1. APPLICABILITY. Unless otherwise expressly agreed between the Parties in writing, these GTC shall apply to all legal relationships under which VECTOR shall offer and provide Services. VECTOR does not agree to the application of any general conditions and clauses used or specified by the Client in his documents, unless VECTOR expressly agrees for such different conditions or clauses in writing.
2. DEFINITIONS. For the purpose of these GTC, unless the context shows otherwise, any words and expressions which have been used herein are defined terms to which the following meaning is assigned: Acceptance Criteria - means a criteria described in the SoW, PO, Offer, their attachment or any other documentation agreed by the Parties based on which Deliverables shall be accepted; Acknowledgment - means written acknowledgment of PO by VECTOR confirming conclusion of the Agreement; Affiliate – means, with respect to a Party at a given time, an entity that then is directly or indirectly controlled by, is under common control with, or controls that Party, and here “control” means an ownership, voting or similar interest representing fifty percent (50%) or more of the total interests in that entity; Agreement - a formal
basis for the provision of Services, consisting of the Offer, PO and
Acknowledgments or SoW, GTC, along with their attachments/schedules and their
changes made in accordance with clause 4 hereof and any other documentation
agreed between the Parties in writing as defining manner of performing Services; Authorized Representative (AR) - means a person entitled to represent the Party with regard to any statement related to a conclusion, material amendments or termination of the Agreement; Client - means an entity that concluded the Agreement with VECTOR; Client’s Input - means any and all information, instructions and documentation, including answers for VECTOR’s questions asked during performing Services, as well as product that is subject of Services (if applicable), any other things (for example testing environment) which need to be provided by the Client to VECTOR, necessary for the proper performance of Services, indicated in the Agreement; Deliverable - means a thing agreed to be provided as a result of accomplishing of the Milestone, including but not limited to: documentation, Product prototype, etc.; Existing IPR - means all Intellectual Property Rights, owned by the Party at the time of the conclusion of the Agreement; Future IPR - means all Intellectual Property Rights, created by the Party after the conclusion of the Agreement; GTC - this document along with its attachments; Intellectual Property Rights (IPR) - means all patents, trademarks, service marks or business names, registered designs, copyrights, design rights, utility models, topography rights, applications to register any of the aforementioned rights, trade secrets, know-how and rights of confidence and any other intellectual or industrial property rights of any nature whatsoever in any part of the world; In writing/written – means the following forms: (1) paper document with original signatures of AR; (2) scan of document refer to in point (1) above sent via e-mail; (3) e-mail send by AR or PM designated with the use of form (1) or (2) above; Milestone - means a set of requirements that need to be met (including list of Deliverables to be provided) to accept a certain stage of performing of Services; Offer - means a proposal of rendering the Services by VECTOR to a potential Client; Party - shall mean VECTOR or Client and Parties shall mean VECTOR and Client jointly; PRD - means Product Requirement Document which comprises functional and technical features of the Product; Product - means a final effect of performing Services defined in the SoW or accepted PO, including hardware or software which the Client may separately order to be manufactured with the use of Deliverables; Project Manager (PM) - means a person entitled to represent the Party with regard to any statement related to the execution of the Agreement and approval of any changes to the Agreement related to technical/engineering issues related to subject of Services or time schedule adjustments which do not cause change in the Remuneration exceeding 20% of what has been initially agreed or estimated by the Parties; PM is not entitled to terminate or cancel the agreement or amend any of its provision not related to issues mentioned in the precedence sentence; Purchase Order (PO) - means a Client’s offer for purchasing of Services executed with reference to VECTOR’s Offer; Remuneration - means remuneration payable by the Client to VECTOR for performing Services agreed in SoW or accepted PO; Remuneration may take form of Fixed Remuneration - a fixed fee for the scope of Services or T&M Remuneration - a time & material remuneration payable for each day/hour of performing Services; Report - means a report prepared by VECTOR describing activities along with time spent on performing them during calendar month and any other cost incurred during performance of Services to be reimbursed by the Client to VECTOR; Services - mean any design services performed by VECTOR for the Client under the Agreement, which may comprise, but are not limited to: high level design of the Product, support in defining PRD, preparation of Product specification, Product BOM, Product prototype, etc.; precise scope of Services shall be described in the Offer and the SoW or accepted PO; SoW (statement of work) - means a written agreement between the Parties containing a detailed description of Services and the manner of its performance; Project Schedule - means a schedule with: (1) Milestones description, (2) dates expected for reaching of a particular Milestone and for providing Client’s Input (3) remuneration for reaching of each Milestone - in case of the Fixed Remuneration; In case of T&M Remuneration dates expected for reaching of a particular Milestone are estimation only; VECTOR - means VECTOR TECHNOLOGIES S.A. duly incorporated under the laws of Poland, with its principal place of business in Gdynia (postal code: 81-577), 6 Krzemowa Street, entered in the National Court Register (Register of Entrepreneurs) kept by the District Court Gdańsk-Północ in Gdańsk, VIII Commercial Division of the National Court Register, KRS no. 0000591577, NIP (tax identification number) no. PL9581671449, REGON no. 363241538, BDO no. 000008728, share capital at 5.050.000 zł (Polish zloty) or any of its Affiliates who is indicated as contracting entity in the Offer and SOW or PO/Acknowledgment respectively.
