The following terms and conditions (the or these “Terms”) apply to and govern the provision of Services (as defined below) by Micro Systemation AB and/or its affiliates (collectively, “MSAB”) to you (“Customer”). MSAB and Customer are each referred to herein as a “Party” and collectively, the “Parties”.
1.1 Scope of Services. MSAB shall perform the consulting and/or other professional services specified and more fully described in the quote, purchase order, statement of work or other agreement (collectively, the “SOW”) between the Parties for the performance of services (the “Services”) that expressly references these Terms. The Parties acknowledge and agree that (i) the SOW shall be deemed to incorporate the terms and conditions of these Terms, (ii) the terms and conditions of these Terms shall prevail over any inconsistent terms and conditions set forth in the SOW, unless the SOW explicitly provides that a specific provision therein supersedes a specific provision of these Terms, and (iii) the termination of these Terms shall terminate the SOW.
1.2 Delivery and Acceptance. The Services, including any Deliverables (as defined below), shall conform in all material respects to the specifications set forth in the SOW. Customer shall evaluate each Deliverable within the time period specified for such Deliverable in the SOW, or if no such period is specified in the SOW then within fifteen (15) days after delivery by MSAB (in either such case, the “Acceptance Period”), and notify MSAB in writing within the Acceptance Period of any manner in which the Services or Deliverables do not meet the specifications set forth in the SOW. MSAB shall promptly correct any such deficiency which it deems valid and for which it receives written notice within the Acceptance Period. If Customer does not provide such notice within the Acceptance Period, the Services, and any Deliverables, will be deemed accepted.
1.3 Manner of Performance. The Services and all Deliverables relating thereto shall be performed and delivered by MSAB in a timely, professional and workmanlike manner and in accordance with the implementation milestones and work phases (if any) agreed to by the Parties and reflected in the SOW, which may be amended by mutual written agreement of the Parties. MSAB shall have the right to (a) control and direct the means, manner, and method by which the Services are performed, and (b) perform the Services at any place or location and at such time as MSAB may determine reasonable. Unless otherwise agreed to by the Parties, MSAB shall (i) observe the working hours, working rules, and policies of Customer, of which MSAB shall have been advised, while working on Customer’s premises, and (ii) be responsible for all equipment, software, hardware and other materials required by MSAB to provide the Services.
1.4 Customer Obligations. MSAB’s ability to deliver the Services will depend on Customer’s reasonable and timely cooperation and the accuracy and completeness of any information from Customer needed for MSAB to deliver the Services. Customer agrees to ensure access to and the availability of all necessary Customer resources as required by MSAB to perform the Services. Further, Customer agrees to fulfill any of its obligations designated in the SOW (the “Customer Obligations”). MSAB shall be excused from any delay in performance of the Services caused by Customer’s failure to timely complete a Customer Obligation, any act, error, omission or delay by Customer (or by a third party supplier independently hired by Customer) or any other event, act or omission outside of MSAB’s control.
2. Proprietary Rights
2.1 Deliverables. The term “Deliverables” means any projects, reports, analyses, installation, documentation, scripts, code, customizations or other work results that MSAB may conceive, develop, or create in the course or as a result of performing the Services and as specifically set forth in the SOW. MSAB and its licensors, as applicable, shall own all right, title and interest, including without limitation intellectual property rights, in and to (a) all original components of the Deliverables created or developed by or on behalf of MSAB pursuant to its performance of the Services; (b) pre-existing works, inventions, technology, data, information and other material incorporated or used in connection with the Deliverables, or otherwise owned, used or possessed by MSAB prior to commencement of the Services; (c) all original works of authorship, inventions, discoveries, ideas, concepts, know-how, processes, techniques and other work product developed or created by or on behalf of MSAB pursuant to its performance of the Services; and (d) all derivatives, improvements, enhancements or extensions of the Deliverables (collectively, the “MSAB Materials”). Upon payment of all fees due for the Services, MSAB shall grant to Customer a limited, irrevocable (unless these Terms and/or the SOW are terminated by MSAB for cause pursuant to Section 8.2), non-exclusive, non-sublicensable, non-transferable, worldwide, royalty-free and paid-up license to use the Deliverables, together with any (if any) MSAB Materials that are incorporated into the Deliverables, solely for Customer’s internal business purposes, provided that Customer will have no right to use such MSAB Materials apart from the Deliverables or in any other manner; and further provided, however, that for any Deliverable for which there is a separate EULA that applies pursuant to Section 2.3, that EULA shall control over this Section 2.1. MSAB may include in the Deliverables appropriate proprietary rights legends which may not be removed by Customer. Nothing in these Terms shall convey to Customer any further rights, title, or interest in and to any MSAB Materials or any other MSAB interests, licenses, or rights not specifically granted herein, all of which are reserved by MSAB.
