GENERAL TERMS AND CONDITIONS for Services
§ 1 Applicability
(a) These terms and conditions for services (these “Terms“) are the only terms that govern the provision of services by Staufen.USA, Inc. (“Service Provider“) to all customers of Service Provider (“Customer“).
(b) The accompanying order confirmation (the “Order Confirmation“), the Consulting Agreement, the Framework Agreement and/or the Quote, as the case maybe, (the Quote, the Consulting Agreement, the Framework Agreement and the Order Confirmation together the “Scope of Service”) and these Terms (collectively, this “Agreement“) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. In the event of any conflict between these Terms and the Scope of Service, these Terms/the Scope of Service] shall govern[./, unless the Scope of Service expressly states that the terms and conditions of the Scope of Service shall control].
(c) These Terms prevail over any of Customer’s general terms and conditions regardless whether or when Customer has submitted its request for proposal, order, or such terms. Provision of services to Customer does not constitute acceptance of any of Customer’s terms and conditions and does not serve to modify or amend these Terms.
§ 2 Services
Service Provider shall provide the services to Customer as described in the Order Confirmation (the “Services“) in accordance with these Terms.
§ 3 Performance Dates
[Service Provider shall use reasonable efforts to meet any performance dates specified in the Order Confirmation, and any such dates shall be estimates only. / Service Provider shall provide the Services on the Performance Dates as separately agreed to between the parties in writing/as provided for in the Order Confirmation.]
§ 4 Customer’s Obligations. Customer shall:
(a) Appoint a project manager for the Services who shall be the contact person for Service Provider and be authorized to represent Customer in connection with all required business activities in order to facilitate the provisions of the Services;
(b) cooperate with Service Provider in all matters relating to the Services and provide such access to Customer’s premises, and such office accommodation and other facilities, including but not limited to providing Service Provider access to Customer’s information and communications technology and Customer’s employees, as may reasonably be requested by Service Provider, for the purposes of performing the Services;
(c) respond promptly to any Service Provider request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for Service Provider to perform Services in accordance with the requirements of this Agreement;
(d) provide such Customer materials or information as Service Provider may reasonably request to carry out the Services in a timely manner and ensure that such Customer materials or information are complete and accurate in all material respects; and
(e) obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the Services before the date on which the Services are to start.
§ 5 Customer’s Acts or Omissions
If Service Provider’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Customer or its agents, subcontractors, consultants, or employees, Service Provider shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges, or losses sustained or incurred by Customer, in each case, to the extent arising directly or indirectly from such prevention or delay.
§ 6 Change Orders
(a) Once an order is confirmed by Order Confirmation issued by Service Provider, changes to the order can only be made pursuant to this Section 6.
(b) If either party wishes to change the scope or performance of the Services, it shall submit details of the requested change to the other party in writing. Service Provider shall, within a reasonable time after such request, provide a written estimate to Customer of:
- (i) the likely time required to implement the change;
- (ii) any necessary variations to the fees and other charges for the Services arising from the change;
- (iii) the likely effect of the change on the Services; and
- (iv) any other impact the change might have on the performance of this Agreement.
(c) Promptly after receipt of the written estimate, the parties shall negotiate and agree in writing on the terms of such change (a “Change Order“). Neither party shall be bound by any Change Order unless mutually agreed upon in writing in accordance with Section 28.
(d) Service Provider may charge for the time it spends assessing and documenting a change request from Customer on a time and materials basis in accordance with the Order Confirmation.
(e) Mutually agreed-on consultations appointments may only be postponed or cancelled by Customer by provision Service Provider with at least 21 days prior written notice (“Notice Period”). If Customer does not meet the Notice Period required by this Section, Customer will be charged with a late cancellation/postponement fee in the amount of fifty percent (50%) of the agreed-on consultation fee for the cancelled/postponed appointment.
§ 7 Fees and Expenses; Payment Terms; Interest on Late Payments
(a) In consideration of the provision of the Services by Service Provider and the rights granted to Customer under this Agreement, Customer shall pay the fees set forth in the Order Confirmation.
(b) The Fees as set forth in the Order Confirmation shall consist of the agreed-on fees for the consulting services, plus a lump sum for travel expenses, back office and communication costs including Service Provider’s billing rate for travel time to customer’s facilities.
(c) Service Provider shall issue monthly invoices to Customer. For services packages with a fixed flat fee, Service Provider will bill in installments. Customer shall pay all invoiced amounts due to Service Provider within fourteen (14) days from the date of Service Provider’s invoice. Customer shall make all payments hereunder in US dollars by [wire transfer/check/[OTHER PAYMENT METHOD]].
(d) In the event payments are not received by Service Provider within twenty-one (21) days after becoming due, Service Provider may:
- charge interest on any such unpaid amounts at a rate of 1% per month or, if lower, the maximum amount permitted under applicable law, from the date such payment was due until the date paid; and
- suspend performance for all Services until payment has been made in full.
§ 8 Taxes
Customer shall be responsible for all sales, use, value added, withholding and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by Customer hereunder.
§ 9 Intellectual Property
All intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names, and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, “Intellectual Property Rights“) in and to all documents, work product, and other materials that are delivered to Customer under this Agreement or prepared by or on behalf of Service Provider in the course of performing the Services, including any items identified as such in the Order Confirmation (collectively, the “Deliverables“) shall be owned by Service Provider. Service Provider hereby grants Customer a license to use all Intellectual Property Rights free of additional charge and on a non-exclusive, worldwide, non-transferable, non-sublicensable, fully paid-up, royalty-free, and perpetual basis to the extent necessary to enable Customer to make reasonable use of the Deliverables and the Services. The Deliverables shall be deemed Confidential Information as defined below and shall be used exclusively by Customer and Customer’s employees to achieve the project objectives described in Service Provider’s Order Confirmation, project description and/or scope of services issued by Service Provider (the “Project Objectives”). Customer may make only those copies of the Deliverables as are deemed reasonably necessary to achieve the Project Objectives. Disclosure of the Deliverables to third-parties require Service Provider’s prior written consent.
