Annex 1 - General Terms and Conditions Master Agreement No.
These General Terms and Conditions shall apply to the purchase and provision of Deliverables under the Master Agreement.
1. Definitions
The following terms shall have the meaning defined below. Additional terms may be defined in the context of particular provisions of the Agreement.
“Acceptance Certificate” shall mean the document signed by both Parties upon successful completion of
Acceptance Test.
“Acceptance Test” shall mean the tests agreed in the Agreement, performed to verify if the Deliverables meet the
requirements set forth in the Agreement.
”Actual Date of Delivery” shall mean the date when
(a) If the Deliverables are subject to an Acceptance Test: a successful Acceptance Test has been performed and an Acceptance Certificate has been signed by the Parties,
(b) If the Deliverables are not subject to an Acceptance Test: Buyer has performed its own control of the
Deliverables during the Control Period and, if the Deliverables do not meet the requirements, the date when Supplier has remedied the faults and demonstrated compliance of the Deliverables,
(c) the Control Period expires without Buyer having made justified complaint in respect of the Deliverables, or
(d) if (a), (b) or (c) do not apply, for example for Resource Services, the date when Supplier starts providing the Service(s).
“Affiliate” shall mean a legal entity directly or indirectly controlling a Party, under the same direct or indirect
ownership or control as a Party or directly or indirectly owned or controlled by a Party for so long as such ownership lasts. Ownership or control shall exist through direct or indirect ownership of more than fifty (50) per cent of the nominal value of the issued equity share capital or of more than fifty (50) per cent of the shares entitling the holders to vote for the election of directors or persons performing similar functions.
“Agreed Specification” shall mean all the requirements for a Deliverable specified in the Delivery Contract.
“Agreement” shall mean the Master Agreement (including the annexes thereto) as well as any Delivery Contracts
(including any appendices thereto) concluded by the parties and any Purchase Order(s) concluded by the parties.
“Bespoke Result” shall mean all results and Deliverables specifically developed for the Buyer as a result of the
assignment under the Agreement other than Customized Software.
“Buyer’s Data” shall mean data or other information that Buyer, or a person acting on behalf of Buyer, makes
available to Supplier, and the result of Supplier’s processing of data.
“Consultant” shall mean Supplier’s own employees as well as Supplier’s sub-contractors or other consultants
engaged by Supplier for the provision of the Result Services or Resource Services.
“Connection Point” shall mean the point or points where Buyer can access the Software-as-a-Service.
“Consignment Note” shall mean a specification to be prepared by Supplier and provided at the delivery of Goods.
“Customized Software” shall mean customer-specific software representing a new functionality or feature,
including documentation which has been produced by Supplier as a result of the assignment under the Agreement.
“Continuous Service(s)” shall mean Services provided by Supplier to Buyer under the Agreement with the
exception of Result Services, Resource Services or Software-as-a-Service. Support, maintenance, mail and repair services constitute examples of Continuous Services.
“Contractual Date of Delivery” shall mean the date agreed between the Parties when, at the latest, the
Deliverables shall have been accepted or approved, as applicable, by Buyer. Contractual Date of Delivery shall be agreed by the Parties in the Agreement. If the Deliverables comprise delivery of a Service other than Result Services, the Contractual Date of Delivery shall be the date when Supplier starts providing the Service(s).
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“Control Period” shall mean a period of time, starting at Supplier’s delivery of the Deliverable(s) to Buyer, reserved
for Buyer to inspect the Deliverables provided and verify their compliance with what has been agreed.
“Cure Period” shall mean the period of time defined in the Agreement, starting from Supplier’s receipt of Buyer’s
Notice of Non-compliance, within which Supplier shall remedy any non-compliance identified during a Control Period, in an Acceptance Test or during a Warranty Period, as the case may be.
“Delay” shall mean that Actual Date of Delivery occurs later than Contractual Date of Delivery.
“Deliverable(s)” shall mean all separate deliverables specified in the Delivery Contract(s) including any
Documentation.
“Delivery Contract” shall mean a specific agreement signed by both parties specifying the purchase of the
Deliverables.
“Delivery Site” shall mean the delivery address of the Goods as specified by Buyer in a Delivery Contract or a
Purchase Order.
“Documentation” shall mean documentation related to the assignment such as reports, pre-studies, design
documents, drawings, descriptions, manuals etc.
“End User” shall mean Buyer’s customer and/or customer’s user, as applicable.
“Goods” shall mean tangible goods (that is not Software) ordered by Buyer from Supplier. Goods shall include
any documentation for the goods.
“GTC” shall mean this Annex 1 to the Master Agreement – General Terms and Conditions.
“Intellectual Property Rights” shall mean any patent, registered design, copyright, design right, database right,
topography right, trade mark, service mark, the right to apply to register any of the aforementioned rights, trade secret, right in un-patented know-how and any other intellectual or industrial property right.
“Non-Customized Software” shall mean Supplier’s or third party standard software including documentation
supplied by Supplier under this Agreement and specified as Non-Customized Software.
“Notice of Non-compliance” shall mean a written report issued by Buyer where a non-compliance with the Agreed
Specification has been identified during an Acceptance Test, during a Control Period or during a Warranty Period.
“Open Source Software” shall mean a software program in which the source code is available to the general
public for use and/or modification from its original design free of charge.
“Personal Data” shall subject to variation under applicable mandatory law, mean in accordance with the
definition of the EU Directive 95/46/EC, any information relating to an identified or identifiable natural person (“data subject”) i.e. a person who can be identified directly or indirectly. “Purchase Order(s)” shall mean a specific order placed by Buyer under a Delivery Contract to purchase Supplier’s
Deliverables. “Resource Services” shall mean services under which Supplier makes available designated individuals to perform
assignments for Buyer under Buyer’s management control. “Result Services” shall mean consulting or other services provided by Supplier to Buyer under this Agreement
with the purpose to achieve a certain specified result for the benefit of Buyer. Result Services may include Deliverables such as software, implementation work, specifications, designs and reports. “Services” shall mean all the Result Services, Resource Services, Software-as-a-Service or Continuous Service
to be delivered by Supplier under the Agreement. “Software” shall mean Customized Software and/or Non-Customized Software.
“Software-as-a-Service” shall mean software provided by Supplier to Buyer as a functionality where software and
associated data are centrally hosted with the Supplier, instead of provided to Buyer under a software license.
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“Supplier Background IPR” shall mean IPR related to and required for the use of the Deliverables and which
either i) is owned by Supplier prior to the start of the term of the relevant Delivery Contract or ii) which is created during the term of the relevant Delivery Contract. “Territory” is normally the country/countries or region where the Deliverables shall be used and shall be specified
in each Delivery Contract. "Traffic Data" shall mean data which is processed for the purpose of transferring an electronic message via an
electronic communications network or in order to invoice such message such as, for example, time, extent, network used and technical data. “Warranty Period” shall mean the period of time defined in the Agreement, starting from Actual Date of Delivery,
within which Supplier shall remedy a non-compliance identified in the Deliverables and Buyer has notified Supplier in a Notice of Non-Compliance.
2. Supplier's Obligations
2.1. Supplier shall fulfil its obligations under the Agreement and is responsible for the Deliverables meeting the Agreed Specification(s). The Deliverables shall be purveyed with the level of expertise, training and skills called for by the assignment in question and following a good technical practice and business-like manner.
2.2. Supplier shall promptly inform Buyer if, in order to perform Supplier’s obligations under this Agreement or for Buyer to use the Deliverables, it is necessary to obtain permits, licenses or authorisations from authorities or others.
2.3. Supplier shall ensure that the defined scope of supply in quality and essence is sufficient in order for Supplier to meet the Agreed Specification and Buyer’s anticipated needs when providing the Deliverable(s). This means, inter alia, that Supplier shall use its best endeavours to request from Buyer all information that is relevant to enable Supplier to fulfil its undertakings as soon as the need for such information occurs. Upon Supplier’s request, Buyer shall promptly furnish Supplier with the information if it is readily available. If the information is not readily available, Buyer will advise Supplier on how to obtain it.
2.4. Supplier shall, upon Buyer’s request, work with other appointed suppliers of Buyer in order to provide the Deliverables under this Agreement. This means, inter alia, to interwork with external systems or networks which are out of Supplier’s scope of supply.
The interfaces between separate suppliers in their respective roles in providing for instance specifications, development, and maintenance, shall when applicable be regulated by a separate agreement between such suppliers.
2.5. If co-operation between Supplier and above mentioned suppliers causes conflicts or prevents or substantially hampers co-operation, the suppliers shall use best efforts to resolve the issues between themselves.
