 |
 |
Terms and Conditions for Supply of Services (USA)
1. Interpretation
1.1 The definitions and rules of interpretation set forth in this Section 1 apply in these Terms and Conditions.
|
Contract |
any Contract between the Supplier and the Customer for the provision of the Services, incorporating these Terms and Conditions, including, without limitation the SOW. |
|
Customer |
the person, firm or company who purchases Services from the Supplier, on these Terms and Conditions. |
|
Deliverables |
the deliverables specified in the Statement of Work. |
|
Document |
includes, without limitation, in addition to any document in writing, any drawing, map, plan, diagram, design, picture or other image, tape, disk or other device or record embodying information in any form. |
|
Customer Materials |
all Documents, information and materials provided by the Customer relating to the Services including (without limitation), computer programs, data, reports and specifications. |
|
Intellectual Property Rights |
all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights and all similar or equivalent rights or forms of protection in any part of the world. |
|
Project |
a project as set out in the Statement of Work. |
|
Pre-existing Materials |
any and all Documents, information and materials provided by the Supplier relating to the Services which existed prior to the commencement of the Contract including, but not limited to, any computer programs, data, reports and specifications and any Documents which are specifically highlighted as being Pre-existing Materials in the Statement of Work. |
|
Services |
the services to be provided by the Supplier under the Contract as set out in the Statement of Work, together with any other services which the Supplier provides, or agrees in writing to provide, to the Customer from time to time. |
|
Statement of Work |
means the statement of work issued by the Supplier describing the performance standards, facilities, functions and technical requirements of the Services, as may be amended in writing by the parties from time to time. |
|
Supplier |
Romonet, Inc. |
|
Tax |
Sales, use, excise or similar tax imposed by any governmental agency in connection with the provision of the Services, including without limitation any value added tax chargeable under English law. |
1.2 Headings in these Terms and Conditions shall not affect their interpretation.
1.3 A person includes a natural person, corporation, limited liability company, limited partnership or similar legal entity.
1.4 The schedules, exhibits, and attachments to these Terms and Conditions and/or the SOW are part of the Contract.
1.5 A reference to writing or written includes faxes but not e-mail.
2. Application of Terms and Conditions
2.1 These Terms and Conditions shall prevail over any inconsistent terms contained, or referred to, in the Customer’s purchase order, confirmation of order, acceptance of a quotation or specification or other Document supplied by the Customer or implied by law, trade custom, practice or course of dealing.
2.2 The Customer’s purchase order, or the Customer’s acceptance of a quotation for Services by the Supplier, constitutes an offer by the Customer to purchase the Services specified in it on these Terms and Conditions. No offer placed by the Customer shall be accepted by the Supplier other than by a written acknowledgement issued and executed by the Supplier; or (if earlier) by the Supplier starting to provide the Services, at which time a contract for the supply and purchase of the Services on these Terms and Conditions will be established.
2.3 Quotations are given by the Supplier on the basis that no Contract shall come into existence except in accordance with Section 2.2 above. Any quotation is valid for a period of 30 calendar days from its date, provided that the Supplier may withdraw or modify a quotation at any time.
3.1 The Services supplied under the Contract shall be provided by the Supplier to the Customer commencing on the date specified in the Statement of Work.
3.2 Subject to Section 10.1 below, the Services supplied under the Contract shall continue to be supplied until the Project is completed in accordance with the timeframe set out in the Statement of Work.
4.1 The Supplier shall use commercially reasonable efforts to provide the Services and to deliver the Deliverables to the Customer in accordance with the Statement of Work in all material respects.
4.2 The Supplier shall use commercially reasonable efforts to meet any performance dates specified in the Statement of Work but any such dates shall be estimates only.
5.1 The Customer shall:
5.1.1 co-operate with the Supplier in all matters relating to the Services;
5.1.2 provide the Supplier, its agents, subcontractors, consultants and employees, in a timely manner and at no charge, with access to the Customer’s premises, office accommodation, data and other facilities as required by the Supplier;
5.1.3 provide to the Supplier, in a timely manner, such Customer Material and other information as the Supplier may require and ensure that it is accurate in all material respects; and
5.1.4 obtain prior to commencement of the Services and maintain all necessary licenses and consents and comply with all relevant legislation in relation to the Services and the use of Customer Material.
5.2 If the Supplier’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants or employees, the Supplier shall not be liable for any costs, charges or losses sustained or incurred by the Customer arising directly or indirectly from such prevention or delay.
