AFFAIRS
GENERAL TERMS OF SERVICE
THE SHADOWBOX GROUP (SBG) CONSULTANCY-MANAGEMENT SERVICES. HESE GENERAL TERMS AND CONDITIONS (“TERMS”) APPLY TO ALL CONSULTANCY SERVICES THAT THE CONSULTANT WILL PROVIDE FOR OR ON BEHALF OF THE PRINCIPAL.
SCOPE OF THE GENERAL TERMS AND CONDITIONS
THE FOLLOWING GENERAL TERMS AND CONDITIONS (TANDC) SHALL APPLY TO ALL CURRENT AND FUTURE CONSULTING SERVICE CONTRACTS EXCEPT 3PL SERVICES BETWEEN THE CLIENT (HEREINAFTER “CLIENT”) AND SBG-CORNERMAN, INC. INTERNATIONAL SERVICES, INC. (HEREINAFTER “SBG-CORNERMAN, INC.”). EXCEPTIONS TO THE GENERAL TANDC, IN PARTICULAR, ALSO TANDC LAID DOWN BY THE CLIENT SHALL ONLY APPLY IF THEY HAVE BEEN EXPRESSLY AGREED TO AND CONFIRMED IN WRITING BY SBG-CORNERMAN, INC.. ALL CONSULTING SERVICE CONTRACTS AND OTHER AGREEMENTS ARE ONLY BINDING IF CONFIRMED BY BOTH PARTIES AND DULY SIGNED; THEY ARE MUTUALLY BINDING ONLY TO THE EXTENT SET FORTH IN THE WRITTEN CONTRACTUAL AGREEMENT.
SCOPE AND REALIZATION OF THE SERVICE CONTRACT
THE SCOPE OF SERVICE IS DETERMINED ACCORDING TO THE WRITTEN CONTRACT, ADDENDUMS AND A LISTING OF APPLICABLE CONTRACT SPECIFICATIONS. CHANGES TO THE SCOPE OF CONSULTING SERVICES REQUIRE A WRITTEN AGREEMENT BETWEEN THE CLIENT AND SBG-CORNERMAN, INC.. DATES OF SERVICE COMPLETION ARE ONLY PROVIDED AS APPROXIMATION AND WILL NOT BE BINDING UNLESS EXPRESSLY MARKED SO IN WRITING. SBG-CORNERMAN, INC. HAS THE RIGHT TO SELECT EMPLOYEES ASSIGNED TO THE RESPECTIVE PROJECT BY ITSELF. SBG-CORNERMAN, INC. RESERVES THE RIGHT TO DECIDE WHETHER SERVICES WILL BE PROVIDED AT CLIENT’S SITE OR AT OTHER LOCATIONS. ALTHOUGH EMPLOYEES OF SBG CORNERMAN, INC. MIGHT PROVIDE SERVICES AT CLIENT’S SITE, THE MANAGEMENT AND DIRECTION FOR ALL ON SITES IS AN SBG-CORNERMAN, INC. RESPONSIBILITY. SBG-CORNERMAN, INC. MAY CONTRACT WITH OTHER EXTERNAL SERVICE PROVIDERS UNLESS IN PERFORMANCE OF THE CONTRACT UNLESS CONTRACTUALLY PROHIBITED BY SERVICE CONTRACT. IF INCREASED COSTS ARE CAUSED BY THE CLIENT’S FAILURE TO TIMELY MEET ITS DUTY TO CO-OPERATE, CLIENT SHALL REIMBURSE SBG-CORNERMAN, INC. FOR ALL INCREMENTAL COSTS. THE TIME FOR PERFORMANCE, WHERE AGREED, SHALL BE EXTENDED BY ADDITIONAL TIME REQUIRED FOR THE RESUMPTION OF PERFORMANCE AFTER ELIMINATION OF SUCH OBSTRUCTION. SBG-CORNERMAN, INC. IS NOT RESPONSIBLE FOR DELAYS OR LACK OF PERFORMANCE DUE TO ACTS OF GOD.
DUTY OF DISCLOSURE BY THE CLIENT
IT IS THE RESPONSIBILITY OF THE CLIENT TO ENSURE THAT ALL DOCUMENTS AND INFORMATION NEEDED FOR THE PERFORMANCE AND COMPLETION OF THE CONTRACT ARE MADE AVAILABLE TO SBG CORNERMAN, INC. ON A TIMELY BASIS WITHOUT HAVING TO BE SPECIFICALLY REQUESTED, AND THAT SBG CORNERMAN, INC. BE INFORMED OF ALL OCCURRENCES AND CIRCUMSTANCES THAT ARE OF SIGNIFICANCE TO THE IMPLEMENTATION OF THE CONTRACT.
INTELLECTUAL PROPERTY AND COPYRIGHTS
SBG-CORNERMAN, INC. RETAINS COPYRIGHT AND ALL INTANGIBLE PROPERTY RIGHTS WITH RESPECT OF SBG-CORNERMAN, INC. SOFTWARE USED IN THE PERFORMANCE OF SERVICES. SBG-CORNERMAN, INC. ALSO RETAINS COPYRIGHT TO OTHER SOFTWARE AND INTANGIBLES DEVELOPED WITHIN THE SCOPE OF SERVICES PROVIDED BY SBG-CORNERMAN, INC., UNLESS OTHERWISE DOCUMENTED.
LIMITATION OF LIABILITY
SBG-CORNERMAN, INC. HEREBY REPRESENTS AND WARRANTS TO CLIENT THAT IT HAS INSURANCE POLICIES IN PLACE AS REQUIRED BY LAW. AT CLIENT SITES WHERE SBG-CORNERMAN, INC. HAS A SIGNIFICANT PRESENCE, CLIENT SHALL MAINTAIN GENERAL LIABILITY INSURANCE COVERAGE WHICH INCLUDES SBG-CORNERMAN, INC. AS AN ADDITIONAL INSURED, AND SHALL FURNISH TO SBG CORNERMAN, INC. A CERTIFICATE OF INSURANCE FROM ITS INSURANCE CARRIER(S) CERTIFYING THAT INSURANCE COVERAGE IS IN EFFECT AND WILL NOT BE CANCELED OR MATERIALLY CHANGED WITHOUT SBG-CORNERMAN, INC.’S WRITTEN CONSENT. SBG-CORNERMAN, INC. WILL ENDEAVOR TO ENSURE THAT ALL TRANSACTIONS ARE REVIEWED PER THE REQUIREMENTS AND SPECIFICATIONS OF CLIENT. CLIENT IS RESPONSIBLE FOR THE ACCURACY AND TIMELINESS OF ALL DATA AND IS LIABLE FOR ALL TAXES, INTEREST, PENALTIES AND OTHER FEES AS MAY BE ASSESSED BY THE GOVERNMENT FOR NON-COMPLIANCE, OMISSIONS, ERRORS AND AUDITS. SBG-CORNERMAN, INC. DISCLAIMS ANY AND ALL EXPRESS OR IMPLIED WARRANTIES IN CONNECTION WITH ITS SERVICES. SBG-CORNERMAN, INC. SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO DAMAGES FOR LOST REVENUE, LOST PROFITS, BUSINESS INTERRUPTION, LOST INFORMATION OR DATA, COMPUTER INTERRUPTION AND THE LIKE) OR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES ARISING FROM OR RELATED TO THE USE OF SBG-CORNERMAN, INC.’S SERVICES. CLIENT SHALL TAKE ALL NECESSARY PRECAUTIONS TO PREVENT THE OCCURRENCE OF ANY INJURY TO PERSONS OR TO PROPERTY DURING THE PERFORMANCE OF WORK AND ENSURE THAT CLIENT AND ITS PERSONNEL NEITHER POSE A THREAT TO SBG-CORNERMAN, INC.’S SAFE WORK ENVIRONMENT NOR THE INTEGRITY OF ITS BUSINESS OPERATIONS. EXCEPT TO THE EXTENT THAT ANY INJURY OR DAMAGE IS DUE TO SBG-CORNERMAN, INC., CLIENT SHALL RELEASE, DEFEND, HOLD HARMLESS AND INDEMNIFY SBG CORNERMAN, INC., ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, REPRESENTATIVES, SUCCESSORS AND ASSIGNS, WHETHER ACTING IN THE COURSE OF THEIR EMPLOYMENT OR OTHERWISE, AGAINST ANY AND ALL SUITS, ACTIONS