2.6. Supplier shall, at Supplier’s own cost, make back-up copies of
(a) the software, data and files developed or processed by Supplier under the Agreement, to the extent the work is performed in Supplier’s hardware environment;
(b) Buyer’s Data, files and programs in Supplier’s possession; and
(c) data, files and programs in Buyer’s hardware environment if Supplier has the operational responsibility for Buyer’s hardware and/or software environment under the Agreement.
3. Buyer's Obligations
3.1. Buyer shall be responsible for the accuracy of the information provided to Supplier.
3.2. Buyer shall make back-up copies of software, data and files before delivery of the same to Supplier. With the exception of what is stated in section 2.6 (c), Buyer is responsible for making back-up copies of data, files and programs in Buyer’s hardware environment.
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4. Result Services
4.1. What is stated in this section shall apply to Supplier’s provision of Result Services.
4.2. Supplier shall provide the Result Services according to the Agreed Specification and as generally set out in the Agreement.
4.3. If the assignment is divided into several milestones, Supplier may proceed to a subsequent milestone only after the acceptance by Buyer of the previous milestone, unless otherwise agreed in writing.
4.4. Supplier undertakes at Supplier’s own cost to provide necessary equipment as telephone, PC, working space and other ordinary office equipment.
4.5. In the event the cost, work or schedule estimates for the completion of the Result Services prove substantially different from those stated in the Agreement, Supplier shall inform Buyer to this effect in writing without delay. Buyer shall then have the right to immediately discontinue the Result Services, to stop further payments for work not yet performed and to terminate the Agreement in accordance with the applicable provisions in section 28.
4.6. Supplier shall ensure that any advice or recommendation given to Buyer in the course of the assignment is in compliance with legislation, regulations, and established practices.
4.7. Buyer or Supplier may propose changes to Supplier’s scope of supply after the Agreement has been concluded. A request for change according to this section shall be made in writing using a change request form.
4.8. Supplier shall number every change request and maintain a change request log. A template change request form is attached to the Agreement.
4.9. Change requests may pertain to deviations from the Agreed Specification in the Delivery Contract, in the time schedule or affecting the workload for Supplier resulting in reduced or extra cost for Buyer, as applicable. A change request shall be made as an amendment to the Delivery Contract. Amendments may only be approved on Buyer’s side by a person with documented authority to sign Buyer with binding effect (Group Procurement). A change request resulting in extra cost for Buyer in relation to the price stated in the Agreement is not valid or binding on Buyer until Supplier has received a purchase order (including signed amendments) from Buyer for the same.
Warranty
4.10. For Result Services, Supplier shall at Supplier’s expense be obliged to remedy any non-compliance with the Agreed Specification in the Delivery Contract occurring during a Warranty Period of twelve (12) months. All deviations from the Agreed Specifications are considered as non-compliant. Buyer's acceptance of Supplier's proposals, methods, acts or working results does not relieve Supplier from liability for any non-compliance which Buyer reasonably could not have discovered or foreseen at the time of acceptance.
4.11. Supplier's responsibility does not include non-compliance due to:
(a) incorrect use of any Deliverable(s) by Buyer;
(b) Buyer’s unauthorised modifications to Deliverable(s);
(c) defects in equipment or third party software other than provided or approved by Supplier, or
(d) incorrect information provided by Buyer to Supplier for the provision of the Deliverable(s).
4.12. Any non-compliance shall be remedied by Supplier within a Cure Period of fifteen (15) calendar days from Supplier’s receipt of Buyer’s Notice of Non-compliance. When the Cure Period has ended, Supplier shall without undue delay demonstrate to Buyer’s satisfaction that the non-compliance has been remedied.
4.13. If Supplier has not remedied the non-compliance within the Cure Period, Buyer has the right to, at the expense of Supplier, remedy the non-compliance by itself or through a third party.
4.14. If the non-compliance cannot be cured, Buyer is entitled to a price-reduction corresponding to the non-
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compliance and taking into account the extent and impact the non-compliance has on Buyer’s ability to use the Deliverable(s) for the contemplated purposes.
4.15. If Supplier’s scope of supply under the Agreement contains several Deliverables (Hardware, Software, Services) to be delivered within the frame of an implementation project, what is stated in this section 4 regarding Actual Date of Delivery, time schedule, change requests and warranty shall apply to the implementation project as a whole and all the Deliverables delivered pursuant to the implementation project.
5. Resource Services
5.1. What is stated in this section shall apply to Supplier’s provision of Resource Services.
5.2. Supplier shall provide the Resource Services according to the Agreed Specification and as generally set out in the Agreement.
5.3. The assigned consultant shall follow the specifications and instructions provided by Buyer in connection with the work to be performed.
5.4. Supplier shall at no extra costs for Buyer be responsible for damages caused by Supplier’s non adherence to any specification or instruction provided by Buyer, or by carelessness or neglect during the performance of the task.
6. Consultants
6.1. What is stated in this section regarding Consultants is applicable to Consultants performing either Result Services or Resource Services.
6.2. On Buyer's request, Supplier shall deliver individual competence profiles of Consultants engaged or to be engaged in a specific assignment. If Buyer requires or Supplier proposes a Consultant to be replaced, Supplier shall be obliged, within fifteen (15) calendar days, to appoint a new Consultant with equally good competence. The new Consultant shall be subject to approval by Buyer, such approval shall not to be unreasonably withheld. Supplier is, in such a case, responsible for the continuation of the assignment without adverse effects in performance (i.e. no delays, no degradation of quality and without any extra cost to Buyer). Supplier shall, on Buyer's request and without extra cost to Buyer, provide the new Consultant with all reasonable support needed to carry out the agreed assignment.
6.3. Supplier shall, at Supplier's own cost, be responsible for the training of the Consultants in order to provide the Result Service or the Resource Services. Buyer shall provide “Buyer specific training”, at Suppliers written request, if such training is necessary for Supplier in order to perform the Result Service or Resource Services under this Agreement.
6.4. If the Result Services or the Resource Services are performed at Buyer’s premises, Buyer shall provide the Consultants with work space and any special equipment and tools (including software) that are necessary and specific for the assignment in question. It is Buyer’s responsibility that such equipment and tools do not infringe any third party intellectual property rights.
7. Software-as-a-Service
7.1. What is stated in this section shall apply to Supplier’s provision of Software-as-a-Service.
7.2. Supplier shall provide the Software-as-a-Service according to the Agreed Specification and as generally set out in the Agreement.
7.3. Supplier shall provide Software-as-a-Service to Buyer at the Connection Point agreed in the Agreement.
7.4. Supplier shall provide the Software-as-a-Service in accordance with the availability levels and service levels, including fault-report process as applicable, agreed in the Agreement.
7.5. Buyer owns all rights to Buyer’s Data. Supplier may process Buyer’s Data only to the extent it is necessary to provide the Software-as-a-Service. Upon termination of the Agreement, or on Buyer’s request, Buyer’s Data shall immediately be returned to Buyer, in the format requested by Buyer, at no cost to Buyer.
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7.6. Supplier shall on Buyer’s request provide Buyer with any information Buyer requires in order to source Software-as-a-Service from a new supplier and to transfer Buyer Data to a new supplier. Supplier shall work actively and diligently with Buyer to ensure a smooth transition without any or minimal service interruptions from Supplier to a new supplier of software-as-a-service.
Warranty and indemnification
7.7. Supplier warrants that the Software-as-a-Service will be provided in accordance with the Agreed Specification including the service levels set out in the relevant Delivery Contract, and in all respect in accordance with best industry practice.
7.8. Supplier also warrants that the Software-as-a-Service of the relevant Delivery Contract do not violate any laws in the Territory in which the Software-as-a-Service shall be provided to End Users.
7.9. Supplier shall at its own option and cost, remedy any non-compliance of the warranties set out in clauses 7.7 and 7.8. Such remedy shall be made by Supplier within a Cure Period of fifteen (15) calendar days. If Supplier fails to remedy the non-compliance within the Cure Period, Buyer shall be entitled to a price reduction. The price reduction shall take into account Buyer’s limited ability to use the Software-as-a-Service for the contemplated purposes. For the avoidance of doubt, any other remedy available for Buyer, such as service level penalties, damages and the right to terminate the Delivery Contract, shall also apply and no remedy available shall be considered as an exclusive remedy.
7.10. In addition to the warranty set out above, the Supplier is liable and will hold Buyer harmless for all liability in all rightful claims directed towards Buyer under consumer protection legislation related to the Software-as-a-Service provided by Supplier.