§ 10 Confidential Information of Service Provider
(a) All non-public, confidential or proprietary information of Service Provider, including, but not limited to, trade secrets, technology, information pertaining to business operations and strategies, and information pertaining to customers, pricing, and marketing (collectively, “Service Provider Confidential Information“), disclosed by Service Provider to Customer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with the provision of the Services and this Agreement is confidential, and shall not be disclosed or copied by Customer without the prior written consent of Service Provider. Service Provider Confidential Information does not include information that is:
- (i) in the public domain;
- (ii) known to Customer at the time of disclosure; or
- (iii) rightfully obtained by Customer on a non-confidential basis from a third party.
(b) Customer agrees to use the Service Provider Confidential Information only to make use of the Services and Deliverables.
(c) Service Provider shall be entitled to injunctive relief for any violation of this Section.
§ 11 Confidential Information of Customer
(a) All non-public, confidential or proprietary information of Customer, including, but not limited to, trade secrets, technology, information pertaining to business operations and strategies, and information pertaining to customers, pricing, and marketing (collectively, “Customer Confidential Information“), disclosed by Customer to Service Provider, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with the provision of the Services and this Agreement is confidential, and shall not be disclosed by Service Provider without the prior written consent of Service Provider. Confidential Information does not include information that is:
- (i) in the public domain;
- (ii) known to Service Provider at the time of disclosure; or
- (iii) rightfully obtained by Service Provider on a non-confidential basis from a third party.
(b) Service Provider agrees to use the Confidential Information only to provide the Services and Deliverables.
(c) Customer shall be entitled to injunctive relief for any violation of this Section.
§ 12 Customer’s Privacy
Service Provider respects Customer’s privacy and is committed to the careful handling of personal data. Service Provider’s technical safety precautions for its data processing systems are state of the art and are maintained and reviewed frequently. For questions regarding Service Provider’s data protection, please contact Service Provider’s data security officer at [firstname.lastname@example.org].
§ 13 Non-Solicitation
During the time period where Services are provided under these Terms and for a period of 12 months thereafter, neither party shall, directly or indirectly, in any manner solicit or induce for employment any person who performed any work under these Terms who is then in the employ of the other party. A general advertisement or notice of a job listing or opening or other similar general publication of a job search or availability to fill employment positions, including on the internet, shall not be construed as a solicitation or inducement for the purposes of this Section 18, and the hiring of any employee or independent contractor who freely responds thereto shall not be a breach of this Section 18.
§ 14 Representation and Warranty
(a) Service Provider represents and warrants to Customer that it shall perform the Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and shall devote adequate resources to meet its obligations under this Agreement.
§ 15 Disclaimer of Warranties
EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 14(a) ABOVE, SERVICE PROVIDER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE SERVICES, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; OR (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (C) WARRANTY OF TITLE; OR (D) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
§ 16 Limitation of Liability
(a) IN NO EVENT SHALL SERVICE PROVIDER BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SERVICE PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. SERVICE PROVIDER DISCLAIMS ALL LIABILITY FOR ANY DAMAGES AND COSTS IN CONNECTION WITH A SUSPENSION OF ITS PERFORMANCE UNDER SECTION 7(d)(ii) OF THESE TERMS.
(b) IN NO EVENT SHALL SERVICE PROVIDER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO SERVICE PROVIDER PURSUANT TO THE APPLICABLE ORDER CONFIRMATION IN THE ONE YEAR PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
(c) The limitation of liability set forth in Section 16(b) above shall not apply to
- (i) liability resulting from Service Provider’s gross negligence or willful misconduct and
- (ii) death or bodily injury resulting from Service Provider’s negligent acts or omissions.
§ 17 Termination
In addition to any remedies that may be provided under this Agreement, Service Provider may terminate this Agreement with immediate effect upon written notice to Customer, if Customer:
(a) fails to pay any amount when due under this Agreement and such failure continues for 14 days after Customer’s receipt of written notice of nonpayment;
(b) has not otherwise performed or complied with any of the terms of this Agreement, in whole or in part; or
(c) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors.
§ 18 Waiver
No waiver by Service Provider of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Service Provider. No failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement operates or may be construed as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
§ 19 Force Majeure
The Service Provider shall not be liable or responsible to Customer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Service Provider including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, a global health emergency, such as a pandemic, revolution, insurrection, epidemic, lock-outs, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or telecommunication breakdown or power outage, provided that, if the event in question continues for a continuous period in excess of 30 days, Customer shall be entitled to give notice in writing to Service Provider to terminate this Agreement.
§ 20 Assignment
Customer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Service Provider. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Customer of any of its obligations under this Agreement.
§ 21 Relationship of the Parties
The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
§ 22 Governing Law
All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of New York.
§ 23 Submission to Jurisdiction
Any legal suit, action, or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of New York in each case located in the City of New York and County of New York, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
§ 24 Notices
All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice“) shall be in writing and addressed to the parties at the addresses set forth in the Order Confirmation or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees prepaid), facsimile (with confirmation of transmission) [or email] or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
§ 25 Severability
If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
§ 26 Survival
Provisions of these Terms, which by their nature should apply beyond their terms, will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Confidentiality, Limitation of Liability, and Survival.
§ 27 Amendment and Modification
This Agreement may only be amended or modified in a writing which specifically states that it amends this Agreement and is signed by an authorized representative of each party.
Last updated February 2020