Client. Invoices shall be due and payable in full within thirty (30) calendar days from date of invoice. All amounts required to be paid by Client under any SoW shall be paid in Euros or in U.S., Dollars, unless explicitly otherwise agreed to in the SoW. Any amount not paid within thirty (30) calendar days from date of invoice will be subject to payment of statutory trade interest or in the U.S., at the highest interest rate permitted by applicable law. Client shall further be responsible for all costs incurred by Supplier in connection with any efforts to recover payments due from Client, including without limitation, professional fees and legal costs. Client also agrees to pay all VAT, sales, local use or other taxes applicable to the Services supplied under a SoW, or any fees or duties arising out of the billings for the Services (other than taxes on the net income of Supplier) as well as applicable banking transfer costs. Supplier is entitled to invoice the VAT or other tax on any invoice unless otherwise explicitly agreed in writing. If, at the request of or with prior written consent of Client, Supplier has performed work or rendered other performances which go beyond the substance or scope of the agreed Services, Client shall pay for that work or performance according to the then standard Services rates of Supplier on a time and material basis. Client is not entitled to withhold any payments. Supplier will not refund any payments made by Client.
6. Warranty Consultancy Services
Supplier makes no warranties whether express, implied, out of custom, oral, written or statutory, regarding or relating to the Services provided to Client to the maximum extent permissible by law. Supplier SPECIFICALLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OF ANY SERVICES OR DELIVERABLES PROVIDED HEREUNDER OR ANY WARRANTY OF CORRECTNESS, ACCURACY, RELIABILITY OR OTHERWISE OR THAT THE PRODUCTS, SERVICES OR DELIVERABLES SHALL MEET CLIENT’S REQUIREMENTS. The performance of the Software, Services or Deliverables may vary with various manufacturers’ equipment with which they are used and Client understands, represents and warrants that Supplier is not responsible for and shall have no liability for hardware, software or other items or any services provided by any persons other than Supplier. Client accepts that work or performances which exceed the substance or scope of the agreed Services, may affect the agreed or expected time of completion of the Services and the mutual responsibilities of Client and Supplier. If a fixed price has been agreed, Supplier shall, upon request, inform Client in writing in advance about the financial consequences of the additional work or performance.
Tasks that are the primary responsibility of Client’s personnel will remain Client’s responsibility and will remain under Client’s supervision, management and control, even if Supplier assists Client in performing such tasks. Supplier will not be responsible for any migration, re-installation, update or re-implementation Services in connection with releases or new version of the Software or related products, unless Client separately contracts for such Services in an approved SoW. Supplier hereby grants to Client a perpetual, non-exclusive, non-(sub)licensable, nontransferable right to use the Services , subject to the limitations in the SoW, provided all fees have been paid by Client. Nothing contained in this Agreement shall be construed as conferring, by implication, estoppel or otherwise, any license or other right except when licenses and rights are expressly granted in this Agreement. Any other use, including but not limited to by way of resale, renting, outsourcing, leasing or otherwise is prohibited. Client warrants and agrees that Deliverables will be used only for its internal business. If and insofar as Supplier provides software, hardware and/or services from third parties to Client, those third parties' terms and conditions shall replace the provisions in the Agreement and shall apply with regard to that software, hardware and/or services, provided that Supplier notifies Client in writing. Client shall accept the above-referenced third party terms and conditions. If and insofar as such third party terms and conditions are deemed or declared inapplicable to the relationship between Client and Supplier for whatever reason, the provisions of the Agreement and the SoW shall fully apply.