8. Continuous Services
8.1. What is stated in this section shall apply to Supplier’s provision of Continuous Services.
8.2. Supplier shall provide the Continuous Services according to the Agreed Specification and as generally set out in the Agreement.
8.3. Supplier shall provide the Continuous Services in accordance with the availability levels and service levels, including fault-report process as applicable, agreed in the Agreement.
8.4. Buyer owns all rights to Buyer’s Data. Supplier may process Buyer’s Data only to the extent it is necessary to provide the Continuous Services. Upon termination of the Agreement, or on Buyer’s request, Buyer’s Data shall immediately be returned to Buyer, in the format requested by Buyer, at no cost to Buyer.
8.5. Supplier shall on Buyer’s request provide Buyer with any information Buyer requires in order to source Continuous Services from a new supplier and to transfer Buyer Data to a new supplier. Supplier shall work actively and diligently with Buyer to ensure a smooth transition without any or minimal service interruptions from Supplier to a new supplier of a continuous service.
9. Goods
9.1. What is stated in this section shall apply to Supplier’s provision of Goods.
9.2. Supplier shall provide Goods according to the Agreed Specification and as generally set out in the Agreement.
9.3. Supplier shall prepare a consignment note which shall include in minimum the following:
(a) Name of Supplier
(b) Purchase Order number
(c) Date of shipment and delivery
(d) Quantities and description of items; and
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(e) Delivery Site
9.4. After Buyer’s reception of the delivery at the Delivery Site, Buyer shall inspect the delivery for visible damages and visible deficiencies and note any such damages or deficiencies on the Consignment Note. Any damages or deficiencies shall be remedied by the Supplier without undue delay and at Supplier’s expense.
9.5. Goods delivered which is dead on arrival (DOA) shall be exchanged free of charge by Supplier. Supplier shall use its best effort to deliver the replacing the Goods on the Delivery Site the calendar day following the day of delivery of the DOA Goods.
9.6. Buyer’s signing the Consignment Note shall not constitute acceptance of the delivery and it shall not affect Buyer’s rights under the Agreement. Nor shall Buyer’s signing of the Consignment Note constitute an acceptance of any Supplier’s terms and conditions that may be attached to the Consignment Note. Such terms and conditions shall have no force or effect.
9.7. All Goods shall be packed in a manner suitable for transport, handling and storing and which prevents any mechanical damages or atmospheric influence during transport.
9.8. Goods shall be properly marked as specified in the Agreement. If not otherwise agreed in the Agreement, the Supplier shall ensure that marking of Goods contains quantity and serial numbers.
9.9. The following additional provisions shall apply when Buyer is entitled to act as a distributor and supply the Goods to its End Users
(a) Supplier hereby grants Buyer a non-exclusive right to purchase, market and resell the Goods to its End Users.
(b) When reselling the Goods to Buyer’s End Users, Buyer shall market the Goods independently. Supplier shall assist Buyer in the marketing of the Goods and shall continually at its own expense, provide Buyer with sales brochures, catalogues, and other marketing material relating to the Goods.
(c) Buyer shall be entitled to use the Supplier’s trademarks and brands for the purpose of promotion, advertisement, marketing and sale of the Goods as agreed in the Agreement.
(d) Supplier shall provide Buyer with dummy samples that represent the look and feel of the final version of the Goods (for display in shops or wherever may be decided). These non-returnable dummies shall be provided free of charge in quantities to be mutually agreed between the Parties. Supplier aims to deliver the dummies to Buyer with the first delivery of the Goods in question. Supplier provides Buyer, on case-by-case basis and as separately agreed a proposal for demonstration models (fully functioning device samples).
9.10. Supplier shall provide the type of maintenance and support Services that Buyer may elect to purchase from Supplier in connection to the Goods. Unless otherwise provided in the Agreement, maintenance and support Services shall be governed by the provisions regarding Continuous Service.
9.11. When Supplier provides Services in relation to the Goods such as, without limitation, installation and training, such Services shall be governed by the provisions regarding Result Services and/or Resource Services, unless otherwise provided in the Agreement.
9.12. Supplier shall ensure that Goods complies with all relevant laws and regulations applicable to production, testing and delivery, and that Hardware meets all relevant industry standards and the Sustainability Requirements. Moreover, Supplier shall be responsible for relevant testing and quality assurance of the Goods before delivery.
9.13. Supplier shall pay defence costs; Supplier negotiated settlement amounts and court-awarded damages which are finally awarded in third-party actions against Buyer under applicable product liability legislation in the relevant territory.
9.14. Supplier shall provide Buyer with such information that Buyer requests in relation to the product safety of the Goods. Supplier’s delivery of Goods which does not meet the requirements in relevant regulation and legislation regarding product safety and Sustainability Requirements shall be considered a material breach.
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In such case, Supplier shall be liable for any damage incurred by Buyer due to such breach, including but not limited to mandatory market re-call and/or replacement of Goods.
Warranty
9.15. Supplier warrants that the Goods during a Warranty Period of twelve (12) months will perform in accordance with the Agreed Specification and will be free from any deficiencies or defects in design, materials and workmanship.
9.16. Buyer shall notify Supplier of any breach of warranty or of any defects of deficiencies in the Goods occurring during the Warranty Period. Supplier shall, at it’s own option and cost, repair or replace the Goods without undue delay. The remedy or replacement of the Goods shall be made by Supplier within a Cure Period of fifteen (15) calendar days. If Supplier fails to remedy the defects within the Cure Period, Buyer shall be entitled to a price reduction for the defect or deficient Goods. The price reduction shall take into account Buyer’s limited ability to use the defect or deficient Goods for the contemplated purposes.
9.17. Supplier's warranty does not cover non-compliance(s) due to:
(a) Buyer’s use of the Goods in breach of the Agreed Specification;
(b) Buyer’s unauthorised modifications of the Goods; or
(c) defects in equipment or third party software other than provided or approved by Supplier.
9.18. Where Supplier remedies defects or deficiencies, or replaces Goods under Supplier’s warranty obligation, the remedied or replaced Goods shall be subject to a new Warranty Period, corresponding to the Goods’ remaining warranty period, or three (3) months from such remedy or replacement, whichever time period is the longest.
9.19. If the Goods cannot be repaired on its location, Supplier shall bear the cost for transportation to any alternative site for repair. Supplier undertakes to provide replacement of the Goods for the repair period if requested by Buyer.
Serial Failure
9.20. If a “Serial Failure” occurs, Supplier shall at its own cost and risk replace not only such Hardware in which the defect appeared, but also all other Goods (including spare parts) of the same type and consequently also in Goods for which the Warranty Period has expired. Replacement shall be made with Goods of modified or different design or construction suitable for the purpose in order to eliminate such systematic faults. Supplier is furthermore obliged to compensate damages incurred by Buyer as a consequence of the Serial Failure.
9.21. A “Serial Failure” will be deemed to have occurred where a percentage of Goods of the same product type supplied to Buyer in any three (3) month period suffers from the same defect. Such percentage level is set out in the respective Delivery Contract.
10. Software
10.1. What is stated in this section shall apply to Supplier’s provision of Software.
10.2. Supplier shall provide the Software according to the Agreed Specification and as generally set out in the Agreement.
10.3. The Software licensed by Supplier shall be listed in the Delivery Contract and specify as the case may be the number of users, applicable user definitions the applicable licensing models and the Documentation necessary for Buyer to make use of the Software.
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Non-Customized Software
10.4. If the Deliverables include Non-Customized Software, what is stated in sections 10.5 – 10.17 shall apply.
10.5. Title to all Intellectual Property Rights in or related to Non-Customized Software, including updates, upgrades, new versions and new releases, shall remain with Supplier or a third party.
10.6. Supplier grants to Buyer a limited, non-transferable (except as stated below), non-exclusive, worldwide, perpetual or subscription license as the case may be, to use the Non-Customized Software (including updates, upgrades, new versions and new releases) for its own business purposes. For the avoidance of doubt, the licence shall allow Buyer to use said Software for the purposes of providing products and services to Buyer’s End-users under this Agreement.
10.7. Buyer shall have the right to transfer the license and Software to an Affiliate of Buyer. Buyer shall have the right to transfer any license to another hardware, site or location upon prior written notice to Supplier.
10.8. If Buyer according to the Agreement is entitled to sublicense the Software to its End Users, the following shall apply:
(a) Supplier hereby grants to Buyer the right to sublicense to its End Users the Software and relevant updates of the Software.
(b) Buyer shall have the right to use the Software for the provision of hosted services to End Users.
(c) Supplier trademark means the name and logotype of Supplier (company trademark) including all related URLs and it is fully owned by the Supplier.