OR PROCEEDINGS, AT LAW OR IN EQUITY, AND FROM ANY AND ALL CLAIMS, DEMANDS, LOSSES, JUDGMENTS, DAMAGES, COSTS, EXPENSES OR LIABILITIES, INCLUDING WITHOUT LIMITATION CLAIMS FOR PERSONAL OR PROPERTY DAMAGE, RESULTING FROM OR IN ANY WAY CONNECTED ANY ACT OR OMISSION OF CLIENT’S PERSONNEL, CLIENT ITS AGENTS, EMPLOYEES OR SUBCONTRACTORS IN CONNECTION WITH, BUT NOT LIMITED TO, ALL OF THE REPRESENTATIONS, WARRANTIES OR COVENANTS CONTAINED IN THIS AGREEMENT. IN ADDITION, CLIENT SHALL INDEMNIFY, DEFEND AND HOLD SBG CORNERMAN, INC. HARMLESS FROM AND AGAINST ANY CLAIMS, COSTS OR EXPENSES, INCLUDING, BUT NO LIMITED TO, REASONABLE ATTORNEY’S FEES, ARISING OUT OF OR IN CONNECTION WITH ANY EMPLOYMENT CLAIMS. CLIENT AGREES TO INCLUDE CLAUSE IN ALL RELATED SUBCONTRACTS. SBG-CORNERMAN, INC. SHALL TAKE ALL NECESSARY PRECAUTIONS TO PREVENT THE OCCURRENCE OF ANY INJURY TO PERSONS OR TO PROPERTY DURING THE PROGRESS OF WORK AND ENSURE THAT SBG-CORNERMAN, INC. AND ITS PERSONNEL NEITHER POSE A THREAT TO CLIENT’S SAFE WORK ENVIRONMENT NOR THE INTEGRITY OF ITS BUSINESS OPERATIONS. EXCEPT TO THE EXTENT THAT ANY INJURY OR DAMAGE IS DUE TO CLIENT, SBG CORNERMAN, INC. SHALL RELEASE, DEFEND, HOLD HARMLESS AND INDEMNIFY CLIENT, ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, REPRESENTATIVES, SUCCESSORS AND ASSIGNS, WHETHER ACTING IN THE COURSE OF THEIR EMPLOYMENT OR OTHERWISE, AGAINST ANY AND ALL SUITS, ACTIONS OR PROCEEDINGS, AT LAW OR IN EQUITY, AND FROM ANY AND ALL CLAIMS, DEMANDS, LOSSES, JUDGMENTS, DAMAGES, COSTS, EXPENSES OR LIABILITIES, INCLUDING WITHOUT LIMITATION CLAIMS FOR PERSONAL OR PROPERTY DAMAGE, RESULTING FROM OR IN ANY WAY CONNECTED ANY ACT OR OMISSION OF SBG CORNERMAN, INC.’S PERSONNEL, SBG-CORNERMAN, INC. ITS AGENTS, EMPLOYEES OR SUBCONTRACTORS IN CONNECTION WITH, BUT NOT LIMITED TO, ALL OF THE REPRESENTATIONS, WARRANTIES OR COVENANTS CONTAINED IN THIS AGREEMENT. IN ADDITION, SBG-CORNERMAN, INC. SHALL INDEMNIFY, DEFEND AND HOLD CLIENT HARMLESS FROM AND AGAINST ANY CLAIMS, COSTS OR EXPENSES, INCLUDING, BUT NO LIMITED TO, REASONABLE ATTORNEY’S FEES, ARISING OUT OF OR IN CONNECTION WITH ANY EMPLOYMENT CLAIMS. SBG-CORNERMAN, INC. AGREES TO INCLUDE CLAUSE IN ALL RELATED SUBCONTRACTS.
CONFIDENTIALITY AND DATA PROTECTION
ALL TECHNIQUES, DESIGNS, DRAWINGS, PROCESSES, INVENTIONS, EQUIPMENT, PROPOSALS, SPECIFICATIONS, AND SUCH INFORMATION CONCERNING THE PRODUCTS, SERVICES OR EQUIPMENT DISCLOSED BY EITHER SBG-CORNERMAN, INC. OR CLIENT SHALL BE HELD CONFIDENTIAL AND SHALL NOT BE DISCLOSED BY EITHER PARTY WITHOUT PRIOR WRITTEN CONSENT EXCEPT AS OTHERWISE REQUIRED FOR PERFORMANCE OF THE SERVICES.
FEES AND PAYMENT
THE FEE AND EXPENSE REIMBURSEMENT SHALL BE AGREED UPON BY THE CLIENT AND SBG-CORNERMAN, INC. PER SERVICE CONTRACT. PAYMENT TERMS ARE NET (30) DAYS UNLESS OTHERWISE AGREED UPON IN SERVICE CONTRACT. IF IMPLEMENTATION OF THE CONTRACT IS PREVENTED BY THE CLIENT AFTER THE CONTRACT HAS BEEN SIGNED (FOR EX. DUE TO CANCELLATION), THE BUSINESS CONSULTANT IS NONETHELESS ENTITLED TO PAYMENT FOR THE STIPULATED SCOPE OF CONSULTATION SERVICES. IF THE EXECUTION OF THE CONTRACT DOES NOT OCCUR DUE TO CIRCUMSTANCES WHICH ARE SUBSTANTIALLY CAUSED BY SBG-CORNERMAN, INC., THEN SBG-CORNERMAN, INC. SHALL ONLY BE ENTITLED TO RECEIVE THE PART OF THE FEE WHICH CORRESPONDS TO THOSE SERVICES ALREADY PERFORMED. THIS PARTICULARLY APPLIES IF, DESPITE CANCELLATION, SBG-CORNERMAN, INC.‘S SERVICES UP TO THAT POINT ARE USABLE BY THE CLIENT. APART FROM APPARENT DEFICIENCIES, ANY COMPLAINT ABOUT SBG CORNERMAN, INC.‘S SERVICES DOES NOT JUSTIFY THE RETENTION OF FEES OWED TO SBG-CORNERMAN, INC. IF THE CLIENT IS DELINQUENT ON A DUE PAYMENT, SBG-CORNERMAN, INC. RESERVES THE RIGHT TO RESCIND THE CONTRACT EFFECTIVE IMMEDIATELY AND ASSERT A CLAIM FOR DAMAGES.
GOVERNING LAW AND JURISDICTION
UNLESS AND EXCEPT AS THESE TANDC CONTAIN PROVISIONS TO THE CONTRARY, THE LAWS OF THE STATE OF FLORIDA SHALL GOVERN THESE CONDITIONS. BY ACCEPTING THE SERVICES PROVIDED UNDER THESE CONDITIONS, THE CLIENT IRREVOCABLY AGREES TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE SAID STATE IN AND FOR LEE COUNTY, FLORIDA AND SUBMITS TO THE PERSONAL JURISDICTION OF SAID COURTS.
FORCE MAJEURE
EACH PARTY SHALL BE EXCUSED FROM PERFORMANCE UNDER THE AGREEMENT TO THE EXTENT THAT SUCH PARTY IS PREVENTED FROM PERFORMING, IN WHOLE OR IN PART, BY DELAYS CAUSED BY AN ACT OF GOD, WAR, CIVIL DISTURBANCE, LABOR DISPUTE, OR OTHER CAUSE BEYOND ITS REASONABLE CONTROL. THE NON-PERFORMING PARTY SHALL PROMPTLY GIVE NOTICE OF ITS NON-PERFORMANCE TO THE OTHER PARTY. THE NON-PERFORMING PARTY SHALL MAKE ALL COMMERCIALLY REASONABLE EFFORTS TO REMOVE SUCH CAUSE OF NONPERFORMANCE. ALL OTHER OBLIGATIONS NOT AFFECTED BY SUCH CAUSE OF NONPERFORMANCE SHALL BE IN FULL FORCE AND EFFECT DURING THE PERIOD OF TIME THAT THE AFFECTED OBLIGATION IS SUSPENDED DURING THE CONTINUANCE OF SUCH CAUSE OF NON PERFORMANCE. SHADOWBOX LEGAL: GENERAL TERMS AND CONDITIONS (SBG CONSULTANCY-MANAGEMENT SERVICES) THESE GENERAL TERMS AND CONDITIONS (“TERMS”) APPLY TO ALL CONSULTANCY SERVICES THAT THE CONSULTANT WILL PROVIDE FOR OR ON BEHALF OF THE PRINCIPAL.
