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.
4. Indemnification
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.
7. Miscellaneous
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.