2.2 Customer Property. Customer hereby grants to MSAB a limited, revocable, non-exclusive, non-transferable, and non-sublicensable right and license to use specified Customer property, information, intellectual property rights, software, programming code (source and object), application programs interfaces (APIs), branding, designs, ideas, concepts, processes, methods, documentation, content or materials provided or made available by Customer and/or its suppliers (collectively, the “Customer Property”) in order to perform the Services. Nothing in these Terms shall convey to MSAB any further rights, title, or interest in and to any Customer Property or any other Customer interests, licenses, or rights not specifically granted herein. MSAB agrees that all Customer Property shall remain at all times the property of Customer and/or its suppliers, as applicable. Any use by MSAB of Customer’s trademarks, trade names, service marks, domain names, or logos shall only be with Customer’s prior written permission (which, for avoidance of doubt, may be provided by email or any of the other forms of communication permitted under Section 11.2 below) and in accordance with Customer’s then current trademark usage practices and any quality control measures that Customer has provided to MSAB in writing from time to time. The use of Customer’s trademarks by MSAB and all goodwill attendant thereto shall inure exclusively to the benefit of Customer.
2.3 License to MSAB Products. Customer accepts and agrees to be bound by the applicable license agreements to the MSAB products set forth at www.msab.com/terms or provided to Customer with such products (each a “EULA”) for all instances of such products included with the Deliverables under the SOW. Any acceptance of such EULAs shall be done on behalf of Customer and Customer shall be bound by, and at all times be responsible for maintaining compliance with the terms and conditions of, each such EULA.
3. Confidentiality. The term “Confidential Information” means any and all knowledge, information, materials or data of a Party, whether written or oral, and if written or on electronic media, however produced or reproduced, that is marked as “Confidential” and/or “Proprietary” or which is otherwise reasonably understood to be a valuable, special, or unique asset of a Party, the disclosure of which is or may be damaging or harmful to such Party or its business or interests. With respect to the other Party’s Confidential Information, each Party agrees that it will not, for a period of five (5) years after the date of last disclosure or for so long as such other Party considers information to be Confidential Information (as defined by these Terms), copy, reproduce, publish, sell, use, make any commercial use of, exploit, disclose, or divulge any Confidential Information of the other Party, directly or indirectly, to any other person or entity except: (i) to the extent reasonably necessary for the receiving Party to perform its obligations under these Terms and the SOW; (ii) at the written direction of the disclosing Party; (iii) to the extent necessary to comply with law or the valid order of a court or governmental agency of competent jurisdiction, in which event the receiving Party will promptly notify the disclosing Party (where permissible under law) and, at the disclosing Party’s request and expense, will reasonably assist the disclosing Party with seeking confidential treatment of such information; or (iv) to a Party’s accountants, financial advisors and/or attorneys as part of its normal reporting or review procedures or to enforce its rights pursuant to these Terms. With respect to the other Party’s Confidential Information, each Party further agrees that such Confidential Information will at all times remain the property of the disclosing Party (or its licensors, customers, or suppliers, as applicable) and agrees to take all necessary and appropriate procedures to avoid unauthorized disclosure of Confidential Information. Upon termination or expiration of these Terms and/or the SOW, each Party will destroy and return to the other Party all Confidential Information of such other Party in its possession or under its direct or indirect control and, upon request of the disclosing Party, will provide written confirmation of such destruction or return.
4. Books and Records. MSAB shall maintain reasonable books and records relating to the Services performed under these Terms while such Services are being performed, including, without limitation, records of the time (on an hourly basis) during which MSAB provides the Services and/or travels in connection with the Services in sufficient detail to enable Customer to determine accurately its payment obligations as described herein or in the SOW.
5.1 Fees. Customer shall pay to MSAB the specified amounts and fees set forth in the SOW (the “Fees”) when due. If the Services are to be performed on a time and materials basis, MSAB shall set forth its rate schedule in the SOW. All Fees payable to MSAB are non-refundable.