(d) Buyer trademark means the name and logotype of Buyer or other trademarks created by Buyer and these trademarks, including all related URLs are fully owned by Buyer. Buyer may, solely for marketing purpose, use the Supplier name and trademarks. The use of such name and trademarks shall be in accordance with the guidelines issued by Supplier.
10.9. Buyer may allow third party consultants or contractors performing assignments for Buyer to access and use the Software on Buyer’s behalf.
10.10. Except to the extent required by law, or to the extent permitted in the Agreement, Buyer shall not alter, modify, adapt, translate, decompile, disassemble, decrypt, extract or otherwise reverse engineer the Software.
10.11. If the Deliverable(s) include Non-Customized Software owned by a third party, Supplier will make all reasonable efforts in order for Buyer to obtain the rights set out in sections 10.6 – 10.9 above. If this is not possible, the license terms have to be approved by Buyer before any delivery of such third party software.
10.12. Supplier shall at Buyer’s request specify and make available to Buyer any software interfaces of the Non-Customized Software needed for the implementation of additional software applications and permit Buyer the use of such interfaces for the purpose of developing additional software.
10.13. If Supplier uses Open Source Software, and the Open Source Software is or may become part of the Deliverable(s) in any way, Supplier shall immediately inform Buyer of such use. Supplier shall at Buyer’s request replace such Open Source Software with other software.
10.14. Supplier shall provide the type of maintenance and support Services that Buyer may elect to purchase from Supplier in connection to the Software. Unless otherwise provided in the Agreement, maintenance and support Services shall be governed by the provisions regarding Continuous Service.
10.15. When Supplier provides Services in relation to the Software, such as, without limitation, installation and training, such Services shall be governed by the provisions regarding Result Services and/or Resource Services, unless otherwise provided in the Agreement.
10.16. Supplier confirms that the updates provided by Supplier will not have a material adverse effect on the overall performance of the Software or the functioning of the Software or be incompatible with the previous version of the Software.
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10.17. The Parties may agree to put the source code and the documentation for the Software in escrow with Buyer or an independent third party escrow agent in accordance with the terms and conditions set out in the Delivery Contract(s).
Customized Software
10.18. If the Deliverables include Customized Software, what is stated in sections 10.19 – 10.20 shall apply.
10.19. Unless otherwise agreed by the Parties, title to all Intellectual Property Rights in or related to Customized Software (including source and object code versions of software) no matter how generated in the course of Supplier providing the Deliverables, including but not limited to any and all updates, upgrades, derivative works, modifications or improvements related thereto, shall vest in and transfer to Buyer upon creation of the same and be the exclusive property of Buyer, subject to payment for the agreed fee for the Customized Software (i.e. excluding any fees for support, maintenance, expenses or the like)..The transferred Intellectual Property Rights include but is not limited to the right for Buyer to amend and modify the Customized Software and to transfer any Intellectual Property Rights thereto to third parties. For the avoidance of doubt, Supplier will transfer to Buyer the full description of such software including the description of the source code. Furthermore Supplier will not use any of its Intellectual Property Rights to create conditions that could prohibit the full exploitation and /or commercialisation of such software by Buyer for the agreed purpose.
10.20. Supplier shall have no right to utilise the Customized Software in its own operations.
Warranty
10.21. Supplier warrants that the Software, both Non-Customized Software and Customized Software, during a Warranty Period of twelve (12) months will operate in all material respects in accordance with the Agreed Specifications.
10.22. Buyer shall notify Supplier of any breach of the above stated warranty or of any errors in the Software that occur within the Warranty Period, and Supplier shall at its own option and cost, remedy the non-compliance or replace the Software. Such remedy or replacement of the Software shall be made by Supplier within a Cure Period of fifteen (15) calendar days. If Supplier fails to remedy the errors within the Cure Period, Buyer shall be entitled to a price reduction for the Software. The price reduction shall take into account Buyer’s limited ability to use the Software for the contemplated purposes. For the avoidance of doubt, any other remedy available for Buyer, such as service level penalties, damages and the right to terminate the Delivery Contract, shall also apply and no remedy available shall be considered as an exclusive remedy.
10.23. Supplier's warranty does not cover non-compliance(s) due to:
(a) Buyer’s use of the Software in breach of the Agreed Specification;
(b) Buyer’s unauthorised modifications of the Software; or
(c) defects in equipment or third party software other than provided or approved by Supplier.
11. Ordering procedure
11.1. Purchases under this Master Agreement shall always and only be made by Buyer by placing a Purchase Order with reference to the Delivery Contract. The Purchase Order shall be in writing and shall contain, without limitation, a list of ordered Deliverables, prices, a statement regarding delivery date, information concerning delivery site and an invoicing address. Upon the request of Buyer, Supplier shall enable Purchase Order to be made by electronic means in a system available on the market or as otherwise agreed between the Parties.
11.2. If no order rejection has been received within five business days after Buyer has placed the Purchase Order, the Purchase Order is deemed to have been accepted by Supplier as such.
11.3. For the avoidance of doubt, unless provided for in a Delivery Contract or Purchase Order, Buyer has no
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commitments under this Agreement and no obligation to place Purchase Orders.
12. Delivery and Acceptance
12.1. Supplier shall deliver the Deliverables DDP (Delivered Duty Paid, Incoterms 2010), at Buyer’s designated place.
Title to the Deliverables (except for Deliverables which Buyer only shall be licensed to use) shall pass to Buyer on the Actual Date of Delivery of the Deliverable in question or as otherwise agreed in the specific Delivery Contract.
If Buyer and Supplier agree in the Agreement that the Deliverables shall be subject to an Acceptance Test, the following shall apply:
12.2. Buyer shall not be obliged to start Acceptance Test, until
(a) all and complete Deliverable(s) has been delivered,
(b) all relevant software and hardware has been installed on site ready for operation,
(c) all relevant training has been performed, and
(d) all relevant documentation has been delivered.
12.3. In the event the Acceptance Test is not successful, Buyer shall provide a Notice of Non-compliance to Supplier. Buyer may provide Supplier with Notices of Non-compliance continuously during the Acceptance Test. The non-compliance shall be remedied by Supplier within a Cure Period of fifteen (15) calendar days from Supplier’s receipt of Buyer’s Notice of Non-compliance. When the Cure Period has ended, Supplier shall without undue delay demonstrate to Buyer’s satisfaction that the non-compliances have been remedied.
12.4. An Acceptance Certificate shall be issued and signed by Buyer no later than fifteen (15) calendar days after the Acceptance Test has been successfully performed.
12.5. Supplier shall reimburse Buyer any direct costs incurred by Buyer from repeated tests due to reasons attributable to Supplier. Supplier shall be entitled to be present at the Acceptance Tests, provided that Supplier’s presence does not impair Buyer’s activity. Buyer shall always be entitled to conduct Acceptance tests regardless of whether Supplier is present or not.
12.6. Acceptance does not relieve Supplier from its responsibilities and liabilities under this Agreement.
12.7. Where the Acceptance Test has been successful for parts of, but not all, Deliverables, Buyer may use the compliant Deliverables while the non-compliant Deliverables are being remedied by Supplier. However, no Deliverable will be considered accepted until all Deliverables have passed the Acceptance Test.
12.8. If Supplier has not remedied the non-compliance within the Cure Period, Buyer has the right to, at the expense of Supplier, remedy the non-compliance by itself or through a third party.
12.9. If the non-compliance cannot be cured, Buyer is entitled to a price-reduction corresponding to the non-compliance and taking into account the extent and impact the non-compliance has on Buyer’s ability to use the Deliverable(s) for the contemplated purposes.
12.10. Acceptance Test shall be deemed to have been successfully performed notwithstanding any minor non-compliance the Deliverable(s) may suffer from, provided that it is apparent that the non-compliance is not essential for the proper use, operation and maintenance of the Deliverable(s) in question or for any Acceptance Test(s). The Parties shall record the non-compliance and agree on a time schedule for the remedying of the minor non-compliance within (thirty) 30 calendar days after the Acceptance Certificate is issued and signed.
If the Deliverable(s) are not subject to an Acceptance Test, the following shall apply:
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12.11. To the extent Buyer in its sole discretion deems appropriate, Buyer has the right to review the contents of the Deliverable(s) and to control any non-compliance in the Deliverables at its own cost and risk before acceptance can be deemed to have occurred.
12.12. Buyer shall within a Control Period of thirty (30) calendar days from Supplier’s delivery of the Deliverable(s) to Buyer, notify Supplier in writing of any non-compliance in the Deliverable(s). Supplier shall at its own expense remedy any such non-compliance within a Cure Period of ten (10) calendar days from the receipt of Buyer’s Notice of Non-Compliance.