DEFINITIONS
1.1 IN THESE TERMS THE FOLLOWING WORDS HAVE THE MEANINGS SET OUT BELOW AND DERIVATIVE WORDS WILL HAVE A CORRESPONDING MEANING: – “AFFILIATE” MEANS, WITH REFERENCE TO A PARTY, ANY OTHER PARTY WHICH: (A) DIRECTLY OR INDIRECTLY CONTROLS OR IS CONTROLLED BY THE FIRST PARTY; OR (B) IS DIRECTLY OR INDIRECTLY CONTROLLED BY A PARTY WHICH ALSO DIRECTLY OR INDIRECTLY CONTROLS THE FIRST PARTY; AND FOR THE PURPOSES OF THIS DEFINITION, A PARTY CONTROLS ANOTHER PARTY IF SUCH PARTY HAS THE POWER TO DIRECT OR CAUSE THE DIRECTION OF THE MANAGEMENT AND POLICIES OF THE OTHER PARTY, WHETHER DIRECTLY OR INDIRECTLY, THROUGH ONE OR MORE INTERMEDIARIES OR OTHERWISE, AND WHETHER BY OWNERSHIP OF SHARES OR OTHER EQUITY INTERESTS, THE HOLDING OF VOTING RIGHTS OR CONTRACTUAL RIGHTS, BY BEING THE GENERAL PARTNER OF A LIMITED PARTNERSHIP, OR OTHERWISE. – “AGREEMENT” MEANS THE LETTER CONCLUDED BETWEEN THE PRINCIPAL AND THE CONSULTANT IN ACCORDANCE WITH ARTICLE 2.1 HEREOF AND ANY DOCUMENTS REFERRED THEREIN OR ATTACHED THERETO, INCLUDING, BUT NOT LIMITED TO, THESE TERMS. – “CONSULTANT” MEANS THE PARTY THAT WILL UNDERTAKE THE SERVICES, AS SPECIFIED IN THE LETTER. – “CONFIDENTIAL INFORMATION” MEANS ANY INFORMATION IN WHATEVER FORM (INCLUDING, WITHOUT LIMITATION, IN WRITTEN, ORAL, VISUAL OR ELECTRONIC FORM OR ANY MAGNETIC OR OPTICAL DISK OR MEMORY AND WHEREVER LOCATED) RELATING TO THE BUSINESS, CUSTOMERS, PRODUCTS, AFFAIRS AND FINANCES OF A PARTY FOR THE TIME BEING CONFIDENTIAL TO THE PARTY OR ITS AFFILIATE(S) AND TRADE SECRETS INCLUDING, WITHOUT LIMITATION, TECHNICAL DATA AND KNOW-HOW RELATING TO THE BUSINESS OF A PARTY OR ITS AFFILIATE(S) OR ANY OF ITS OR THEIR SUPPLIERS, CUSTOMERS, AGENTS, DISTRIBUTORS, SHAREHOLDERS, MANAGEMENT OR BUSINESS CONTACTS, INCLUDING IN PARTICULAR (BUT NOT LIMITED TO) INFORMATION THAT THE CONSULTANT CREATES, DEVELOPS, RECEIVES OR OBTAINS IN CONNECTION WITH THE AGREEMENT WHETHER OR NOT SUCH INFORMATION (IF IN ANYTHING OTHER THAN ORAL FORM) IS MARKED CONFIDENTIAL. – “DELIVERABLES” MEANS ANYTHING IN WRITING OR OTHERWISE TANGIBLE (WHETHER IN HARD COPY OR ELECTRONIC FORMAT), WHICH ARISES OUT OF OR IS MADE, CREATED OR GENERATED IN THE COURSE OF CARRYING OUT THE SERVICES. – “EXPENSES” MEANS ACTUAL COSTS INCURRED BY THE CONSULTANT REASONABLY NECESSARY FOR CARRYING OUT THE SERVICES, INCLUDING BUT NOT LIMITED TO, TRAVELLING, ACCOMMODATION, SUBSISTENCE, OFFICIAL TRANSLATION CHARGES AND CHARGES RELATED TO GOODS AND SERVICES PURCHASED ON THE PRINCIPAL’S BEHALF. – “FEES” MEANS THE FEES CHARGED BY THE CONSULTANT TO THE PRINCIPAL FOR THE PROVISION OF SERVICES, AS SET OUT IN THE LETTER, EXCLUDING VAT AND EXPENSES. – “FORCE MAJEURE EVENT” MEANS ANY CIRCUMSTANCE NOT WITHIN A PARTY’S REASONABLE CONTROL INCLUDING, WITHOUT LIMITATION ACTS OF GOD, FLOOD, DROUGHT, EARTHQUAKE OR OTHER NATURAL DISASTER; EPIDEMIC OR PANDEMIC; TERRORIST ATTACK, CIVIL WAR, CIVIL COMMOTION OR RIOTS, WAR, THREAT OF OR PREPARATION FOR WAR, ARMED CONFLICT, IMPOSITION OF SANCTIONS, EMBARGO, OR BREAKING OFF OF DIPLOMATIC RELATIONS; NUCLEAR, CHEMICAL OR BIOLOGICAL CONTAMINATION OR SONIC BOOM; ANY LAW OR ACTION TAKEN BY A GOVERNMENT OR PUBLIC AUTHORITY, INCLUDING WITHOUT LIMITATION IMPOSING AN EXPORT OR IMPORT RESTRICTION, QUOTA OR PROHIBITION, OR FAILING TO GRANT A NECESSARY LICENSE OR CONSENT; COLLAPSE OF BUILDINGS, FIRE, EXPLOSION OR ACCIDENT; ANY LABOUR OR TRADE DISPUTE, STRIKES, INDUSTRIAL ACTION OR LOCKOUTS; NON PERFORMANCE BY SUPPLIERS OR SUBCONTRACTORS; AND INTERRUPTION OR FAILURE OF UTILITY SERVICE. “INTELLECTUAL PROPERTY RIGHTS” MEANS ALL INTELLECTUAL PROPERTY RIGHTS, INCLUDING PATENTS, RIGHTS TO INVENTIONS, COPYRIGHT AND RELATED RIGHTS, GOODWILL, RIGHTS IN DESIGNS, RIGHTS IN COMPUTER SOFTWARE, TRADE OR SERVICE MARKS, BUSINESS NAMES AND DOMAIN NAMES, DATABASE RIGHTS, RIGHTS TO USE AND PROTECT THE CONFIDENTIALITY OF, CONFIDENTIAL INFORMATION (INCLUDING KNOW-HOW AND TRADE SECRETS) AND ALL OTHER INTELLECTUAL PROPERTY RIGHTS, IN EACH CASE WHETHER REGISTERED OR UNREGISTERED AND INCLUDING ALL APPLICATIONS AND RIGHTS TO APPLY FOR AND BE GRANTED, RENEWALS OR EXTENSIONS OF, AND RIGHTS TO CLAIM PRIORITY FROM, SUCH RIGHTS AND ALL SIMILAR OR EQUIVALENT RIGHTS OR FORMS OF PROTECTION WHICH SUBSIST OR WILL SUBSIST NOW OR IN THE FUTURE IN ANY PART OF THE WORLD. – “JURISDICTION” MEANS THE COUNTRY, STATE OR PROVINCE WHERE THE CONSULTANT HAS ITS CORPORATE SEAT. – “LETTER” MEANS THE (ENGAGEMENT) LETTER DRAWN UP BY THE CONSULTANT TO WHICH THESE TERMS RELATE, DETAILING, AMONG OTHERS, THE SERVICES, THE DELIVERABLES, FEES AND/OR EXPENSES. – “MANDATORY POLICIES” MEANS THE CONSULTANT’S CODE OF CONDUCT AND RELEVANT POLICIES (ON ETHICS, ANTI-SLAVERY AND HUMAN TRAFFICKING, ANTI-BRIBERY, AND CORRUPTION, DATA PROTECTION AND PRIVACY) REASONABLY ESTABLISHED AND AMENDED BY THE CONSULTANT FROM TIME TO TIME, A COPY OF WHICH WILL BE DELIVERED