5.2 Invoices. Unless otherwise agreed in the SOW, payments for any amounts and Fees owed to MSAB shall be made pursuant to the schedule for payment as identified in the SOW. If no schedule is identified in the SOW, then MSAB shall be paid on a monthly basis for the Services rendered in the prior month upon receipt by Customer of an invoice specifying the Services performed, any specific Fees applicable to such Services and any reimbursable expenses incurred in connection with these Terms in accordance with Section 5.3 below. Payments owed under these Terms will be made in the applicable currency of the location where MSAB performs the Services and, unless otherwise indicated in the SOW, shall be provided to MSAB within thirty (30) days of the receipt of each invoice by Customer. Any amount not paid when due will bear interest until paid at a rate of interest equal to the lesser of one and a half percent (1.5%) per month or the maximum rate of interest allowed by applicable law. Customer shall also be responsible for reasonable administrative, legal, and court costs incurred by MSAB in collecting late payments and late payment charges or in enforcing any of the other provisions of these Terms. All invoices shall be deemed accepted and approved unless disputed by Customer in writing within five (5) business days of Customer’s receipt of the invoice.
5.3 Expenses. MSAB shall be entitled to reimbursement of all out-of-pocket expenses incurred while performing the Services. MSAB shall invoice Customer as set forth herein for expenses incurred as a result of performing Services in accordance with these Terms. Such expenses shall be limited to reasonable out-of-pocket expenses necessarily and actually incurred by MSAB in the performance of the Services.
5.4 Taxes. Customer shall pay, indemnify and hold harmless MSAB from any sales, use, excise, import or export, value-added, or similar tax or duty, and any other tax or duty not based on MSAB’s net income, that is levied upon the Services and/or Deliverables or due to any payment to be made to MSAB pursuant to these Terms, and any penalties, interest, collection costs and withholding costs associated with any of the foregoing items. Taxes, fees and additional costs required to be paid by Customer pursuant to this Section are in addition to, and may not be claimed as a reduction or offset against, any payments otherwise due to MSAB under these Terms. If Customer is required by law to withhold or deduct any withholding taxes from or in respect of any amount payable to MSAB hereunder, then (i) the amount payable hereunder shall be increased to such amount which, after making all required withholdings or deductions of withholding taxes therefrom, will equal the amount payable hereunder had no such withholding taxes or deductions been required; (ii) Customer shall make such withholdings or deductions; (iii) Customer shall pay the full amount withheld or deducted to the appropriate authorities according to applicable laws; and (iv) Customer shall promptly deliver to MSAB a receipt or similar documentation from the appropriate governmental authority evidencing payment of such withholding taxes.
6. Representations and Warranties
6.1 Mutual Representations and Warranties. Each Party represents and warrants that it has the right to enter into these Terms and to perform its obligations hereunder and that each Party has not made and/or will not make any contractual or other commitments which would conflict with the performance of its obligations hereunder.
6.2 Customer Representations and Warranties. Customer represents and warrants that it has all the necessary rights and permissions under applicable law to make use of the Services and Deliverables provided by MSAB and that its use of the Deliverables shall at all times be in accordance with applicable law. Further, Customer represents and warrants that any mobile device or information from any mobile device that is provided to MSAB in order for MSAB to perform the Services hereunder has been obtained and is being provided to MSAB in compliance with all applicable laws of any jurisdiction including, without limitation, the EU Data Protection Directive 95/46/EC and the Fourth Amendment of the United States Constitution, as applicable.
7.1 Indemnification by MSAB. MSAB will defend, indemnify and hold harmless Customer, its successors, and permitted assigns, from and against any and all damages, liabilities, judgments, costs and expenses, including reasonable legal fees (“Claims”) arising from any third party claim brought against such persons alleging that the use of the Deliverables as permitted hereunder infringes or misappropriates the intellectual property rights of such third party; provided that Customer (a) promptly gives MSAB written notice of the Claim; (b) gives MSAB sole control of the defense and settlement of the Claim; and (c) provides to MSAB all reasonable cooperation and assistance in connection with the defense and settlement of such Claim, including undertaking actions aimed at the mitigation of damages. In the event of a Claim, or if MSAB reasonably believes any Deliverable may infringe or misappropriate, MSAB may, in its discretion and at no cost to Customer, (i) modify the Deliverable so that it no longer infringes or misappropriates, (ii) obtain a license for Customer’s continued use of the Deliverable in accordance with these Terms, or (iii) immediately terminate the SOW and refund to Customer any prepaid fees for Services not performed as of the effective date of termination.