12.13. If the Buyer has provided the Supplier with a Notice of Non-Compliance, the Actual Date of Delivery shall be deemed to have occurred when Supplier has demonstrated to Buyer’s satisfaction that the non-compliances have been remedied.
12.14. If the Buyer has not provided the Supplier with a Notice of Non-Compliance by the end of the Control Period, the Deliverables shall be deemed accepted by Buyer and the Actual Date of Delivery occurs when the Control Period expires.
12.15. If the non-compliance cannot be cured, Buyer is entitled to a price-reduction corresponding to the non-compliance, taking into account the extent and impact the non-compliance will have on Buyer’s ability to use the Deliverable(s) for the contemplated purposes.
13. Delays
13.1. Taking into account that Buyer attaches great importance to timely fulfilment by Supplier of Supplier’s obligations under the Agreement and that any Delay likely will result in severe damage to Buyer, the Parties have agreed that Supplier shall pay Buyer liquidated damages arising from any Delay which is caused by Supplier’s acts or omissions or anyone for which Supplier is responsible, in accordance with the following provisions without being obliged to prove the existence of, or quantify, any suffered damage.
13.2. Supplier shall for each commenced week of any Delay pay liquidated damages to Buyer amounting to two (2) per cent of all fees paid under the relevant Delivery Contract during the 24 month period preceding the event giving rise to the liquidated damages, or in case the Delivery Contract has been in force less than 24 month, all fees anticipated to be paid during a 24 month period starting from the Effective Date of the Delivery Contract.
13.3. Liquidated damages shall for each occurrence which gives Buyer right to liquidated damages, shall not exceed 16 (sixteen) per cent of the total value of the Delivery Contract.
13.4. Supplier shall on Buyer’s request without delay provide Buyer with a credit note corresponding to the value of the liquidated damages due to Supplier’s Delay.
13.5. In case the damage caused by the Delay is greater than the liquidated damages payable to Buyer in accordance to 13.1 to 13.4 above, Buyer is entitled to claim additional damages due to the Delay beyond any liquidated damages in accordance to the provisions of section 20 of this annex.
13.6. If Buyer is in delay with respect to any of its undertakings under the Agreement, Buyer shall have the right to amend the time schedule without liability to the Supplier. Supplier shall however still be obliged to fulfil its obligations on schedule to the extent that the fulfilment of the delayed Buyer's obligations is not necessary for Supplier to fulfil its obligations.
14. Price
14.1. Buyer shall pay the price for the Deliverables as specified in the Agreement. The price shall include all relevant costs for the provision of the Deliverables such as any and all taxes (excluding VAT), duties, levies etc.
14.2. Buyer shall not be liable to pay any fee or compensation other than those set out in the Agreement.
14.3. All prices are exclusive of value-added tax, which, if applicable, will be added to the invoices.
14.4. Supplier´s rates and charges (including taxes, payments, custom duties and other fees) for the Deliverables as well as any ancillary charges associated with the provision of the Deliverables shall be set forth in the
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Delivery Contract. Buyer shall only pay to Supplier the rates and charges for the Deliverables as set forth in the Delivery Contract, plus value added tax (if applicable).
14.5. Supplier shall submit the invoice to Buyer’s address stated in the Agreement.
15. Invoicing and Payment Terms
15.1. Payment shall be made to the account set out in Supplier invoices and shall be deemed to have been fully discharged when so made.
15.2. The fees shall be invoiced by Supplier at the latest within 12 months of the respective Actual Date of Delivery of the Deliverables. If Supplier fails to send the invoice within that time period, Supplier loses its right to remuneration for the relevant Deliverables.
15.3. Buyer will pay fees within sixty (60) calendar days after receipt of a correct invoice.
15.4. Each invoice shall contain at least the following information:
(a) The name of the project and/or Deliverable(s)
(b) References (contact person/involved unit of the Parties)
(c) Scope and contents of the invoiced Deliverables, including units and unit price
(d) The period the invoice refers to
(e) Information whether the invoice is final or an invoice for an instalment
(f) Detailed information concerning any expenses.
(g) Purchase order number
(h) Cost centre number (or WBS number, internal order or profit center, as applicable)
(i) Required tax information: Supplier VAT registration number, corporate identification number, applied tax rate, VAT amount to be paid, and , if applicable, reversed tax chargeability for construction companies
(j) Required information to be able to execute a payment: bank account number, OCR / invoice reference, IBAN number and SWIFT address.
15.5. For Resource Services, Supplier must be able to certify the invoicing through a time reporting system per person.
15.6. Supplier shall not be entitled to charge any invoice fee(s).
15.7. Payment, as such, shall not be considered as an acceptance of the Deliverables.
15.8. Debit invoices and credit invoices must be separate documents.
15.9. Interest fee, in case of delay in payments, shall be calculated according to the Swedish Interest Act (Sw: Räntelagen 1975:635).
15.10. The Supplier shall, upon the request of Buyer, provide invoicing by means of electronic invoicing in a e-invoicing system available in the market or otherwise as agreed between the Parties.
16. Reporting and Governance
16.1. Buyer and Supplier shall meet on a regular basis, as requested by Buyer, to discuss Supplier’s performance based on the reports provided by Supplier, and to exchange information relevant to the Parties’ undertakings under the Agreement. As the case may be, the Parties may agree upon a governance system as further defined in the Agreement.
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17. Use of Sub-Contractors
17.1. Supplier shall have the right to engage sub-contractors for Supplier's provision of the Deliverables. Supplier shall present a list of any sub-contractor(s) Supplier has engaged or intends to engage for Supplier's provision of the Deliverable(s). Supplier shall on Buyer’s reasonable request be obligated to disengage such sub-contractor.
17.2. Supplier’s obligations and liability under this Agreement is not affected by Supplier’s engagement of sub-contractors and Supplier shall remain fully responsible for all undertakings pursuant to the Agreement.
18. Intellectual Property Rights
18.1. Party’s or third party’s Intellectual Property Rights that party owned prior to when the Agreement entered into force shall remain the property of that party.
18.2. The Intellectual Property Rights to Customized and Non-Customized Software are regulated in section 10 and in the relevant Delivery Contract.
18.3. Supplier grants Buyer a non-exclusive, personal, irrevocable, world-wide, royalty-free license to use the Supplier Background IPR and to execute, reproduce, display, perform, sublicense to its Affiliates, distribute and prepare a reasonable number of back-up copies of it for use of the Deliverables.
18.4. Unless otherwise agreed by the Parties, title to all Intellectual Property Rights in or related to Bespoke Result no matter how generated in the course of Supplier providing the Deliverables, including but not limited to any and all updates, upgrades, derivative works, modifications or improvements related thereto, shall vest in and transfer to Buyer upon creation of the same and be the exclusive property of Buyer. The transferred Intellectual Property Rights include but is not limited to the right for Buyer to amend and modify the Bespoke Result and to transfer any Intellectual Property Rights thereto to third parties.
19. IPR Indemnity
19.1. Supplier warrants that Supplier has the right and the power to grant Buyer any rights in respect of software and other Deliverables provided under this Agreement. Moreover, Supplier warrants that the Deliverables do not infringe any existing patent, registered design, copyright or other Intellectual Property Rights owned by any third party.
19.2. Supplier shall at its own expense defend and settle any claim against Buyer alleging that the use of the Deliverables in accordance with the Agreement infringes Intellectual Property Rights of a third party. Supplier shall pay infringement claim defence costs, Supplier negotiated settlement amounts, and court-awarded damages. The foregoing shall apply provided that Buyer without undue delay informs Supplier in writing of any such claim. Supplier shall have sole control over any proceeding or settlement. Buyer shall provide its reasonable assistance with respect to such proceeding or settlement to Supplier at Supplier’s cost. If Buyer is a named party in the proceedings, Supplier shall keep Buyer fully informed and Buyer shall have the right to be present at the proceedings with separate counsel at its own expense.
19.3. If Supplier does not act against such claims or actions, Buyer shall within a reasonable time have the right to take appropriate legal action and shall be repaid any and all expenses in so doing.
19.4. If, as a result of any binding settlement or a final determination by a court of competent jurisdiction, the Deliverables are held to infringe any third party rights and the use of the Deliverables is enjoined, or if Supplier reasonably determines that any of the Deliverables may become subject to a claim of infringement, Supplier shall at its cost and expense and at its option;
(a) procure for Buyer the right to continued use; or
(b) replace or modify the Deliverables so that they cease to infringe the third party rights, while Supplier stays fully compliant with the terms and specifications of this Agreement; or
if neither of the foregoing is possible on reasonable commercial terms, refund Buyer the amount paid under the Agreement. Buyer shall have the right to terminate the relevant Delivery Contract or Purchase Order (at Buyer’s discretion), in whole or in part, with immediate effect in accordance with section 28.2 (without the
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remedy period set out in that clause), if Supplier is unable to procure rights or replace or modify the Software in accordance with (a) or (b) above.