5.3 The Customer shall be liable to pay to the Supplier, on demand, all reasonable costs, charges or losses sustained or incurred by the Supplier arising out of Customer’s fraud, negligence, failure to perform or delay in the performance of any of its obligations under the Contract.
6.1 In consideration of the provision of the Services by the Supplier, the Customer shall pay the charges as set out in the Statement of Work, which shall specify whether they shall be on a time and materials basis, a fixed price basis or a combination of each.
6.2 Any fixed price and daily rate contained in the Statement of Work excludes:
6.2.1 the cost of hotel, food, travel and any other ancillary expenses reasonably incurred by the individuals whom the Supplier engages in connection with the Services, the cost of any materials and the cost of services reasonably and properly provided by third parties and required by the Supplier for the supply of the Services. Such expenses, materials and third party services shall be invoiced by the Supplier at cost; and
6.2.2 Taxes, which the Supplier shall add to its invoices at the appropriate rate.
6.3 The Customer shall pay each invoice submitted to it by the Supplier, in full and in cleared U.S. dollars, within 30 calendar days of receipt to a bank account specified in writing by the Supplier.
6.4 Without prejudice to any other right or remedy that it may have, if the Customer fails to pay the Supplier on the due date, the Supplier may:
6.4.1 charge a late fee on such sum from the due date for payment at the annual rate of one percent per month until payment is made; and
6.4.2 suspend all Services until payment has been made in full.
6.5 Time for payment shall be of the essence of the Contract.
6.7 The Supplier may, without prejudice to any other rights it may have, set off any liability of the Customer to the Supplier against any liability of the Supplier to the Customer.
6.8 The Supplier reserves the right to charge the Customer for any costs fees and charges including any internal administration costs incurred by the Supplier in any activity required to recover any payment not made by the Customer, or any action required following default by the Customer in observing these Terms and Conditions.
7. Intellectual Property Rights
7.1 As between the Customer and the Supplier, all Intellectual Property Rights and all other rights in the Deliverables and the Pre-existing Materials shall be owned by the Supplier. Subject to Section 7.1 below, the Supplier licenses all such rights to the Customer free of charge and on a non-exclusive, worldwide basis to such extent as is necessary to enable the Customer to make reasonable use of the Deliverables and the Services as contemplated in the Contract.
7.2 Section 7.1 shall not apply to any software supplied by the Supplier, the use of which is governed by separate agreement.
8. Confidentiality and the Supplier’s Property
8.1 Both parties, the Customer and the Supplier, shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed by one party to the other party, its employees, agents, consultants or subcontractors and any other confidential information concerning the party’s business or its products which the other party may obtain.
8.2 Either party may disclose such information only:
8.2.1 to its employees, officers, representatives, advisers, agents or subcontractors who need to know such information for the purposes of carrying out the party’s obligations under the Contract; and
8.2.2 as may be required by law, court order or any governmental or regulatory authority.
8.3 Each party shall ensure that its employees, officers, representatives, advisers, agents or subcontractors to whom it discloses such information comply with this Section 8.
8.4 Neither party shall use any such information for any purpose other than to perform its obligations under the Contract.
8.5 All materials, equipment and tools, drawings, specifications and data supplied by the Supplier to the Customer (including, but not limited to, Pre-existing Materials) shall, at all times, be and remain the exclusive property of the Supplier, but shall be held by the Customer in safe custody at its own risk and maintained and kept in good condition by the Customer until returned to the Supplier, and shall not be disposed of or used other than in accordance with the Supplier’s written instructions or authorization.
9. Disclaimers; Limitation of Liability
9.1 NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THESE TERMS AND CONDITIONS: (i) SUPPLIER’S MAXIMUM AGGREGATE LIABILITY UNDER OR RELATED TO THIS AGREEMENT REGARDLESS OF LEGAL THEORY IS LIMITED TO THE AMOUNT ACTUALLY PAID BY CUSTOMER TO SUPPLIER AND (ii) NEITHER PARTY SHALL HAVE ANY LIABILITY UNDER OR RELATED TO THIS AGREEMENT FOR ANY LOSS OF PROFIT OR REVENUE OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES, EVEN IF MADE AWARE OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.
9.2 EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, EACH PARTY EXPRESSLY DISCLAIMS ANY EXPRESS, IMPLIED, OR STATUTORY WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, AND FITNESS FOR A PARTICULAR PURPOSE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED.
9.3 The parties expressly agree that Supplier will have no liability hereunder related to or arising from (i) modification of Deliverables by Customer or any third party or (ii) any Deliverables or Services provided in accordance with specifications provided by Customer.