7.2 Indemnification by Customer. Customer will defend, indemnify, and hold harmless MSAB and all of its affiliates, employees, agents, directors, officers, shareholders, attorneys, successors, and assigns, from and against any and all third party claims, and all damages, injuries, liabilities, losses, costs, and expenses (including reasonable attorneys’ fees and litigation expenses) pertaining thereto, relating to or arising from (i) Customer’s use of the Services or Deliverables, (ii) any claim (whether or not filed) that Customer has violated applicable law or infringed upon a third party’s right of privacy or (iii) a breach by Customer of these Terms, the SOW or any other agreement between MSAB and Customer. Customer will not settle any such claim without MSAB’s prior express written consent. MSAB may participate in the defense or settlement of any such claim, at its own expense, with counsel of its choice.
8. Term and Termination
8.1 Term. Unless terminated earlier as set forth herein or as otherwise agreed to by the Parties, the term of these Terms will commence as of the effective date of the applicable SOW and continue in full force and effect thereafter unless and until the SOW is terminated or expires in accordance with its provisions or, if no termination or expiration is provided for in the SOW, upon completion of the Services.
8.2 Termination. MSAB may terminate these Terms or the SOW for convenience or for cause at any time immediately upon written notice to Customer. Customer may terminate these Terms and the SOW only in the event that MSAB breaches a material term of these Terms and has not cured such breach within thirty (30) days of written notice of the breach by Customer (or such other commercially reasonable period agreed upon by the Parties).
8.3 Effect of Termination. Within thirty (30) days of the termination of these Terms or the SOW, Customer shall pay MSAB for all amounts due for Services or Deliverables completed and delivered and expenses incurred by MSAB as of the termination date and pro-rated Fees for Services or Deliverables in process but not yet completed or delivered as of the termination date. Upon MSAB’s receipt of a termination notice from Customer, MSAB shall cease all work under the SOW unless such notice requests that MSAB continue or complete any work in progress. Upon termination of these Terms or the SOW, each Party shall promptly return to the other Party all property of the other Party in its possession or under its control. Upon receipt by MSAB of all outstanding payments due from Customer in accordance with this Section 8.3, MSAB shall deliver to Customer all Deliverables in MSAB’s possession, including any work in progress towards such Deliverables.
8.4 Survival. The Sections of these Terms on Proprietary Rights (Section 2), Confidentiality (Section 3), Indemnification (Section 7), Effect of Termination (Section 8.3), Survival (Section 8.4), Disclaimer and Limitation of Liability (Section 9), Compliance (Section 10) and Miscellaneous (Section 11), as well as Customer’s payment obligations for Fees due and expenses incurred, shall survive the termination or expiration of these Terms.
9. Disclaimer and Limitation of Liability.
9.1 OTHER THAN AS EXPRESSLY SET FORTH HEREIN OR IN THE SOW, THE SERVICES AND DELIVERABLES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, SYSTEM INTEGRATION, DATA ACCURACY AND QUIET ENJOYMENT, AS WELL AS ANY WARRANTY RELATED TO THE USE, OR THE RESULTS OF THE USE, OF THE SERVICES, DELIVERABLES OR WORK PRODUCT. MSAB SHALL NOT BE LIABLE TO CUSTOMER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS OR REVENUES, LOSS OF DATA, INTERRUPTION OF BUSINESS, LOSS OF BUSINESS OPPORTUNITY, LOSS OF EQUIPMENT OR SYSTEMS AND COST OF SUBSTITUTE GOODS OR SERVICES) ARISING OUT OF THESE TERMS OR THE SOW, WHETHER OR NOT FORESEEABLE AND EVEN IF MSAB HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE FOREGOING, THE TOTAL LIABILITY OF MSAB FOR ALL CLAIMS ARISING OUT OF THESE TERMS SHALL NOT EXCEED THE AMOUNTS ACTUALLY PAID BY CUSTOMER UNDER THE SOW FOR THE THREE (3) MONTHS PRIOR TO THE EVENT THAT GAVE RISE TO SUCH CLAIM.
10. Compliance. The Services and Deliverables provided hereunder are for Customer’s internal use and not for further commercialization. Customer shall comply with all applicable laws and regulations, including all applicable export control laws, regulations and embargoes, and is solely responsible for obtaining any required export or import authorizations. Each Party will comply with anti-bribery laws and regulations in the countries in which it conducts business under these Terms. Neither MSAB nor Customer will, directly or indirectly, offer or furnish to any foreign government official any bribe, kickback, gratuity, payment, compensation, service or anything else of value in connection with or related to any activity or payment under these Terms. MSAB may suspend its performance under these Terms at any time to the extent required by laws applicable to either Party.
11.1 Relationship of the Parties. Customer acknowledges that, pursuant to these Terms, MSAB has been retained to act solely as an independent contractor to Customer and will not be treated as an employee of Customer. MSAB will have no right, power or authority to create any contract or obligation, or incur any liability, on behalf of, or binding upon, Customer without Customer’s prior written consent. This Agreement is not intended, and will not be construed, to render Customer and MSAB as partners or joint venturers.