19.5. Any such replacement or modification as set out in section 19.4 (b) must be approved by Buyer in advance, such approval not to be unreasonably withheld.
19.6. Supplier shall not be obliged to defend or indemnify Buyer if any claim of infringement results from:
(a) Buyer’s unauthorised modifications to the Deliverables;
(b) Deliverables used as specifically prohibited in the Agreed Specifications, or
(c) a combination of the Deliverables and equipment or third party software other than equipment or third party software provided or approved by Supplier, to the extent that the infringement is due solely to such combination.
20. Liability
20.1. Either Party is liable for damages caused by that Party, including the Party’s Affiliates, employees, consultants, acts or omissions.
20.2. In no event shall either Party be liable to the other for any indirect damages including, but not limited to, loss of revenue or profits, contract customers or businesses, consequential damages, incidental damages, anticipated savings or revenues.
20.3. A Party’s total annual liability under each Delivery Contract is limited to the total value of each Delivery Contract or EUR 500,000, whichever is higher.
20.4. In no event shall either Party be liable to the other for the loss or corruption of data, unless such Party is obligated under this Agreement to make back-up copies of the data, in which case the other Party may claim any costs related to the recovery of such data as direct damages.
20.5. The limitations set out in this section 20 shall not apply for damages arising out of breach of section 9.11-9.13 (Product Liability), 19 (IPR Indemnity), 23 (Confidentiality), 25 (Personal Data Protection) or to damages caused by any Party’s or Party’s sub-contractor’s gross negligence or wilful misconduct or to injury to life and/or health.
20.6. For the avoidance of doubt, Buyer shall, in accordance with the foregoing provisions in this section 20, be entitled to compensation for damages suffered due to acts or omissions by Supplier above and beyond any liquidated damages for Delay according to section 13 "Delays" or compensation under relevant Warranty section. However, Supplier shall be entitled to set off any liquidated damages paid against the compensation or damages payable to the extent the liquidated damages has been paid as a consequence of the same Delay or defect or deficiency which has caused the damage.
20.7. The Parties shall take all reasonable measures in order to prevent or limit any damage, provided that it can be done without unreasonable cost or inconvenience.
21. Insurance
21.1. Supplier shall at all times keep in effect liability insurance policy covering any claims for damages which Buyer may be entitled to under this Agreement. Upon Buyer’s request, Supplier shall provide Buyer with appropriate documents in order to confirm the existence of appropriate liability insurance policy.
22. Force Majeure
22.1. A Party shall be released from liability to compensate loss or from the obligation to perform certain obligations pursuant to this Agreement provided the loss or the omission is due to an event beyond the Party’s control (“Force Majeure Events”) and the event prevents, significantly obstructs, or delays the performance thereof. The same applies where the loss or the omission is due to Delay from a Party’s sub-contractors caused by a Force Majeure Event.
22.2. A Party which invokes release pursuant to section 22.1 shall immediately notify the other party in writing
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thereof. If the circumstances constituting Force Majeure continue for more than two (2) months, either Party shall have the right to terminate as set out in section 28.9.
22.3. Reasonable preventive measures shall have been taken by Supplier to provide comprehensive protection against fire, burglary or flooding of Supplier's premises. If reasonable preventive measures have not been taken, no such event shall constitute a Force Majeure Event.
23. Confidentiality
23.1. The Parties expect to co-operate and enter into business relations concerning the supply of the Deliverables (the “Permitted Purpose”) and exchange information which may be Confidential Information. “Confidential Information” shall mean information of whatever nature whether oral, written or in electronic or any other form related inter alia to the disclosing Party (the “Disclosing Party“), its business, technology, partners, affiliates, customers and/or suppliers which the Disclosing Party has disclosed to the other Party (the “Receiving Party“) under the Agreement. Any records or copies or extracts in any media of that information shall also constitute Confidential Information.
23.2. Confidential Information shall not include any information
(a) which is within the public domain at the time of disclosure or later becomes part of the public domain through no breach of this Agreement by the Receiving Party;
(b) which was lawfully known to the Receiving Party prior to disclosure by the Disclosing Party;
(c) was independently disclosed to Party by a third party entitled to disclose the same;
(d) which can be shown to have been independently developed by the Receiving Party without any reference to any Confidential Information of the Disclosing Party; or
(e) the use or disclosure of which has been authorized in writing by the Disclosing Party prior to the intended use or disclosure of such confidential information.
With reference to circumstances set forth in sub-section c) above, the Receiving Party shall not be entitled to disclose to a third party that the corresponding information has also been received from the Disclosing Party under the Agreement.
23.3. The Receiving Party shall keep Confidential Information as confidential and shall not use, copy, reproduce, store or refer to Confidential Information for any other purpose than for the Permitted Purpose, and shall not disclose Confidential Information to any third party without the prior written consent of the Disclosing Party. However, obligations of confidentiality in this chapter 23 shall not prevent Buyer from using the Service in its ordinary course of business, whether the Deliverables contain Confidential Information or not.
23.4. The obligations of confidentiality in this section 23 shall not prevent either Buyer or Supplier from disclosing such Confidential Information where it is required to do so under any mandatory law, or by order of a court or governmental body of authority of competent jurisdiction, or by any mandatory requirement of a regulatory authority or by the rules of any recognised stock exchange. If legally possible and applicable, the recipient of such order shall notify the other Party to allow a reasonable opportunity to seek protective order or equivalent or to appeal, and to extent reasonably possible, make effort to protect any sensitive information.
23.5. The Receiving Party may give access to Confidential Information only to those of its Affiliates, officers, employees, consultants, subcontractors or financial, legal or other advisors, who need to know such Confidential Information for carrying out the Permitted Purpose. The Receiving Party shall ensure that such persons or entities, prior to such disclosure, are bound by undertakings corresponding to the obligations of confidentiality in this section 23. However, such individual undertaking shall not limit The Receiving Party’s own liability under this Agreement.
23.6. A Party does not have the right to use the other Party´s or its Affiliates trademarks, service marks, trade names, logos or other signs or identification symbols or to otherwise make a public announcement or other publications, advertising or business campaigns or to refer to the Agreement without the written approval of the other Party. If a Party would like to make any public announcement, it shall notify in writing the other Party who may, at its sole discretion, refuse publication or agree to the text and conditions of such
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publication as proposed by the other Party or as mutually amended and agreed by both Parties.
23.7. Notwithstanding the foregoing, either Party may make a public announcement concerning this Agreement or any ancillary matter if required by law or by any securities exchange or governmental body with jurisdiction over the Party subject to that the Receiving Party, if permitted by law, notifies the Disclosing Party thereof in order to allow Disclosing Party a reasonable opportunity to seek a protective order or equivalent, provided such notice is permissible.
23.8. At the request and sole discretion of the Disclosing Party, the Receiving Party shall, within fourteen (14) calendar days from receipt of such request, purge from its system and return all originals, copies, reproductions and summaries of Confidential Information and all other tangible materials and hardware provided to the Receiving Party as Confidential Information or, to the extent not possible or the Disclosing Party so requests, certify destruction of the same.
23.9. The Parties’ obligations under this section 23 shall remain in force for a period of three (3) years from the date of any expiration or termination of this Agreement.
24. Security
24.1. Supplier shall always adhere to common security instructions and Buyer’s “Security Directives” and their updates applicable at each point in time depending on the nature of the Deliverables to be provided by Supplier. A copy of the current Security Directives is attached hereto in Annex 3. Such Security Directives may be supplemented by further security instructions as provided by Buyer. Supplier shall ensure that its Affiliates, employees, consultants, sub-contractors and other representatives comply with those requirements.
24.2. Supplier shall immediately notify Buyer about any such incidents or deficiencies in Supplier’s operations or which the Supplier has noticed about Buyer’s operations which may constitute security risks for Buyer.
24.3. Supplier shall have access to Buyer’s IT systems only to the extent and under the requirements specifically agreed in writing between the Parties in each case.
24.4. Supplier shall not copy or reproduce information on data files, hard copy or other tangible media which results in the removal of any marking of ownership or of security class. Supplier shall always handle information on data files, hard copy or other tangible media in a way that results in that considerable effort is required for any unauthorized persons to gain access to the information, regardless of if the information is handled within Supplier’s premises or not.
