Assignment and subcontracting

14.1 Supplier may not delegate or subcontract any Services or other obligation under this Agreement without the prior written consent of CUSTOMER.

14.2 Supplier may use subcontractors or any independent third party contractors to perform Services only upon the prior written approval of CUSTOMER. Supplier will be responsible to CUSTOMER for all Services performed by Supplier’s subcontractor(s) at any tier. Supplier will remain liable for compliance by the Subcontractor with all provisions of this Agreement.

CUSTOMER may assign this Agreement, in whole or in part, to any of its Affiliates or to any entity to which CUSTOMER may sell, transfer, convey, assign or lease all or substantially all of the assets or properties used in connection with this Agreement. Any other assignment or transfer of this Agreement, any Scope of Works or Schedules will require prior written approval of the other party. Such approval will not be unreasonably withheld or delayed.

Governing law; Dispute Resolution

15.1 This Agreement will be governed by and construed in accordance with the laws of The Netherlands, excluding the conflicts of law’s provisions thereof and excluding the United Nations Convention on Contracts for the International Sale of Goods.

Any controversy or claim arising out of or relating to the Agreement, its interpretation or enforcement, which cannot be settled amicably between the parties within a reasonable period of time, will be finally settled upon request of either party by arbitration as provided in this Article. If any dispute cannot be settled by good faith negotiation between the parties within thirty days, it will be finally settled upon request of either party by arbitration to be held in accordance with the Rules of Arbitration of the International Chamber of Commerce by one arbitrator appointed in accordance with such Rules, except as modified in this Article. In all cases, the arbitrator will be familiar with the general subject of dispute. The arbitration will be conducted in the English language, in London. Any ruling by the arbitrator will be final and binding on the parties and may be entered in any court having jurisdiction. The arbitrator will have no authority to modify or expand this Agreement or any of the provisions of this Agreement.

Nothing in this Agreement will preclude either party from seeking provisional remedies, including but not limited to temporary restraining orders and preliminary injunctions, from any court of competent jurisdiction, in order to protect its rights pending arbitration.

LIMITATION OF LIABILITY

IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY FOR ANY INCIDENTAL, SPECIAL, STATUTORY, INDIRECT OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS OR REVENUE,. THE TOTAL AGGREGATE LIABILITY OF EITHER PARTY FOR ALL CLAIMS ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT WILL NOT EXCEED AN AMOUNT EQUAL TO THE TOTAL AMOUNT OF ALL FEES PAID OR PAYABLE UNDER THE AGREEMENT IN THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE EVENT GIVING RISE TO THE CLAIM, BUT IN NO EVENT LESS THAN 1.000.000 USD (ONE MILLION UNITED STATES DOLLARS). THE LIMITATIONS OF LIABILITY IN THIS SECTION 16 WILL APPLY TO ANY DAMAGES, HOWEVER CAUSED, AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), OR OTHERWISE. HOWEVER, THEY WILL NOT APPLY IN CASES OF WILLFUL MISCONDUCT OR PERSONAL INJURY. THE LIMITATIONS OF LIABILITY IN THIS SECTION 16 ALSO WILL APPLY TO ANY LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES, AGENTS AND SUPPLIERS. THE LIMITATIONS OF AGGREGATE LIABILITY WILL NOT APPLY TO CONTRACTUAL INDEMNIFICATION OBLIGATIONS PROVIDED IN THE AGREEMENT.

General

17.1 All notices required or allowed to be given under this Agreement will be in writing, sent by registered mail or by international courier or facsimile (with receipt confirmed), and will be deemed to be given when actually received or refused. Notices will be addressed to the parties as follows, or to such other address designated by either party in writing to the other party:

Although CUSTOMER Affiliates are permitted to place Orders under this Agreement, CUSTOMER and its various Affiliates will not be jointly and severally liable for any damage arising out of any breach of this Agreement by CUSTOMER or such Affiliate, as the case may be.

Unless otherwise agreed in the Schedule, Supplier will not directly approach any CUSTOMER customer for which Services are performed with the intent of securing work similar to the Services performed under a Scope of Work, nor will Supplier directly accept such work from such CUSTOMER customer without first obtaining prior express written permission from CUSTOMER. This Article will be effective during the term of this Agreement and for twelve (12) months after expiry or termination of that Scope of Work.

Unless otherwise agreed in the Schedule, during the term of this Agreement and for twelve (12) months after expiry or termination of a Scope of Work, Supplier will not directly approach CUSTOMER customers for which Services are performed under that Scope of Work with the intent of providing products generally available from CUSTOMER, nor will Supplier provide such products, either directly or indirectly, to such CUSTOMER customer.

17.5 Either party desiring to issue a news release, public announcement, advertisement, or other form of publicity concerning this Agreement first will obtain the prior written approval of the other party, which may be withheld in the other party’s sole discretion.

17.6 The relationship of the parties under this Agreement will be, and at all times will remain, one of independent contractors, and not that of franchisor and franchisee, joint ventures, or principal and agent. Neither party will have any authority to assume or create obligations on the other’s behalf. And neither party will take any action that has the effect of creating the appearance of its having such authority. All persons furnished by Supplier will be considered solely Supplier’s employees or agents, and Supplier will be responsible for payment of all unemployment, social security and other payroll taxes, including contributions when required by law.

No failure to exercise and no delay or partial exercise of a right or power conferred upon a party under the terms of this Agreement will operate as a waiver of such right or power.

17.8 The Attachments to this Framework Agreement are:

As supporting documents of the Frame Agreement you will find the following attachments A to D as text and E to H as files, they have to be printed and be mandatory attached to the PDF Frame Agreement on signature:

Attachment A: “Scope of Work Template between CUSTOMER and Supplier” (text)
Attachment B: “Non-Disclosure Agreement” (text)
Attachment C: “Agreement between Supplier Employee and CUSTOMER regarding Intellectual Property” (text)
Attachment D: “Acknowledgement of Temporary Work Assignment” Text

Attachment E: “Supplier (Direct) Code of Ethics & Business Conduct”

Attachment F: “Change Management Process between CUSTOMER & Supplier“

Attachment G: “Daily Operational Process for Service delivery between CUSTOMER & Supplier”

Attachment H: “Additional supporting definitions”

Attachment I: “Rules of Engagement / Training / Reporting / Performance / Service Level credits

Attachment I: Template of Country Participation Agreement [UNDER DRAFTING]

If any paragraph or clause in this Agreement will be held to be invalid or unenforceable in any jurisdiction in which this Agreement is being performed, then the meaning of such paragraph or clause will be construed so as to render it enforceable, to the extent feasible; and if no feasible interpretation would save such paragraph or clause, it will be severed from this Agreement and the remainder will remain in full force and effect.

The terms and conditions contained in this Agreement supersede all prior oral or written understandings between the parties and will constitute the entire agreement between them concerning the subject matter of this Agreement. A writing signed by both parties may only amend this Agreement.

Date: 2015-12-24; view: 995