3. CONCLUSION OF THE AGREEMENT. Agreement is concluded only when the SoW is executed by the Parties in writing or Acknowledgment is executed by VECTOR in writing and delivered to Client. In case of discrepancies between the content of the SoW or PO along with Acknowledgment and GTC, provisions of the former shall prevail.
4. CHANGES TO THE AGREEMENT. Each Party may request change to the Agreement. Any amendment to the Agreement is binding only if it is accepted in writing by AR or PM (within the scope of their powers as defined in GTC).
5. DUTIES OF THE CLIENT. The Client is under a duty to provide VECTOR with Client’s Input, in accordance with Project Schedule and immediately upon VECTOR’s request. Client is responsible for any errors or omission in information delivered as Client’s Input or its late delivery, in particular for any postponement of dates envisaged in Project Schedule and is liable for any costs caused by delay in performance of duties hereunder, including payment of Remuneration for any demurrage caused on VECTOR’s side. Client represents that subject of Services is not dual-use product within the meaning of Regulation (EC) No 428/2009 or any other applicable laws.
6. REPORTING OF SERVICES. If T&M Remuneration is agreed for Services VECTOR shall provide Client with the Report within 7 days following the end of each calendar month or following reaching each Milestone, whichever is earlier. If Fixed Remuneration is agreed for Services VECTOR shall inform the Client about progress of works upon Client’s request or upon reaching each Milestone.
7. ACCEPTANCE OF SERVICES. If Fixed Remuneration is agreed for Services Client shall accept Services immediately after the notification from VECTOR about completion of each Milestone and making available for inspection Deliverables created within each Milestone. Client has the right to inspect compliance of Deliverables with Acceptance Criteria within 7 (seven) days following receiving access to the Deliverables. Services shall be deemed accepted if the Deliverables are not rejected or any incompliance with Acceptance Criteria is not notified to VECTOR within the above stated period. If T&M Remuneration is agreed for Services, failure by the Client to object to Report within 7 days following receiving of the Report shall be deemed to be acceptance of the Report. Should there be any incompliance discovered VECTOR upon notification shall remove any such in compliance within the time necessary to remove it, depending on the nature of incompliance. Upon occurrence of the acceptance VECTOR shall be entitled to issue invoice covering accepted Services.
8. REMUNERATION. For rendering Services VECTOR shall be entitled to T&M Remuneration or Fixed Remuneration. Fixed Remuneration shall be payable in parts after acceptance of each Milestone in accordance with the Project Schedule, unless otherwise agreed in writing. Remuneration indicated in VECTOR’s Offer before its acceptance by the Client shall be binding for 30 days (unless otherwise agreed in writing) and it does not include charges, taxes (including VAT where applicable), customs duties, and other civil and legal payments related to the provision of Services, which will be added to the remuneration at the time of issuance of an invoice, nor additional costs related to the activities undertaken by VECTOR on the request of the Client which do not fall within the scope of the contracted Services. Remuneration may be adjusted by VECTOR if after signing SoW or Acknowledgment: (1) Client requests any changes to the Services; (2) upon occurrence of changes in the law that will influence the costs of the Services, like additional taxes, fees, etc. Upon occurrence of additional work or costs not envisaged in the initial Agreement VECTOR shall send to the Client expected list of such work and costs for Client’s acceptance. Failure to reject additional work or cost within 3 days shall be deemed to be acceptance of such additional work and costs by Client.