24.5. Supplier shall, when providing the Deliverables, fulfil the requirements set out by legislation and rules and regulations of competent authorities. In addition, Supplier agrees, that the necessary access to Buyer’s or its Affiliate’s systems and data required for the provision of the Deliverables under this Agreement shall be in accordance with Buyer’s or its Affiliate’s policy on data processing.
25. Personal Data Protection
25.1. For the provision of Deliverables, Supplier may process Personal Data, i.e. data pertaining to Buyer’s customers, Buyer’s employees or other persons, on behalf of Buyer in order to fulfil Supplier’s obligations under each Agreement. Supplier shall then be regarded as processor of the Personal Data and Buyer shall be regarded as the controller of the Personal Data.
25.2. For the avoidance of doubt, Buyer may also act as data processor in relation to End-Users and in such case Supplier shall be considered as data sub-processor in relation to Buyer.
25.3. Personal Data may refer to all kinds of information that directly or indirectly may refer to a natural person, e.g. name, address, social security number, subscription number, IP address, Traffic Data or message content.
25.4. The processing of Personal Data is regulated by national laws and regulations, which may differ from
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country to country. Supplier shall ensure that its processing of Personal Data on behalf of Buyer is in compliance with applicable Personal Data legislation i.e. normally the legislation in the country where the data controller is established.
25.5. Supplier and any person or persons employed or engaged by Supplier may only process Personal Data in accordance with the provisions set forth in each Agreement and/or following other specific instructions from Buyer, provided from time to time. Supplier shall not process Personal Data over and above what is necessary in order for Supplier’s performance and provision of the Deliverables to Buyer under each Agreement.
25.6. In order to provide adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals when processing Personal Data (currently following the principles set forth by the EU Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regards to processing of personal data and on the free movement of such data), a “Specification of Personal Data” shall, in any and all cases where Personal Data is processed under an Agreement, be completed in accordance to the template provided by Buyer to Supplier and shall be attached to each Delivery Contract. The Specification of Personal Data shall, without limitation, describe the categories of Personal Data involved, the purpose of the processing and the technical and organisational security measures implemented by the data processor. Such Specification of Personal Data shall be attached directly to the relevant Delivery Contract or included in the Data Processing Agreement as applicable.
25.7. Supplier shall implement appropriate technical and organisational measures to protect the Personal Data that is processed. Such measures, as described in section 24 “Security” and the Security Directives or other instructions (as applicable), shall provide a level of security that is appropriate having regard to:
(a) the technical possibilities available,
(b) what it would cost to implement the measures,
(c) the special risks that exist with processing of Personal Data, and
(d) how sensitive the Personal Data processed is.
25.8. Where a person referred to in any Personal Data, or where the Swedish Data Inspection Board (or its equivalent in other countries) or any other third party is requesting Personal Data processed under this Agreement from Supplier, Supplier shall refer to Buyer. Supplier is not allowed to disclose Personal Data or any other information regarding the processing of Personal Data without Buyer’s previous consent in writing, unless Supplier is obliged by mandatory law to disclose such information. In the latter case, Supplier shall immediately notify Buyer of the request.
25.9. When processing of Personal Data is no longer required under a Delivery Contract, or when a Delivery Contract expires or is terminated, Supplier shall return to Buyer all Personal Data and all data which is related to the processing performed on behalf of Buyer or, to the extent not possible or if Buyer so requests, certify the destruction of the Personal Data.
For processing of Personal Data between Buyer and Supplier (i) established in any of the EU member states or in any other EEA member countries (currently Norway, Lichtenstein and Iceland) (together the “EEU/EEA area”), or (ii) established in a country deemed safe by the EU Commission as regards the handling of personal data, sections 25.1-25.10 and section 25.13 shall apply.
25.10. The processing may in this case be performed provided that (i) Supplier established in any of the aforesaid countries undertakes to be compliant with the applicable Personal Data regulations in force in the relevant country which provide adequate safeguards with respect to the protection of the privacy and fundamental rights and freedoms of individuals and as regards the exercise of the corresponding rights and (ii) the Parties have completed and attached to each Delivery Contract the Specification of Personal Data in accordance to section 25.6 above. In such case, the “Personal Data Protection” provisions enclosed, the Specification of Personal Data as duly completed in accordance to above, the Security Directives and any other security appendices to the Delivery Contract (if applicable), shall, constitute a data processing agreement between
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the Parties.
For transfer of Personal Data between Buyer and Supplier outside the two cases expressly specified above i.e. transfer to a “Third Country”, sections 25.1 - 25.9 and sections 25.11 - 25.13 shall apply.
25.11. The transfer is in this case subject to conditions aiming to provide corresponding guarantees as in the EU/EEA area (guarantees for adequate level of protection in the recipient country or special safeguards protecting the personal data and the rights of the data subjects).
25.12. In such case, the Parties shall enter into a separate “Data Processing Agreement” (“DPA”) in accordance to the template provided by Buyer. The DPA shall incorporate the Standard Contractual Clauses as required by Article 26 (2) of EU directive 95/46/EC, and which provide adequate safeguards with respect to the protection of the privacy and fundamental rights and freedoms of individuals and as regards the exercise of the corresponding rights. Personal Data may accordingly flow from the data controller established in the EU/EEA area to a data processor established in a country not ensuring an adequate level of data protection (“Third Country”).
Transfer of Personal Data by Supplier to any third party (including any sub-contractor)
25.13. Supplier is not entitled to transfer Personal Data to any third party or to engage sub-contractors for the processing of Personal Data (altogether “third party”), without Buyer’s previous consent in writing. Should such consent be granted, Supplier’s transfer of Personal Data to such third party is subject to that Supplier as data processor ensures that such third party has the same obligations towards Buyer as the Supplier has. Such requirement shall be secured prior to any transfer of Personal Data either (i) by Buyer entering into a separate data processing agreement with each third party for the transfer of Personal Data in accordance to the template provided by Buyer (a “DPA”) or (ii) by Buyer expressly granting Supplier the right to enter into Supplier’s own data processing agreement with the identified third party(ies) on behalf of Buyer. In such case, Supplier must always inform Buyer of the name and domicile of the legal entity acting as data processor. Supplier remains responsible for such third-party(ies) compliance with the obligations set out in the data processing agreement.
26. Telia Company Supplier Code, Sustainability
26.1. With the purpose to comply with national, European and international rules as well as international conventions and industry standards and in order to ensure responsible governance and sustainable development in connection with Buyer’s sourcing activities, Buyer has issued group wide ethical and responsible standards of behaviour completed by relevant sustainability requirements.
26.2. The “Group Telia Company Supplier Code of Conduct incl Black and Grey list” (Annex 2) includes, without limitation, social requirements (particularly human rights, labor rights and health and safety), anti-corruption requirements, environmental requirements (including prohibited substances and substances to avoid) and compliance requirements.
26.3. The above requirements and their updates applicable at each point in time including as the case may be more detailed sustainability requirements and references to standards that Supplier is requested to adhere to (attached hereto as Annexes or to specific Delivery Contracts as Appendices if applicable) are jointly referred to as the “Supplier Code”.
26.4. Supplier, including its Affiliates, shall comply with the Supplier Code as well as relevant national legal requirements in relation to the areas covered by the Supplier Code. Those requirements (provided that some of them may vary depending on the nature of the Deliverables to be supplied) set out the minimum level of compliance required from Supplier. Supplier may however contractually agree with Buyer on further specific requirements as appropriate.
26.5. Supplier shall on a regular basis as requested by Buyer, provide Buyer with information and data related to Supplier’s compliance with the Supplier Code and of the measures adopted to ensure compliance with the Supplier Code. Buyer shall also have the right to perform audits in accordance with this section to verify Supplier’s compliance with the Supplier Code.
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26.6. Supplier shall without delay inform Buyer of any suspected breach of the Supplier Code.
26.7. Supplier shall reflect the content of the Supplier Code in its agreements with its sub-contractors.
26.8. In the event of Supplier’s material breach of the requirements of the Supplier Code, Buyer shall have the right to immediately terminate any and all of this Master Agreement and/or specific Delivery Contract(s) notwithstanding the remedy period provisions in section 28.2.