TO THE PRINCIPAL. – “PARTY OR PARTIES” MEANS THE CONSULTANT OR THE PRINCIPAL INDIVIDUALLY OR COLLECTIVELY AS THE CONTEXT MAY REQUIRE. – “PRINCIPAL” MEANS JOINTLY AND SEVERALLY EACH PARTY TO WHOM (A) THE LETTER IS ADDRESSED; AND/OR (B) THE SERVICES AND/OR THE DELIVERABLES ARE TO BE DELIVERED. – “SERVICES” MEANS THE SERVICES AS DESCRIBED IN THE LETTER TO BE RENDERED BY THE CONSULTANT TO THE PRINCIPAL, OR SUCH ADDITIONAL SERVICES AS MAY BE AGREED UPON BETWEEN THE PARTIES IN WRITING FROM TIME TO TIME BY WAY OF AN ANNEXURE TO THE LETTER. – “STANDARDS OF PRACTICE” MEANS, WITH REFERENCE TO THE SERVICES AND THE SUPPLY THEREOF, THE STANDARDS OF PRACTICE THAT WOULD USUALLY BE APPLIED BY PROFESSIONAL CONSULTANTS OF SUCH KIND OF SERVICES IN SIMILAR CIRCUMSTANCES AND AT THE RELEVANT TIME. – “SUBCONTRACTOR” MEANS ANY PARTY, OTHER THAN THE CONSULTANT OR ITS EMPLOYEES, ENGAGED BY THE CONSULTANT, THROUGH A SUB-CONTRACT, TO PERFORM THE SERVICES, OR ANY PART THEREOF, FOR AND ON BEHALF OF THE CONSULTANT. 1.2 “VAT” MEANS VALUE ADDED TAX CHARGEABLE UNDER APPLICABLE TAX LEGISLATION OR ANY SIMILAR REPLACEMENT, ADDITIONAL OR ALTERNATIVE TAX IMPOSED IN THE JURISDICTION. CAPITALIZED WORDS USED IN THESE TERMS AND NOT SPECIFICALLY DEFINED IN THE LETTER HAVE THE SAME MEANING AS PROVIDED IN THESE TERMS.
1. LETTER-AGREEMENT AND TERMS
2.1 THE AGREEMENT BETWEEN THE PRINCIPAL AND THE CONSULTANT SHALL BE EFFECTIVE AND SHALL COMMENCE UPON (A) RECEIPT OF PRINCIPAL’S UNQUALIFIED ACCEPTANCE OF THE LETTER IN WRITING; (B) RECEIPT OF PRINCIPAL’S INSTRUCTION TO COMMENCE WITH THE SERVICES; OR (C) PAYMENT OF CONSULTANT’S PREMIER INVOICE OR ANY ADVANCE PAYMENT, WHICHEVER IS EARLIER (THE EFFECTIVE DATE). THE LETTER, AS WELL AS THE ACCEPTANCE OR ACKNOWLEDGMENT THEREOF, MAY BE TRANSMITTED ELECTRONICALLY AND MUST BE SIGNED (ELECTRONICALLY OR IN WRITING) BY A DULY AUTHORIZED REPRESENTATIVE OF BOTH PARTIES TO BE ENFORCEABLE. NEITHER PARTY WILL CONTEST THE ENFORCEABILITY OF THE AGREEMENT TRANSMITTED AND SIGNED ELECTRONICALLY. THESE TERMS FORM AN INTEGRAL PART OF THE LETTER, AND THE RESULTING AGREEMENT (IF ANY). THE AGREEMENT IS NOT CONCLUDED AND THE ACCEPTANCE OF THE LETTER SHALL NOT BIND THE CONSULTANT IF THE PRINCIPAL’S ACCEPTANCE OF THE LETTER, INCLUDING THESE TERMS, IN ANY RESPECT, DIFFERS FROM THE LETTER ISSUED TO THE PRINCIPAL BY THE CONSULTANT. UNLESS PROVIDED OTHERWISE IN THE LETTER, THE LETTER IS VALID FOR THREE (3) MONTHS FOLLOWING THE DATE OF ISSUANCE. EVEN THOUGH THE LETTER POINTS OUT A PERIOD FOR ITS ACCEPTANCE THE LETTER MAY BE REVOKED BY THE CONSULTANT, AT ANY TIME, AS LONG AS THE LETTER HAS NOT BEEN ACCEPTED BY THE PRINCIPAL. THE LETTER IS BASED ON THE INFORMATION PROVIDED BY THE PRINCIPAL TO THE CONSULTANT AT THE TIME THE LETTER WAS DRAFTED. 2.6 THE APPLICABILITY OF THE PURCHASE AND OTHER TERMS AND CONDITIONS OF THE PRINCIPAL ARE EXPRESSLY REFUTED BY THE CONSULTANT AND THE (PURCHASE) TERMS AND CONDITIONS OF THE PRINCIPAL DO NOT APPLY TO THE AGREEMENT (NOT EVEN ADDITIONALLY), UNLESS SUCH TERMS AND CONDITIONS HAVE BEEN EXPLICITLY ACCEPTED BY THE CONSULTANT IN WRITING, IN WHICH CASE A REFERENCE TO SUCH TERMS AND CONDITIONS WILL BE INCORPORATED IN THE MAIN BODY OF THE LETTER BY THE CONSULTANT. UNLESS PROVIDED OTHERWISE IN THE LETTER, THESE TERMS SHALL PREVAIL SHOULD THERE BE ANY CONFLICT OR INCONSISTENCY BETWEEN THE PROVISIONS OF THE TERMS AND CONDITIONS OF THE PRINCIPAL AND THESE TERMS. 2.7 THESE TERMS MAY NOT BE MODIFIED OR ELIMINATED, UNLESS SUCH MODIFIED OR ELIMINATED PROVISIONS HAVE BEEN EXPLICITLY ACCEPTED BY THE CONSULTANT IN WRITING SIGNED BY A DULY AUTHORIZED REPRESENTATIVE OF BOTH PARTIES, IN WHICH CASE SPECIFIC PROVISIONS TO THAT EFFECT WILL BE INCORPORATED IN THE MAIN BODY OF THE LETTER BY THE CONSULTANT, REFERRING TO THE PROVISIONS OF THESE TERMS TO BE MODIFIED OR ELIMINATED AND SHALL THEN APPLY EXCLUSIVELY TO THE AGREEMENT FOR WHICH THEY WERE AGREED.
RELATIONSHIP OF THE PARTIES
EACH PARTY SHALL BE EXCUSED FROM PERFORMANCE UNDER THE AGREEMENT TO THE EXTENT THAT SUCH PARTY IS PREVENTED FROM PERFORMING, IN WHOLE OR IN PART, BY DELAYS CAUSED BY AN ACT OF GOD, WAR, CIVIL DISTURBANCE, LABOR DISPUTE, OR OTHER CAUSE BEYOND ITS REASONABLE CONTROL. THE NON-PERFORMING PARTY SHALL PROMPTLY GIVE NOTICE OF ITS NON-PERFORMANCE TO THE OTHER PARTY. THE NON-PERFORMING PARTY SHALL MAKE ALL COMMERCIALLY REASONABLE EFFORTS TO REMOVE SUCH CAUSE OF NONPERFORMANCE. ALL OTHER OBLIGATIONS NOT AFFECTED BY SUCH CAUSE OF NONPERFORMANCE SHALL BE IN FULL FORCE AND EFFECT DURING THE PERIOD OF TIME THAT THE AFFECTED OBLIGATION IS SUSPENDED DURING THE CONTINUANCE OF SUCH CAUSE OF NON PERFORMANCE. SHADOWBOX LEGAL: GENERAL TERMS AND CONDITIONS (SBG CONSULTANCY-MANAGEMENT SERVICES) THESE GENERAL TERMS AND CONDITIONS (“TERMS”) APPLY TO ALL CONSULTANCY SERVICES THAT THE CONSULTANT WILL PROVIDE FOR OR ON BEHALF OF THE PRINCIPAL.