11.2 Notices. All notices required under these Terms shall be in writing and shall be considered given (i) when delivered personally, (ii) five (5) days after mailing, when sent certified mail, return receipt requested and postage prepaid, (iii) the business day after dispatch, when sent via a commercial overnight carrier, fees prepaid, (iv) upon delivery when sent by facsimile transmission confirmed by first class mail, or (v) upon receipt via email if receipt is expressly acknowledge by the receiving Party. All communications will be transmitted to the address of the respective Party set forth on the SOW. Either Party may change its address for notice by providing written notice to the other Party in accordance with this Section.
11.3 Governing Law. This Agreement will be governed by and construed under the laws of the Commonwealth of Virginia, USA, without regard to conflicts-of-laws principles that would require the application of any other law. The exclusive venue and forum for any dispute arising out of these Terms shall be in the state or federal courts located in the Commonwealth of Virginia, USA, and each Party expressly consents and agrees that it is subject to personal jurisdiction in such forum and that venue is proper in these courts in any such action or proceeding. The Party that prevails in any such dispute shall be entitled to an award of its reasonable attorney’s fees and expenses. The Parties expressly disclaim the applicability of, and waive any rights based upon, the Uniform Computer Information Transactions Act (as currently enacted or as may be codified or amended from time to time by any jurisdiction) and the United Nations Convention on Contracts for the International Sale of Goods.
11.4 Force Majeure. Neither Party shall be liable for any failure to perform, or any delay in performing its obligations (other than payment obligations) pursuant to these Terms that arises out of, is caused by or results from acts of God or other circumstances that are beyond its reasonable control. In the event that any such circumstances do arise, occur, or result, the affected Party shall promptly notify the other Party and shall use reasonable efforts to overcome them as promptly as practicable.
11.5 Severability; Waiver. If any provision of these Terms is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of these Terms will remain in full force and effect. Any provision of these Terms held invalid or unenforceable only in part or degree will remain in full force and effect to the extent not held invalid or unenforceable. Neither any failure nor any delay by any Party in exercising any right, power or privilege under these Terms or any of the documents referred to in these Terms will operate as a waiver of such right, power or privilege, and no single or partial exercise of any such right, power or privilege will preclude any other or further exercise of such right, power or privilege or the exercise of any other right, power or privilege.
11.6 Entire Agreement; Modification. These Terms, the SOW (including any addenda attached to the SOW) and any EULAs supersede all prior agreements, whether written or oral, between the Parties with respect to their subject matter and constitutes a complete and exclusive statement of the terms of the agreement between the Parties with respect to their subject matter. Neither Party may assign any of its rights or delegate any of its obligations under these Terms without the prior written consent of the other Party. Subject to the preceding sentence, these Terms will apply to, be binding in all respects upon, and inure to the benefit of the successors and permitted assigns of the Parties. These Terms and the SOW may not be amended, supplemented, or otherwise modified except by a written agreement executed by both Parties.
11.7 Government End Users. To the extent that the Deliverables include any MSAB Materials that were conceived, created or developed prior to or independent of these Terms and/or the SOW (collectively, “Independent Materials”), such Independent Materials are developed entirely at private expense and are therefore provided to the United States of America and its respective instrumentalities, agencies, or offices, regardless of form (collectively, the “U.S. Government”) with RESTRICTED RIGHTS and/or LIMITED RIGHTS (as applicable). Use, modification, reproduction, release, performance, display, or disclosure by the U.S. Government is subject to restrictions as set forth in subparagraph (b)(2) of the Technical Data – Commercial Items clause at D.F.A.R.S. 252.227-7015, subparagraphs (b), (c)(2) and (g) of the Rights in Data – General clause at 48 C.F.R. 52.227-14, or subparagraphs (b)(1) and (2) of the Commercial Computer Software License at 48 C.F.R. 52.227-19, as applicable. The Independent Materials are commercial in nature and were not first produced in the performance of any U.S. Government contract. Accordingly, the Independent Materials are “Commercial Items,” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §§227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. For any use of the Independent Materials that would require compliance by MSAB with a particular government requirement (whether of the U.S. Government or any other country, state, or other jurisdiction) not identified herein or that would affect MSAB’s rights, the applicable government entity, agency, or office must notify MSAB of said government requirement and obtain a waiver or exemption from such requirements for the benefit of MSAB before any government access to the Independent Materials.