26.9. Buyer may carry out sustainability evaluations of Supplier (“Evaluation”). If Supplier has not participated in and completed an Evaluation during the pre-agreement process Supplier shall participate in and complete an Evaluation promptly after the Effective Date. If such Evaluation is not to Buyer’s satisfaction, Supplier shall on Buyer’s request present a corrective action plan, which shall be subject to Buyer’s approval. Supplier’s participation in an Evaluation and/or a corrective action plan shall be performed at Supplier´s own cost. If Buyer does not approve the corrective action plan or if Supplier’s compliance with such corrective action plan is not to Buyer’s reasonable satisfaction, Buyer may terminate the Master Agreement and/or specific Delivery Contracts with 30 days written notice without Buyer being obligated to compensate Supplier due to such termination. The provisions in this section 26.9 shall be without prejudice to other rights that Buyer may have to ensure Supplier´s compliance with the Supplier Code in accordance with the provisions of Section 26 ”Supplier Code, Sustainability” and Section 27 ”Audit”.
26.10. If requested by Buyer Annex 2.1 “Anti Corruption Contract Clause” shall be included in the Agreement and considered an integral part of it.
27. Audit
27.1. Buyer shall be entitled to perform audits at Supplier’s premises or sites and/or at Buyer’s premises or sites regarding Supplier’s proper fulfilments of the Agreement as regards pricing and invoicing, quantity and quality of the Deliverables and related processes, Confidential Information, IT and premises security, Personal Data protection and the Supplier Code. Such audit shall be performed, subject to advance notice of seven (7) business days.
27.2. Buyer shall be entitled to perform short-notice audits with three (3) hours prior’ notice if a distinct incident has given rise to ground for suspicion of Supplier’s breach of the Supplier Code.
27.3. Audit may only be carried out either by Buyer’s staff or by professional third party contracted by Buyer, provided that the contracted third party has entered into confidentiality undertakings reasonably acceptable to Supplier. Audit must take place during regular business hours and shall be carried out with the intention to avoid to interrupt Supplier’s business.
27.4. Buyer shall bear its own costs for audits, unless the audit identifies a breach of the Agreement by Supplier, which is not insignificant, in which case Supplier shall bear Buyer’s cost for the audit. Supplier shall always bear Supplier’s cost for audits.
28. Termination
28.1. Termination by a Party shall be made in writing and sent to the other Party in accordance with what is set out in the section “Notices”. The reason for termination shall be clearly stated.
Termination due to material breach
28.2. Buyer is entitled to at Buyer’s discretion immediately or with three (3) months notice terminate this Master Agreement and/or specific Delivery Contract(s), in whole or in part, if Supplier commits a material breach of any of its obligation(s) under the Master Agreement and/or Delivery Contract(s) and does not remedy such breach within thirty (30) days of receiving a written notice from Buyer requesting Supplier to remedy the breach.
28.3. Supplier is entitled to with one (1) month notice terminate this Master Agreement and/or specific Delivery Contract(s) if Buyer commits a material breach of its obligation(s) under the Master Agreement and/or Delivery Contract(s) and does not remedy such breach within thirty (30) calendar days of receiving a written notice from Supplier, requesting Buyer to remedy the breach.
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Termination due to Delay
28.4. Buyer is entitled to terminate a Delivery Contract or Purchase Order (at Buyer’s discretion), in whole or in part, with immediate effect for any Supplier’s Delay exceeding thirty (30) calendar days. Supplier is entitled to compensation if, and only to the extent, the result of the Deliverables has a corresponding value to Buyer.
Termination for convenience
28.5. Notwithstanding any agreed agreement period or notice period, Buyer is always entitled to terminate specific Delivery Contract(s), in whole or in part, with twenty (20) business days’ prior notice. Buyer shall then accordingly pay for any work performed up to the date the termination is effective to the extent the Deliverables have a corresponding value to Buyer.
Termination due to Supplier’s failure to remedy non-conformities in the Deliverables
28.6. Buyer is entitled to terminate a Delivery Contract, in whole or in part, where Supplier, following an Acceptance Test or following Buyer´s own control of non-compliance in the Deliverables during the Control Period, has failed to cure such non-compliance regarding certain Deliverables. Buyer shall then pay for any work performed up to the date the termination becomes effective to the extent the Deliverables have a corresponding value to Buyer.
Termination due to change of control
28.7. Buyer is entitled to terminate this Master Agreement with immediate effect if the majority voting power or decision making power of Supplier is transferred to a third party outside the current Supplier group.
Termination due to insolvency
28.8. Either Party is entitled to terminate this Master Agreement with immediate effect, if the other Party is declared bankrupt, has filed a voluntary petition for bankruptcy, or has a voluntary petition of bankruptcy filed against it, or has otherwise become insolvent.
Termination due to Force Majeure
28.9. Either Party is entitled to terminate the Master Agreement, and/or the affected Delivery Contract(s), in whole or in part or the affected Purchase Order(s), without being obligated to compensate the other Party, if the other Party fails to perform any material obligations under the Agreement for a period of two (2) months due to a Force Majeure Event.
29. Consequences of Termination
29.1. A termination does not limit a Party's right to require the fulfilment of other rights the Party may have under this Agreement.
29.2. Following termination under section 28, Supplier is obligated to report the status of any outstanding work and provide the result of Supplier's accrued work up to the time for termination to Buyer.
29.3. Upon termination or expiry of the Master Agreement and/or a Delivery Contract, the Parties shall agree to the conditions pursuant to which Supplier shall cease to provide the Deliverables (including agreement on a transition period as required from time to time) and, as the case may be, Buyer shall return to Supplier certain Deliverables or certify destruction of the same. Supplier shall also on Buyer’s request provide Buyer with any information Buyer requires in order i) to source the Deliverables from a new supplier or ii) for Buyer itself to continue use of the Deliverables in its own operations. Supplier shall on Buyer’s request transfer Buyer’s Data to a new supplier or back to Buyer. Supplier shall work actively and diligently with Buyer to ensure a smooth transition without any or minimal service interruptions.
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30. Notices
30.1. Notices under this Master Agreement shall be in writing and shall be mailed as certified mail or sent by nationally recognized courier (with proof of delivery receipt or acknowledgement of receipt) to the Supplier or Buyer address as applicable, with e-mail copy to the responsible Category Manager at Group Procurement. Such notice shall be deemed given on the date of receipt, or refusal of delivery, by the receiving Party.
30.2. A Party may change the address to which future notices under this Master Agreement are to be delivered to such Party by giving notice to the other Party in accordance with this section.
31. Transfer of Rights and Obligations
31.1. Neither Party may assign its rights or obligations under this Master Agreement without the prior written approval of the other Party. Buyer shall, however, have the right to assign the rights and obligations under this Master Agreement without Supplier’s consent to its Affiliate or legal successor on provision of written notice of such assignment to Supplier.
32. Changes
32.1. Except for changes to the Telia Company Supplier Code and/or to Security Directives, which are made as set out in such documents, changes to this Master Agreement shall be made in writing and shall be duly signed by the authorised representatives of both Parties.
33. Waiver
33.1. No failure or delay on the part of Buyer or Supplier in exercising any right or remedy under this Master Agreement, or in enforcing its terms and conditions, shall operate as a waiver; nor will any single or partial exercise of any such right or remedy preclude any other further exercise thereof or of any other right or remedy. No provision of this Master Agreement may be waived except in writing signed by the Party granting such waiver.
34. Severability
34.1. If any term in an Agreement is held invalid or unenforceable for any reason, the remainder of that term and the Agreement will continue in full force and effect.
35. Entire Agreement
35.1. This Master Agreement constitute the full and entire understanding and agreement between the Parties with regard to the subject hereof and replaces and supersedes all prior oral or written communications or understandings.
36. Applicable Law
36.1. This Master Agreement shall be governed and construed in accordance with Swedish law.
37. Disputes
37.1. Any dispute, controversy or claim arising out of this Master Agreement or any Delivery Contracts concluded under the Master Agreement shall be finally settled by arbitration pursuant to the rules of the Arbitration Institute of the Stockholm Chamber of Commerce (the “SCC Institute”). The place of arbitration shall be Stockholm, Sweden.
37.2. The Rules of the Arbitration Institute of the Stockholm Chamber of Commerce shall apply, unless the Parties agree that the Rules for Expedited Arbitrations of the Arbitration Institute of the Stockholm Chamber of Commerce shall apply. The SCC Institute shall also decide whether the arbitral tribunal shall be composed of one or three arbitrators.
37.3. The fact that a dispute is delivered to arbitration does not entitle Supplier to interrupt on-going deliveries not
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directly related to the dispute. It does not either entitle Buyer to keep back payment exceeding the amount directly under arbitration inclusive the interest fee thereof.
38. Surviving Clauses
38.1. The Parties rights and obligations under sections 18 "Intellectual Property Right", 19 "IPR Indemnity", 20 "Liability", 23 "Confidentiality", 35 "Applicable Law", and 36 "Disputes" shall survive the expiration, termination or cancellation of this Master Agreement.
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