RELATIONSHIP OF THE PARTIES
3.1 THE PARTIES ARE INDEPENDENT LEGAL SUBJECTS, AND NO EMPLOYEE OF EITHER PARTY SHALL BE CONSIDERED TO BE AN EMPLOYEE OF THE OTHER PARTY. THE PRINCIPAL AND THE CONSULTANT SPECIFICALLY AND EXPRESSLY DISCLAIM ANY INTENTION TO CREATE A PARTNERSHIP, CONSORTIUM OR JOINT VENTURE. 3.2 SAVE TO THE EXTENT OTHERWISE PROVIDED IN THE LETTER, NEITHER PARTY SHALL ACT AS THE AGENT OF THE OTHER PARTY AND NEITHER PARTY SHALL HAVE THE AUTHORITY (OR REPRESENT THAT IT HAS THE AUTHORITY) TO: (A) BIND THE OTHER PARTY; OR (B) INCUR ANY LIABILITY ON BEHALF OF THE OTHER PARTY. 3.3 NOTHING IN THESE TERMS SHALL, EXCEPT AS OTHERWISE AGREED IN THE AGREEMENT, BE CONSTRUED AS CREATING AN EXCLUSIVE RELATIONSHIP BETWEEN THE PRINCIPAL AND THE CONSULTANT, OR AS PRECLUDING OR LIMITING, IN ANY WAY, THE RIGHT OF THE CONSULTANT FROM RENDERING SERVICES OF ANY KIND OR NATURE WHATSOEVER TO ANY THIRD PARTY AS THE CONSULTANT IN ITS SOLE DISCRETION DEEMS APPROPRIATE. 3.4 A PERSON WHO IS NOT A PARTY TO THE AGREEMENT SHALL NOT HAVE ANY RIGHTS OR OBLIGATIONS UNDER THE AGREEMENT, OR TO ENFORCE ANY OF ITS PROVISIONS. 3.5 THE RELATIONSHIP BETWEEN THE PARTIES SHALL BE ONE OF GOOD FAITH AND EACH PARTY THEREFORE UNDERTAKES TO OBSERVE GOOD FAITH TOWARDS THE OTHER PARTY, AND TO ACT REASONABLY WITH RESPECT TO MATTERS THAT RELATE TO THE AGREEMENT. 3.6 THE PARTIES UNDERTAKE, EITHER DURING THE TERM OF THE AGREEMENT (HEREINAFTER DEFINED) OR FOR A PERIOD OF TWELVE (12) MONTHS AFTER ITS TERMINATION OR EXPIRATION, NOT TO (DIRECTLY OR INDIRECTLY) SOLICIT ANY OF THE OTHER PARTY’S EMPLOYEES (OTHER THAN THROUGH A GENERAL PUBLIC ADVERTISEMENT) WHO IS OR HAS BEEN INVOLVED IN THE PERFORMANCE OF THE AGREEMENT, WITHOUT THE PRIOR WRITTEN CONSENT OF THE OTHER PARTY. BREACH OF THIS PROVISION WILL RENDER THE BREACHING PARTY LIABLE TO PAY, AS A GENUINE AND AGREED PRE-ESTIMATE OF DAMAGE, AN AMOUNT EQUAL TO SIX (6) MONTHS’ TOTAL COST TO THE AFFECTED PARTY’S REMUNERATION OF THE EMPLOYEE SO RECRUITED.
1.
EXECUTION OF THE AGREEMENT
4.1 THE CONSULTANT SHALL CARRY OUT THE SERVICES AND PROVIDE THE DELIVERABLES AS SPECIFIED IN THE AGREEMENT. 4.2 THE CONSULTANT WILL CARRYOUT THE SERVICES WITH DUE PROFESSIONAL SKILL AND CARE, IN ACCORDANCE WITH THE AGREEMENT (INCLUDING, IF ANY, THE SERVICES LEVELS SET FORTH THE LETTER), AND OTHERWISE ALL STANDARDS OF PRACTICE. 4.3 IN THE PERFORMANCE OF THE SERVICES THE CONSULTANT WILL APPLY PROFESSIONAL PERSONNEL, WHO ARE, IN THE REASONABLE OPINION OF THE CONSULTANT, PROPERLY QUALIFIED, TRAINED, COMPETENT, SKILLED AND EXPERIENCED. 4.4 THE CONSULTANT HAS THE RIGHT TO DETERMINE THE MEANS, MANNER AND METHODS BY WHICH THE SERVICES WILL BE PERFORMED, WITH DUE REGARD AND OBSERVANCE OF (A) THE TERMS AND CONDITIONS CONTAINED IN THE AGREEMENT; AND (B) WHERE POSSIBLE, THE NEEDS AND WISHES OF THE PRINCIPAL. 4.5 THE CONSULTANT SHALL USE REASONABLE EFFORTS TO CARRY OUT THE SERVICES AND PROVIDE THE DELIVERABLES ON SUCH MILESTONES AND DATES AS SET FORTH IN THE LETTER; HOWEVER THESE MILESTONES AND DATES SHALL NOT BE DEEMED TO BE FIXED DEADLINES UNLESS AGREED OTHERWISE IN THE LETTER. IN CASE OF SUSPENSION OF THE SERVICES OR A FORCE MAJEURE EVENT, ALL MILESTONES AND DATES SHALL BE AUTOMATICALLY EXTENDED BY A PERIOD OF TIME EQUAL TO THE PERIOD OF SUSPENSION OR FORCE MAJEURE EVENT. 4.6 THE CONSULTANT SHALL, WHERE REQUIRED, COOPERATE WITH THIRD PARTIES APPOINTED BY THE PRINCIPAL IN RELATION TO THE SERVICES, PROVIDED THAT THE CONSULTANT SHALL OWE NO DUTY TO SUCH THIRD PARTIES IN TERMS OF THE AGREEMENT. 4.7 EITHER PARTY MAY NOMINATE A MANAGER OR EQUIVALENT SENIOR PERSON RESPONSIBLE FOR THE EXECUTION OR OVERSIGHT OF THE EXECUTION OF THE AGREEMENT IN THE LETTER, WHO WILL: (A) BE AVAILABLE TO CONSULT WITH EACH OTHER, ON REASONABLE NOTICE, ON MATTERS RELATING TO THE PERFORMANCE OF THE AGREEMENT; AND (B) ACCEPT ALL NOTICES AND CORRESPONDENCE RELATING TO THE PERFORMANCE OF THE AGREEMENT. 4.8 THE PRINCIPAL AGREES THAT CONSULTANT’S EMPLOYEES MAY BE UNAVAILABLE FOR SHORT PERIODS OF TIME FOR REASONS, INCLUDING BUT NOT LIMITED TO, ANNUAL LEAVE, INTERNAL MEETINGS AND TRAINING, AND THE CONSULTANT SHALL FOR THESE SHORT PERIODS TAKE REASONABLE STEPS TO MINIMIZE ANY DISRUPTION TO THE SERVICES. THE CONSULTANT MAY, SUBJECT TO PRIOR NOTIFICATION TO THE PRINCIPAL, REPLACE EMPLOYEES WITH OTHER EMPLOYEES OF EQUIVALENT QUALIFICATIONS, COMPETENCES, SKILLS AND EXPERIENCE. 4.9 THE SERVICES PROVIDED BY THE CONSULTANT AND ANY DELIVERABLES PREPARED BY THE CONSULTANT SHALL BE ONLY FOR THE PRINCIPAL’S USE AND BENEFIT. 4.10 THE PRINCIPAL AGREES THAT RELIANCE ON THE DELIVERABLES OR ANY OTHER OUTPUT OF THE SERVICES IS LIMITED TO THE FACTS AND REPRESENTATIONS SET OUT THEREIN, WHICH REPRESENT CONSULTANT’S REVIEW AND/ OR ANALYSIS OF FACTS, INFORMATION, DOCUMENTS AND/ OR OTHER MATERIALS IN EXISTENCE AT THE TIME OF THE PERFORMANCE OF THE SERVICES ONLY. 4.11 ALL WARRANTIES, CONDITIONS AND OTHER TERMS IMPLIED BY STATE OR COMMON LAW (INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR THE PURPOSE) ARE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW EXCLUDED FROM THE AGREEMENT. 4.12 NO PERFORMANCE, DELIVERABLES, INFORMATION OR ADVICE PROVIDED BY THE CONSULTANT OR ITS EMPLOYEES OR SUBCONTRACTORS WILL CREATE A WARRANTY OR OTHERWISE INCREASE THE SCOPE OF ANY WARRANTY PROVIDED IN TERMS OF THE AGREEMENT.