9. PAYMENT TERMS. Invoice for Services shall be issued after the acceptance of Services in accordance with clause 7. Invoice shall be payable within 14 days following its issuance, unless otherwise agreed in writing. Client accepts electronic invoices. No payment shall be deemed to have been received until VECTOR has received cleared funds. Any payments made by the Client shall be made without any set off or counterclaim. No payment shall be made with split-payment formula, unless it is required by the law. If payment is late, VECTOR may claim the statutory interest for late payment in commercial transactions in Poland. VECTOR is entitled to deduct from payment any withholding tax required by mandatory provisions of the law, if Client does not deliver to VECTOR on time a tax residence certificate releasing VECTOR from obligation to deduct withholding tax and is entitled to set off any amounts Client may be due to VECTOR.
10. LIMITED WARRANTY FOR SERVICES. VECTOR warrants that the Services shall be rendered in compliance with SOW or accepted PO and that any Deliverable to be produced as a result of execution of each Milestone shall be compliant with all previously accepted Deliverables produced as a result of execution of previous Milestones which determine the scope or features of subsequent Deliverables, without prejudice to any changes made to such Deliverables after their acceptance approved in accordance with the Agreement. Any other warranties either statutory, by operation of law, express or implied, including, without limitation, any implied warranty of merchantability, fitness for a particular purpose, non-infringement, title and any warranties arising out of usage or trade are hereby excluded. VECTOR does not guarantee nor takes any responsibility for any errors or omissions in information included in the Client’s Input (initial or its subsequent amendments by Client) which is Client’s sole responsibility. Any Deliverable accepted by the Client shall be deemed to be performed in compliance with the Agreement and shall release VECTOR from any liability for errors or mistakes that may be discovered after its acceptance.
11. CONFIDENTIAL INFORMATION. The Parties acknowledge that they and their respective employees, nominees, adviser, agents, Affiliates or other representatives (collectively: “Representatives”) will have access to and will be entrusted with detailed confidential information and trade secrets relating to their present and contemplated operations, included in particular in documentation (collectively: “Confidential Information”). With regard to information provided by Client only those expressly marked as “confidential” shall be regarded as “Confidential Information” hereunder. For purposes of the Agreement, “Confidential Information” includes also the existence and any term of the Agreement, the negotiations leading up to the Agreement or the transactions or arrangements contemplated or referred to herein. The Parties undertake to use Confidential Information only for the purpose of executing their rights and duties under the Agreement and disclose it only to Representatives involved in the execution of the Agreement who are subject to confidentiality duty on conditions not worse than regulated herein and to entities authorised by law. Confidential Information does not comprise information that is or shall become available publicly. VECTOR is entitled to keep a copy of Confidential Information for its record in accordance with its internal procedures. Confidentiality duty expires 6 years after termination or full execution of the Agreement, unless longer period is required by provisions of the law. Regardless of previous provisions, the Client agrees to refer by VECTOR and its Affiliates on their website and its marketing materials to the fact and general scope of the cooperation of the Parties covered by the Agreement. To this end, the Client permits VECTOR and its Affiliates to use Client’s name, trademark or logo, unless Client expressly refuses its consent for such use.
12. INTELLECTUAL PROPERTY RIGHTS. Each Party shall retain ownership of Existing IPR and Future IPR related to development of technology provided by that Party during the execution of Services. Future IPR related do Deliverables shall be transferred to the Client to maximum extent allowed by the applicable law, without prejudice to VECTOR’s Future IPR. By handing over documentation or information comprising IPR the Parties grant to each other a non-exclusive, non-assignable, non-transferable license to use the IPR and documentation to the extent necessary to perform rights and duties under the Agreement. The Parties agree (except to the extent necessary to perform the Agreement) not to copy, adapt, reverse engineer, decompile, disassemble, modify or create derivative works of any IPRs being property of the other Party. The Client hereby confirms that he is a proprietary owner of all IPRs included in Client’s Input, and that delivery of those information does not infringe any third party IPRs. Nothing in this clause prohibits VECTOR to use experience, knowledge and general know-how, gained during execution of the Services in VECTOR’s business activity, including algorithms.
13. THIRD PARTY SOFTWARE. Some Deliverables VECTOR provides to the Client may contain Third-Party Software (a list shall be provided upon execution of the SoW or Acknowledgment or during Milestones Acceptance), including but not limited to “open source” software. Use of the Third-Party Software and its source code may be governed by separate copyright notices and license provisions, which may be found or identified in the documentation or on the media delivered with the software; those separate notices and provisions are incorporated by reference into the license. The Client shall not modify or combine the Software and/or any Third-Party Software in any manner that could cause the Software or any modifications to it to become subject to the terms of any license that applies to Third-Party Software. All Third-Party Software is bundled with the Product and licensed for use with the Product only.