10. Termination
10.1 Without prejudice to any other rights or remedies which the parties may have, either party may terminate the Contract for convenience without liability to the other on giving the other not less than 3 months’ written notice. If Customer terminates the Contract and/or a SOW for convenience, Customer will pay for all Services scheduled through the effective termination date and all expenses reasonably incurred through the effective termination date. Either party may also terminate the Contract immediately on giving notice to the other if:
10.1.1 the other party fails to pay any amount due under the Contract on the due date for payment and remains in default for more than seven calendar days after being notified in writing to make such payment; or
10.1.2 the other party commits a material breach of the Contract (other than a failure to pay money when due) and fails to remedy that breach within 30 calendar days of that party being notified in writing of the breach; provided that if the breach is irremediable, such termination shall be effective immediately upon receipt of such notice; or
10.1.3 the other party repeatedly breaches any of the terms of the Contract in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of the Contract; or
10.1.4 the other party: (i) voluntarily or involuntarily becomes the subject of a petition in bankruptcy or of any proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors that is not dismissed or discharged within 60 days of being commenced; (ii) admits in writing its inability to pay its debts generally as they become due (or takes any corporate action tantamount to such admission); (iii) makes an assignment for the benefit of its creditors; or (iv) ceases to do business as a going concern.
10.2 The parties acknowledge and agree that any breach of Sections 5, 6, 7 or 8 shall constitute a material breach for the purposes of this Section 10.1.
10.3 On termination of the Contract for any reason:
10.3.1 the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Supplier may submit an invoice, which shall be payable immediately on receipt;
10.3.2 the Customer shall, within a reasonable time, return all of the Supplier’s Equipment, Pre-existing Materials and Deliverables. If the Customer fails to do so, then the Supplier may enter the Customer’s premises and take possession of them. Until they have been returned or repossessed, the Customer shall be solely responsible for their safe keeping; and
10.3.3 the accrued rights and liabilities of the parties as at termination shall not be affected.
10.4 On termination of the Contract (however arising), the Sections 7, 8, 9 and 20, and any other provisions which by their terms are intended to survive shall survive and continue in full force and effect.
The Supplier shall have no liability to the Customer under the Contract if it is prevented from, or delayed in performing, its obligations under the Contract or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including (without limitation) strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
12.2 Subject to Section 12.1, no variation of the Contract or these Terms and Conditions or of any of the documents referred to therein shall be valid unless it is in writing and signed by or on behalf of each of the parties.
13.1 A waiver of any right under the Contract is only effective if it is in writing and it applies only to the circumstances for which it is given. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that (or any other) right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that (or any other) right or remedy.
13.2 Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
14. Severability
14.1 If a provision of the Contract (or part of any provision) is found illegal, invalid or unenforceable, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
15.1 The Contract constitutes the entire agreement between the parties and supersedes all previous agreements, written and oral, between the parties relating to its subject matter.
15.2 Each party acknowledges that, in entering into the Contract, it has not relied on, and shall have no right or remedy in respect of, any statement, representation or warranty not expressly set forth in the Contract.
16.1 The Customer shall not, without the prior written consent of the Supplier, assign, transfer, encumber or subcontract all or any of its rights or obligations under the Contract.
16.2 The Supplier may at any time assign, transfer or encumber any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.
Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
A person who is not a party to the Contract shall not have any rights under or in connection with it.
19.1 Any notice, demand, request, or other communication required or permitted to be given under this Agreement: (1) shall be made in writing; (2) shall be delivered by one of the following methods: (i) by personal delivery (with notice deemed given when delivered personally); (ii) by overnight courier (with notice deemed given upon written verification of receipt); or (iii) by certified or registered mail, return receipt requested (with notice deemed given upon verification of receipt); and (3) shall be addressed to a party as provided in the SOW or such other address as such party may request by notifying the other party (or parties) thereof in writing.
20. Governing Law and Jurisdiction
20.1 The Contract, and any dispute or claim arising out of or in connection with it or its subject matter, shall be governed by and construed in accordance with the laws of the State of New York, U.S., as applied to contracts wholly made and performed therein by residents thereof.
20.2 Any dispute that may arise between the parties that they are unable to resolve informally shall be brought only in the state and federal courts located in the County of New York, New York, U.S, and the parties hereby consent to the personal jurisdiction and venue of such courts. The prevailing party in any litigation or proceeding related to this Agreement shall be entitled to reimbursement of reasonable attorneys' fees and related costs from the party that did not prevail.