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SUB-CONTRACTING
5.1 THE CONSULTANT WILL NOT SUB CONTRACT ANY PART OF THE SERVICES WITHOUT THE PRIOR WRITTEN CONSENT OF THE PRINCIPAL, WHICH CONSENT SHALL NOT BE UNREASONABLY WITHHELD OR DELAYED; PROVIDED THAT THE CONSULTANT MAY, WITHOUT CONSENT, SUBCONTRACT THE WHOLE OR ANY PART OF THE SERVICES TO ITS AFFILIATES. 5.2 THE PRINCIPAL ACKNOWLEDGES THAT THE CONSULTANT IS SOLELY LIABLE FOR ITS APPROVED SUBCONTRACTORS (INCLUDING THE EMPLOYEES OF THE SUBCONTRACTOR) TO THE PRINCIPAL AND THE CONSULTANT WILL BE RESPONSIBLE FOR ALL WORK, AND ACTS, OMISSIONS AND DEFAULTS OF ANY SUBCONTRACTOR AS IF THEY WERE THE WORK, ACTS, OMISSIONS OR DEFAULTS OF THE CONSULTANT. THE PRINCIPAL WILL NOT BRING ANY CLAIM OR PROCEEDING OF ANY NATURE IN CONNECTION WITH THIS AGREEMENT AGAINST ANY SUBCONTRACTOR. 5.3 THE PRINCIPAL ACKNOWLEDGES THAT THE CONSULTANT IS THE PRIME SERVICE PROVIDER TO THE PRINCIPAL AND SHALL BE THE PRIME INTERFACE WITH THE PRINCIPAL IN RESPECT OF THE AGREEMENT AND THE SERVICES CONTEMPLATED THEREBY. SAVE FOR COMMUNICATION REQUIRED FOR PURPOSES OF THE DAY TO DAY RENDERING OF THE SERVICES, THE PRINCIPAL SHALL THEREFORE ONLY COMMUNICATE WITH THE CONSULTANT IN RELATION TO ALL RIGHTS, OBLIGATIONS AND OTHER MATERIAL MATTERS TO THIS AGREEMENT.
1.
CO-OPERATION OF THE PRINCIPAL
6.1 THE PRINCIPAL UNDERTAKES TO PROVIDE THE CONSULTANT, AT ITS OWN EXPENSE, WITH ALL INFORMATION WHICH THE CONSULTANT REQUIRES FOR THE TIMELY AND PROPER EXECUTION OF THE SERVICES, AND THE PRINCIPAL REPRESENTS AND WARRANTS THAT ANY INFORMATION SUPPLIED BY THE PRINCIPAL TO THE CONSULTANT IS TRUE, ACCURATE, REPRESENTATIVE, COMPLETE AND IS NOT MISLEADING IN ANY RESPECT. THE PRINCIPAL FURTHER ACKNOWLEDGES THAT THE CONSULTANT WILL RELY ON SUCH INFORMATION PROVIDED BY THE PRINCIPAL (WITHOUT ANY DUTY TO CONFIRM OR VERIFY THE ACCURACY THEREOF) IN ORDER TO PROVIDE THE SERVICES AND THE CONSULTANT SHALL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INFORMATION PROVIDED NOT BEING TRUE, ACCURATE, COMPLETE OR BEING MISLEADING. 6.2 THE PRINCIPAL SHALL PROVIDE THE CONSULTANT WITH FULL, PROMPT AND REASONABLE ACCESS TO ITS PERSONNEL, EXTERNAL ADVISORS, SUPPLIERS, CONTRACTORS AND OTHER RELATIONS, PREMISES AND FACILITIES WHICH THE CONSULTANT REASONABLY BELIEVES TO BE REQUIRED FOR THE EXECUTION OF THE SERVICES. IF SPECIFIC PERSONNEL ARE REQUIRED, THIS WILL BE EXPRESSLY STATED IN THE LETTER. 6.3 UPON THE REASONABLE REQUEST OF THE CONSULTANT, THE PRINCIPAL WILL MAKE CERTAIN MATERIALS, EQUIPMENT AND/OR FACILITIES AVAILABLE TO THE CONSULTANT AS MAY BE REQUIRED FOR THE EXECUTION OF THE SERVICES. 6.4 THE PRINCIPAL SHALL OBTAIN ALL AND ANY APPROVALS, LICENSES AND SECURITY CLEARANCES OF THE CONSULTANT BY THE PRINCIPAL’S CLIENTS OR OTHERS CONTROLLING THIRD-PARTY SITES WHERE CONSULTANT SHALL RENDER THE SERVICES. 6.5 THE PRINCIPAL SHALL UNDERTAKE TO KEEP THE CONSULTANT APPRISED OF ANY EVENTS, DEVELOPMENTS OR CHANGES IN CIRCUMSTANCE RELATING TO THE PROVISION OF THE SERVICES. 6.6 THE PRINCIPAL SHALL APPLY ITS INDEPENDENT BUSINESS JUDGEMENT TO EVALUATE THE SERVICES AND ANY DELIVERABLES OR OUTPUT ARISING FROM THE SERVICES AND ANY DELIVERABLES. THE PRINCIPAL SHALL EVALUATE THE SERVICES, DELIVERABLES AND ANY SUCH OUTPUT IN THE CONTEXT OF ITS BUSINESS AND MAKE AN INDEPENDENT DECISION ON WHETHER IT WISHES TO IMPLEMENT OR ACT ON THE SERVICES, DELIVERABLES OR OUTPUT ARISING FROM THE SERVICES AND ANY DELIVERABLES. 6.7 THE PRINCIPAL IS RESPONSIBLE FOR ACTING AS IT SEES FIT ON THE BASIS OF THE USE OF THE DELIVERABLES OR ANY OTHER USE DERIVING FROM THE SERVICES. THE CONSULTANT, AND ITS EMPLOYEES AND SUBCONTRACTORS SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE TO THE PRINCIPAL OR ANY THIRD PARTY FOR ANY ACTIONS TAKEN OR NOT TAKEN ON THE BASIS OF THE USE OF THE DELIVERABLES OR USE DERIVING FROM THE SERVICES EXCEPT WHERE IT CAN BE PROVEN THAT SUCH LOSS OR DAMAGE HAS BEEN CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE CONSULTANT. 6.8 THE PRINCIPAL AGREES THAT IT WILL NOT USE THE DELIVERABLES ISSUED BY THE CONSULTANT PURSUANT TO THE AGREEMENT IN A MISLEADING MANNER AND THAT THE PRINCIPAL SHALL NOT DISTRIBUTE OR PUBLISH THE CONTENT OF ANY DELIVERABLES OR ANY EXTRACTS, EXCERPTS OR PARTS THEREOF, WITHOUT THE PRIOR WRITTEN CONSENT OF THE CONSULTANT. 6.9 THE PRINCIPAL UNDERTAKES TO COMPLY WITH ALL APPLICABLE LEGISLATION AND REGULATIONS IN THE FIELD OF PROTECTION OF PERSONAL DATA RELATIVE TO THE PROCESSING OF PERSONAL DATA BY THE PRINCIPAL IN CONNECTION WITH THE AGREEMENT. IN RESPECT OF ANY PERSONAL DATA ORIGINATING FROM THIRD PARTIES OR PROVIDED BY ANY THIRD PARTY ON THE PRINCIPAL’S INSTRUCTIONS THE PRINCIPAL DECLARES THAT IT HAS PROPER AUTHORITY AND CONSENT FROM THE RELEVANT PERSON TO DISCLOSE SUCH PERSONAL INFORMATION; 6.10 THE CONSULTANT SHALL NEITHER BE IN BREACH OF THIS AGREEMENT NOR LIABLE TO THE PRINCIPAL FOR ANY BREACH OF THIS AGREEMENT IF SUCH BREACH IS A RESULT OF THE PRINCIPAL’S FAILURE (OR ANY OF ITS DIRECTORS, AGENTS OR EMPLOYEES) TO COMPLY WITH ITS OBLIGATIONS SET OUT IN THIS ARTICLE 6.11 THE PRINCIPAL FURTHERMORE ACKNOWLEDGES THAT THE IMPACT OF ANY FAILURE BY THE PRINCIPAL TO PERFORM ITS OBLIGATIONS SET OUT HEREIN ON THE PROVISIONS OF THE SERVICES BY THE CONSULTANT WILL NOT AFFECT THE PRINCIPAL’S OBLIGATIONS UNDER THE AGREEMENT FOR PAYMENT OF THE FEES PURSUANT TO ARTICLE 8.