14. PERSONAL DATA PROTECTION. VECTOR is a controller (hereinafter "Controller") within the meaning of art. Article 4 (7) of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of individuals with regard to the processing of personal data and on the free movement of such data and repealing Directive 95/46/EC (General Data Protection Regulation) (text with EEA relevance) (OJ L 119, 4.5.2016, hereinafter "GDPR") of Client’s personal data, persons referred to in the Agreement as persons representing the Client, contact person in connection with the performance of the Agreement, persons responsible for the performance of individual powers and obligations under the Agreement and other persons on the Client's side in connection with the Services provided, the personal data of which the Client communicated to the Controller. Client undertakes to fulfill on behalf of Controller the obligation to provide information to the persons, whose personal data has been communicated to the Controller in connection with the conclusion and execution of the Agreement. Scope of such information is included in the Information for data subject which constitutes attachment to this GTC.
15. INDEMNITY. A Party agrees to indemnify and hold harmless the other Party, its officers and directors, employees and its subcontractors and Affiliates and their respective successors and assigns and each other person, if any, who controls any thereof, against any direct: loss, liability, claim, damage and expense whatsoever (including, but not limited to, any and all expenses whatsoever reasonably incurred in investigating, preparing or defending against any litigation commenced or threatened or any claim whatsoever) arising out of infringement or violation of any patent, copyright or IPR of a third party provided by that Party, or direct damages caused by falsehood of any Party’s representation or warranty.
16. LIMITATION OF LIABILITY. Except for wilful misconduct VECTOR shall never be liable to the Client for any special, consequential, incidental, punitive, or indirect damages, any loss of profits or revenue arising from or relating to any breach of the Agreement, regardless of any notice of the possibility of such damages, whether such liability is based on contract, tort or otherwise. Aggregate liability of VECTOR arising out of or relating to the Agreement is limited to the payments made by the Client for rendering Services within 3 months prior to the month in which event being a source of Client’s claim occurred – in case of T&M Remuneration or 50% of Fix Remuneration – if the latter is agreed by the Parties.
17. FORCE MAJEURE. VECTOR shall not be liable for non-performance or improper performance of its duties and obligations arising out of the Agreement and any consequences thereof, including but not limited to any loss or damages suffered by the Client, if the non-performance or improper performance of obligations is the result of an event beyond the control of VECTOR, in particular concerning VECTOR, its subcontractors or third party providers (hereinafter "Force Majeure"). By the Force Majeure, the Parties understand in particular, but not exclusively, those that have a negative impact on the VECTOR’s ability to perform its obligations under the Agreement: war, terrorist activities, fire, flood, explosion, riots or strikes, universally binding act or individual legal acts directed to VECTOR, factual or legal actions of public or local government administration authorities, suspension, delay or withdrawal of the permit regarding the possibility of exporting or importing or other license necessary to implement the subject of the Agreement. If Force Majeure event occurs VECTOR shall notify the Client without unreasonable delay: (1) that the Force Majeure event occurred, with the description of Force Majeure; (2) effect of Force Majeure event on VECTOR’s ability to perform its obligation under the Agreement. Occurrence of Force Majeure event results in (decided at sole discretion of VECTOR) suspension or cancelation (total or partial, depending on the effect of Force Majeure event) of VECTOR’s obligation under the Agreement or an extension of the delivery periods as long as Force Majeure event exists. Upon occurrence of Force Majeure event the Parties shall undertake commercially reasonable efforts to minimize effect of Force Majeure and they shall negotiate to adapt the Agreement to the circumstances caused by Force Majeure.
18. SUSPENSION OF SERVICES. VECTOR is entitled to refrain from performing any of its obligations towards the Client (including to refuse or withhold any further work): (1) if the Client does not provide VECTOR with Client’s Input – as long as the Client’s Input is unclear, insufficient or causes doubts regarding proper performance of Services and Client does not clarify all the doubts; (2) until a full due amount owed by the Client to VECTOR hereunder is settled by the Client (3) VECTOR has reliable evidence that the Client is unwilling or unable to pay for Services, in particular due to its difficult financial situation. In such cases VECTOR shall be released form any liability against Client for postponing any deadline agreed in Project Schedule.