1.
LEGAL AND COMPLIANCE
7.1 EACH PARTY SHALL COMPLY WITH ALL APPLICABLE LAWS, STATUTES AND REGULATIONS FROM TIME TO TIME IN FORCE HAVING JURISDICTION OVER THE PERFORMANCE OF ITS OBLIGATIONS UNDER THIS AGREEMENT. 7.2 EACH PARTY SHALL COMPLY WITH THE MANDATORY POLICIES. 7.3 THE NON-BREACHING PARTY MAY TERMINATE THE AGREEMENT WITH IMMEDIATE EFFECT BY GIVING WRITTEN NOTICE TO THE PARTY IN BREACH IF SUCH PARTY COMMITS A BREACH OF ARTICLE 7.2.
PAYMENT AND INVOICING
8.1 THE PRINCIPAL SHALL IN CONSIDERATION FOR THE SERVICES PAY TO THE CONSULTANT THE FEES, THE EXPENSES AND ANY VAT. 8.2 UNLESS OTHERWISE STATED IN THE LETTER, THE AGREEMENT SHALL NOT BE CONSTRUED AS TO PERFORM THE AGREEMENT AT A FIXED PRICE. 8.3 THE CONSULTANT SHALL, FROM TIME TO TIME ,INVOICE THE PRINCIPAL FOR THE FEES AND EXPENSES. THE PRINCIPAL SHALL PAY EACH INVOICE WITHIN THIRTY (30) DAYS OF THE RECEIPT OF INVOICE PERTAINING TO THE AGREEMENT. 8.4 THE PARTIES AGREE THAT PAYMENTS MAY BE EFFECTED BY ELECTRONIC TRANSFER OF FUNDS OR AS OTHERWISE AGREED IN THE LETTER. THE CONSULTANT’S BANKING DETAILS ARE SET OUT ON ITS INVOICES. ELECTRONIC INVOICING AND PDF INVOICES ARE ACCEPTABLE. 8.5 THE PRINCIPAL WILL BE RESPONSIBLE FOR ARRANGING FOREIGN EXCHANGE CLEARANCE AND FOR MEETING ALL RELATED COSTS IN THE JURISDICTION TO WHICH THE FUNDS ARE BEING REMITTED. 8.6 SHOULD A DISPUTE ARISE RELATING TO ANY INVOICE, THE PRINCIPAL MUST NOTIFY THE CONSULTANT OF THE DISPUTED AMOUNT AND THE REASONS FOR THE DISPUTE IN WRITING WITHIN THIRTY (30) DAYS OF THE DATE OF THE DISPUTED INVOICE, FAILING WHICH THE PRINCIPAL SHALL BE DEEMED TO HAVE ACCEPTED THE INVOICE AS DUE AND PAYABLE. IN THE EVENT THE PRINCIPAL WITHHOLDS PAYMENT OF A DISPUTED INVOICE, THE CONSULTANT SHALL BE ENTITLED TO SUSPEND THE RENDERING OF THE SERVICES UNTIL THE DISPUTE IS RESOLVED. NOTWITHSTANDING ANY OF THE FOREGOING, THE PRINCIPAL SHALL BE OBLIGED TO PAY ANY UNDISPUTED PART OF THE INVOICE. 8.7 IF ANY INVOICE IS NOT PAID ON THE DUE DATE, THE CONSULTANT SHALL HAVE THE RIGHT TO CHARGE, AND THE PRINCIPAL SHALL PAY INTEREST ON THE AMOUNT, CALCULATED FROM THE DUE DATE OF THE INVOICE TO THE DATE OF RECEIPT OF THE AMOUNT IN FULL AT A RATE OF TWO PER CENT (2%) PER MONTH. 8.8 IN THE EVENT THE PRINCIPAL FAILS TO PAY ANY INVOICE WHEN DUE THE CONSULTANT MAY, WITHOUT HAVING TO OBTAIN A COURT ORDER AND WITHOUT HAVING TO PAY ANY DAMAGES OR PENALTIES: (A) SUSPEND THE PERFORMANCE OF ITS OBLIGATIONS UNDER THE AGREEMENT AND/OR THE PERFORMANCE OF THE SERVICES; OR (B) TERMINATE THE AGREEMENT BY GIVING FIVE (5) DAYS’ WRITTEN NOTICE. AS A CONSEQUENCE OF TERMINATION ALL FEES AND EXPENSES THAT THE PRINCIPAL OWES UNDER THE AGREEMENT SHALL BECOME IMMEDIATELY DUE AND PAYABLE. 8.9 THE FEES OF THE CONSULTANT MAY INCREASE ON AN ANNUAL BASIS, IN ACCORDANCE WITH THE APPROPRIATE (IN WHICH DECISION THE CONSULTANT ACTING REASONABLY SHALL BE THE SOLE JUDGE) CONSUMER PRICE INDEX IN THE JURISDICTION.