19. TERMINATION. VECTOR is entitled to terminate the Agreement for cause immediately by giving notice to the Client if: (1) the Client has committed a material breach of the Agreement (including but not limited to the failure by the Client to make on time any due payments) and failed to cure such breach within 14 days after notice thereof, provided however that if such breach is not reasonably susceptible of being cured, no cure period shall be applicable; (2) the Client becomes bankrupt or insolvent or is the subject of proceedings or arrangements for liquidation or dissolution or ceases to carry on its business or becomes (in the opinion of VECTOR) unable to pay its debts as they become due; (3) any IPR included in Client’s Input is (or occurs to be) terminated, cancelled or revoked or infringes third party rights. Client is entitled to terminate the Agreement for convenience with 30 days termination period.
20. EFFECT OF TERMINATION FOR CAUSE. Upon termination of the Agreement for cause, all amounts then due and unpaid by the Client to VECTOR, as well as all other amounts accrued but not yet payable to VECTOR by the Client, shall forthwith become due and payable. After termination of the Agreement the Client is obliged, not later than within 30 days following receiving of cancellation/termination notice, to pay for any workand Services that have been performed and reimburse to VECTOR any and all costs that has been incurred for the proper execution of Services until the effective date of termination. Additionally VECTOR is also entitled to claim a payment of Remuneration calculated in accordance with the following formula: sum of remuneration expected to be paid by the Client for Services in accordance with Project Schedule within next 30 days following delivery of termination notice divided into 3, in no case lower than remuneration expected to be paid by the Client for Services in accordance with Project Schedule within next subsequent 10 days following delivery of termination notice.
21. EFFECT OF TERMINATION FOR CONVENIENCE. Upon termination of the Agreement for convenience by the Client apart from the entitlement to repayment of any and all costs in accordance with clause 20 hereof VECTOR is entitled to receive Remuneration for Services performed during termination period, which in any case shall not be lower than remuneration calculated in accordance with formula described in clause 20 hereof.
22. CLIENT’S ENTITLEMENT UPON TERMINATION. Client is entitled to receive the effect of Services rendered by VECTOR until the termination which shall be handed over by VECTOR on the basis of hand-over protocol executed in writing by the Parties.
23. SURVIVING PROVISIONS. Termination does not affect rights and obligations of the Parties and provisions of the Agreement which by their nature survive, including confidentiality, indemnity, intellectual property rights and personal data protection.
24. SUBCONTRACTORS. VECTOR may subcontract the provision of all or a part of the Services to a third party (subcontractor) without the need for a separate consent of the Client, providing that VECTOR will retain the responsibility in relation to the Client for non-performance or improper performance of the Agreement by such subcontractor.
25. ASSIGNMENT. The Agreement is binding upon and will benefit the Parties and their respective successors and permitted assigns. Transfer of all or any of its rights and obligations under the Agreement requires written consent of the other Party, without prejudice to VECTOR’s right to execute such transfer at any time to any VECTOR’s Affiliate at its sole discretion without the need for separate consent of the Client.
26. SEVERABILITY. If any provision of the Agreement or the application of it is held invalid, the invalidity shall not affect other provisions or applications of the Agreement which can be given effect without the invalid provisions or applications and to this end the provisions of the Agreement are declared to be severable.
27. GOVERNING LAW AND VENUE. The Agreement and any claim, controversy or dispute arising under or related to it shall be governed by and construed in accordance with the laws of the Republic of Poland, without regard to principles of conflicts of laws, particularly the rules on conflict of laws. The Parties to the Agreement hereby consent to the exclusive jurisdiction of any court competent jurisdiction located in Gdynia (Poland) or Gdańsk (Poland), in connection with any actions or proceedings arising directly or indirectly from the Agreement.
28. ENTIRE AGREEMENT. The Agreement, together with any schedules and exhibits (if any) attached thereto, constitutes the entire agreement and understanding of the Parties with respect to the subject hereof, and supersedes all prior oral or written agreements, contracts, understandings and communications of the Parties in respect of the subject matter of the Agreement. No amendment, modification or waiver of any of the terms of the Agreement shall be valid unless set forth in writing and duly signed by the Party against whom enforcement of such amendment, modification or waiver is sought. No delay or failure on the part of any Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any waiver on the part of any Party of any such right, power or privilege, be construed as a waiver of any other right, power or privilege. The rights and remedies provided in the Agreement are cumulative and are not exclusive of any rights or remedies that any Party may otherwise have at law or in equity.