CONFIDENTIALITY
9.1 WHERE A PARTY (THE RECEIVING PARTY) OBTAINS CONFIDENTIAL INFORMATION OF THE OTHER PARTY (THE DISCLOSING PARTY) IN CONNECTION WITH THE AGREEMENT IT SHALL: (A) KEEP THAT CONFIDENTIAL INFORMATION CONFIDENTIAL, BY APPLYING THE SAME LEVEL OF CARE THAT IS USES FOR ITS OWN CONFIDENTIAL INFORMATION AND IN NO CASE SHALL THE DEGREE OF CARE BE LESS THAN A REASONABLE DEGREE OF CARE; (B) USE THAT CONFIDENTIAL INFORMATION ONLY FOR THE PURPOSES OF PERFORMING ITS OBLIGATIONS UNDER THIS AGREEMENT; AND (C) NOT DISCLOSE OR DIVULGE THAT CONFIDENTIAL INFORMATION TO ANY THIRD PARTY WITHOUT THE PRIOR WRITTEN CONSENT OF THE DISCLOSING PARTY. 9.2 IF THE RECEIVING PARTY BECOMES AWARE OF ANY UNAUTHORIZED DISCLOSURE OF CONFIDENTIAL INFORMATION, IT SHALL IMMEDIATELY INFORM THE DISCLOSING PARTY AND THE PARTIES SHALL SEEK TO FIND A REMEDY TO THE SITUATION AND PREVENT ITS FURTHER UNAUTHORIZED USE. 9.3 THE RECEIVING PARTY MAY DISCLOSE THE DISCLOSING PARTY’S CONFIDENTIAL INFORMATION ON A “NEED TO KNOW” BASIS TO: (A) ANY LEGAL ADVISERS AND STATUTORY AUDITORS THAT IT HAS ENGAGED FOR ITSELF; (B) ANY REGULATOR HAVING REGULATORY OR SUPERVISORY AUTHORITY OVER ITS BUSINESS; (C) ANY DIRECTOR, OFFICER OR EMPLOYEE OF THE RECEIVING PARTY; (D) ITS AFFILIATES AND SUBCONTRACTORS AND THEIR DIRECTORS, OFFICERS OR EMPLOYEES, WHERE THE RECEIVING PARTY IS THE CONSULTANT (THE AUTHORIZED RECIPIENTS), PROVIDED THAT THE RECEIVING PARTY SHALL IN EACH CASE FIRST ADVISE THE AUTHORIZED RECIPIENTS OF THE CONDITIONS SET OUT HEREIN AND SHALL ENSURE THAT THE AUTHORIZED RECIPIENTS ARE BOUND BY CONDITIONS OF CONFIDENCE IN RESPECT OF THE CONFIDENTIAL INFORMATION NO LESS ONEROUS THAN THOSE SET OUT IN THESE TERMS. THE RECEIVING PARTY WILL BE FULLY AND SOLELY RESPONSIBLE TO DISCLOSING PARTY FOR ITS AUTHORIZED RECIPIENTS AND AUTHORIZED RECIPIENTS’ COMPLIANCE WITH THE TERMS. 9.4 THE OBLIGATIONS OF CONFIDENTIALITY REFERRED TO INT HIS ARTICLE WILL NOT APPLY TO ANY INFORMATION WHICH: (A) WAS KNOWN TO OR IN THE POSSESSION OF THE RECEIVING PARTY BEFORE SUCH INFORMATION WAS IMPARTED BY THE DISCLOSING PARTY; (B) IS LEGITIMATELY IN OR SUBSEQUENTLY COMES INTO THE PUBLIC DOMAIN OTHER THAN BY BREACH BY THE RECEIVING PARTY OF ITS OBLIGATIONS HEREUNDER OR UNDER ANY OTHER AGREEMENT ON CONFIDENTIALITY BETWEEN THE PARTIES OR ANY OF THEIR AFFILIATES; (C) IS RECEIVED IN GOOD FAITH BY THE RECEIVING PARTY FROM A THIRD PARTY WHO HAS NO OBLIGATIONS OF CONFIDENCE TO THE DISCLOSING PARTY IN RESPECT OF IT AND WHO IMPOSES NO OBLIGATIONS OF CONFIDENCE UPON THE RECEIVING PARTY; (D) IS APPROVED FOR RELEASE OR USE BY WRITTEN AUTHORIZATION OF THE DISCLOSING PARTY; (E) IS DEVELOPED BY THE RECEIVING PARTY INDEPENDENTLY WITHOUT REFERENCE TO THE CONFIDENTIAL INFORMATION, AS DEMONSTRATED BY RELEVANT EVIDENCE; OR (F) IS REQUIRED TO BE DISCLOSED BY LEGAL OR REGULATORY OBLIGATION. 9.5 ALL CONFIDENTIAL INFORMATION IS AND SHALL REMAIN THE PROPERTY OF THE DISCLOSING PARTY; PROVIDED HOWEVER THAT THE CONSULTANT SHALL HAVE AN IRREVOCABLE, PERPETUAL, NON EXCLUSIVE RIGHT TO USE AND REPRODUCE THE PRINCIPAL’S CONFIDENTIAL INFORMATION IN ANY DELIVERABLE, SUBJECT ALWAYS TO ARTICLE 9.1. 9.6 WITHIN THIRTY (30) DAYS FROM THE DATE OF TERMINATION OR EXPIRATION OF THE AGREEMENT, THE RECEIVING PARTY SHALL CEASE TO USE THE CONFIDENTIAL INFORMATION AND SHALL PROMPTLY RETURN OR DESTROY ALL CONFIDENTIAL INFORMATION, TOGETHER WITH ANY COPIES OR EXTRACTS THEREOF, AS SO REQUESTED BY THE DISCLOSING PARTY. 9.7 WITH RESPECT TO ARCHIVAL STORAGE, THE PRINCIPAL AGREES THAT THE CONSULTANT MAY RETAIN THE PRINCIPAL’S CONFIDENTIAL INFORMATION IN ITS ARCHIVE FOR THE PERIOD REQUIRED BY ITS QUALITY AND ASSURANCE PROCESSES OR BY APPLICABLE LAW.
GENERAL DISCLAIMER
DISCLAIMER: SELECT STATEMENTS AND REFERENCES DOCUMENTED ON OUR SITES, SOCIAL OUTLETS, AND/OR STATEMENTS REPRESENT AN OPINION, AND IS FOR INFORMATIONAL PURPOSES ONLY. OUR WRITTEN WORDS ARE NOT INTENDED TO (AND DOES NOT CONSTITUTE) INVESTMENT ADVICE, AND IS NOT AN OFFER TO BUY OR SELL OR A SOLICITATION OF AN OFFER TO BUY OR SELL ANY: CRYPTOCURRENCY, SECURITY, PRODUCT, SERVICE, AND/OR INVESTMENT. PLEASE SEEK A DULY LICENSED PROFESSIONAL FOR INVESTMENT ADVICE. THE INFORMATION PROVIDED HERE OR IN ANY COMMUNICATION CONTAINING A LINK TO OUR SITES, IS NOT INTENDED FOR DISTRIBUTION TO, OR USE BY, ANY PERSON OR ENTITY IN ANY JURISDICTION OR COUNTRY WHERE SUCH DISTRIBUTION OR USE WOULD BE CONTRARY TO LAW OR REGULATION OR WHICH WOULD SUBJECT CORNERMAN, INC. AND/OR ITS AFFILIATES INCLUDING THE SHADOWBOX GROUP (SBG). ITS TO ANY REGISTRATION REQUIREMENT WITHIN SUCH JURISDICTION OR COUNTRY. NEITHER THE INFORMATION, NOR ANY OPINION CONTAINED IN THIS SITE (AND/OR AFFILIATE DOMAINS) CONSTITUTES A SOLICITATION OR OFFER BY CORNERMAN, INC. AND/OR ITS AFFILIATES INCLUDING THE SHADOWBOX GROUP (SBG), TO BUY OR SELL ANY: CRYPTOCURRENCIES, SECURITIES, FUTURES, OPTIONS, AND/OR OTHER FINANCIAL INSTRUMENTS, AND/OR PROVIDE ANY INVESTMENT ADVICE OR SERVICE. PLEASE NOTE: NEITHER CORNERMAN, INC, NOR ITS AFFILIATE THE SHADOWBOX GROUP CONDUCTS INVESTMENT DILIGENCE ON TOKEN ISSUERS OR ANY TOKENS OR TOKEN-BASED SECURITIES LISTED IN ON THE ANY WEBSITE NOR PROVIDES LEGAL, INVESTMENT, BANKING, BROKER-DEALER OR TAX SERVICES. NOTHING IN THIS EMAIL SHALL CONSTITUTE OR BE CONSTRUED AS AN OFFERING OF SECURITIES OR AS INVESTMENT ADVICE, TAX ADVICE OR INVESTMENT RECOMMENDATIONS (I.E., RECOMMENDATIONS AS TO WHETHER TO ENTER OR NOT TO ENTER INTO ANY TRANSACTION INVOLVING ANY SPECIFIC INTEREST OR INTERESTS). PLEASE NOTE: DIGITAL ASSETS ARE SUBJECT TO A NUMBER OF RISKS, INCLUDING PRICE VOLATILITY. TRANSACTING IN DIGITAL ASSETS COULD RESULT IN SIGNIFICANT LOSSES AND MAY NOT BE SUITABLE FOR SOME CONSUMERS. DIGITAL ASSET MARKETS AND/OR EXCHANGES ARE NOT REGULATED WITH THE SAME CONTROLS OR CUSTOMER PROTECTIONS AVAILABLE WITH OTHER FORMS OF FINANCIAL PRODUCTS, AND ARE SUBJECT TO AN EVOLVING REGULATORY ENVIRONMENT. DIGITAL ASSETS DO NOT TYPICALLY HAVE LEGAL TENDER STATUS, AND ARE NOT SHIELDED BY INSURANCE COVERAGE PERTAINING TO DEPOSIT PROTECTION. PLEASE REMEMBER TO PLEASE CONDUCT YOUR OWN RESEARCH. ADDITIONAL INFORMATION IS CURRENTLY UPDATING, THANK YOU.
