Scope and Construction; change control

FRAME AGREEMENT FOR SUPPLY OF SUPPORT SERVICES, SOFTWARE DEVELOPMENT, INTEGRATION INSTALLATION, IMPLEMENTATION, PROJECT MANAGEMENT AND CONSULTANCY SERVICES

This Agreement is made as of xx (the "Effective Date") between:

CUSTOMER xx,with an office at XXXX, ("CUSTOMER"); and

Supplier xx, with an office at XXXX ("Supplier").

Supplier and CUSTOMER desire to implement terms and conditions pursuant to which CUSTOMER and CUSTOMER’s Affiliates may purchase from Supplier or Supplier’s Affiliates approved by CUSTOMER from time to time certain services relating to the installation and support services of CUSTOMER and/or third party products and / or certain services relating to the customisation and integration of CUSTOMER and/or third party products, such as custom software development, project management and other consultancy services, during the term of this Agreement.

Therefore, the parties agree as follows:

Definitions

Capitalised terms not defined elsewhere in this Agreement will have the meanings specified below:

1.1 "Affiliate" means, with respect to any Party, any person or entity that is under common control with, controls, or is controlled by, that Party or affiliated with that Party.

1.2 "Agreement" means this Frame Agreement for Supply of support services software development, integration, installation, implementation, project management and consultancy services, together with all Attachments hereto, as expanded and modified by the applicable Schedules and their attachments, Scope of Works, and all Appendixes.

1.3 "CUSTOMER Intellectual Property" means Intellectual Property conceived, created, developed, reduced to practice or acquired by CUSTOMER: (a) prior to the effective date of this Agreement; or (b) during the term of this Agreement independent of any Services performed hereunder.

1.4 "Confidential Information" means all Licensed Materials, the terms of this Agreement and all information designated as confidential in writing by either Supplier or CUSTOMER (the "disclosing party") to the other party (the "receiving party"), whether by letter or by the use of an appropriate stamp or legend, prior to or at the time any such information is disclosed. Information which is orally or visually disclosed without an appropriate confidential designation will be considered Confidential Information if the disclosing party so indicates at the time of disclosure and within thirty (30) days after disclosure, delivers to the receiving party a written document describing the Confidential Information and referencing the place and date of the disclosure. Confidential Information includes without limitation Deliverables, Supplier Intellectual Property, CUSTOMER Intellectual Property or Intellectual Property of any third party provided by CUSTOMER to Supplier under or in contemplation of this Agreement, either directly by CUSTOMER or by a third party with whom Supplier interacts as contemplated in the Services.

1.5 "Defect"means a reproducible error condition that causes the Deliverable to fail to operate in compliance with the Specifications and causes an adverse impact on the use of the Deliverable.

1.6 "Deliverable" means any tangible item provided to CUSTOMER or any End User arising out of the performance of Services as set out under this Agreement, including without limitation all Software, Related Documentation, Source Materials, Developed Intellectual Property and any media containing the same.

1.7 "Developed Intellectual Property" means the Intellectual Property conceived, created, developed, reduced to practice or acquired by Supplier (independently or in combination with CUSTOMER) in connection with the performance by Supplier of the Services.

1.8 "End User" means any entity authorised by CUSTOMER to use the Services or Deliverables.

1.9 "Intellectual Property" means intangible property protected under the patent, copyright, mask work, trade secret, trademark and similar laws of any state or national government. Intellectual Property includes all rights under any registrations or certificates with respect to such intangible property issued by any governmental authority, as well as all rights under any pending applications for registration and any applications for registration that may be filed after the date of this Agreement.

1.10 "Order" means an order for specified Services and Deliverables, which is issued by CUSTOMER or an CUSTOMER Affiliate and delivered to the Supplier.

1.11 "Premises" means any premises at which the Services are to be provided and/or which at any relevant time are owned or controlled by CUSTOMER, an CUSTOMER Affiliate or an End User.

1.12 "Schedule" is defined in Article 2.3.

1.13 "Related Documentation" means all materials in printed, written or electronic form used to describe the use and operation of a Deliverable, such as, but not limited to, flow charts, logic diagrams and listings, program descriptions and specifications.

1.14 "Services" means certain services relating to the customisation and integration of CUSTOMER and/or third party products, such as custom software development, project management and other support and consultancy services to be performed by Supplier under this Agreement. Services may be more fully described in an applicable Schedule or an Order.

1.15 "Software" means relating to the customisation and integration of CUSTOMER and/or third party products, such as custom software development, project management and other consultancy services, computer programs furnished by Supplier.

1.16 "Source Materials" means information consisting of all source programs, technical documentation, software compiling tools and other information required for maintenance, modification or correction of Software and Related Documentation.

1.17 "Specifications" means the functionality and performance specifications for Deliverables described in the applicable Scope of Work or, if no such specifications or Scope of Work are provided, as otherwise agreed by the Parties.

1.18 "Scope of Work" or "SOW” means the description of Services to be performed by Supplier with respect to a particular type of Service or to a particular project as well as associated Supported Products, pricing and milestone dates, if any, as the same may be amended from time to time by written agreement between Supplier and CUSTOMER.

1.19 "Eligible Products" or "Supported Products" means all CUSTOMER systems and peripherals including any other third party products currently maintained by and under contract with CUSTOMER at any given End User Site listed in the Scope of Work.

1.20 "Supplier Intellectual Property" means Intellectual Property conceived, developed, reduced to practice or acquired by Supplier: (a) prior to the effective date of this Agreement; or (b) during the term of this Agreement independent of any Services performed hereunder.

1.21 "Territory" means Ukraine and such other country in EMEA as may be agreed by the Parties in writing from time to time.

Scope and Construction; change control

2.1 During the term of this Agreement, CUSTOMER and its Affiliates may issue Orders to Supplier or Supplier’s Affiliates for Services and Deliverables. CUSTOMER or CUSTOMER Affiliate that issues an Order will be referred to as "CUSTOMER". Supplier or the Supplier’s Affiliate that accepts the applicable Order will be referred to as "Supplier". Any particular Order or Scope of Work issued under this Agreement will create a contractual relationship in respect of the Services or Deliverables specified only between the company that issued the Order or agreed the Scope of Work and the company who accepted the Order or agreed the SOW. Supplier shall look only to that company for performance of any obligations under this Agreement in respect of those Services and Deliverables. CUSTOMER and its Affiliates will not have joint and several liabilities with respect to this Agreement or any Scope of Work or Order.

Orders are subject to acceptance by Supplier. All Orders issued by CUSTOMER in accordance with an offer from Supplier will be deemed accepted upon receipt of the Order by Supplier. With respect to all other Orders, Supplier will inform CUSTOMER of its acceptance or rejection of an Order within two (2) business days from receipt of the Order. If no information has been received by CUSTOMER within that time period, the Order will be deemed accepted by Supplier. Supplier will not unreasonably reject Orders and will provide written or electronic explanation in case of any Order rejection. Supplier will perform the Services and deliver Deliverables in accordance with the applicable Scope of Work or Order, as the case may be, and the terms and conditions of this Agreement. The terms and conditions of this Agreement will apply to all Orders and SOWs, and the provision of all Deliverables and Services to CUSTOMER by Supplier.

2.3 Where local law requires that a separate agreement is entered into between CUSTOMER Affiliate and Supplier Affiliate in a given country, then those parties may execute a Country Participation Agreement ("CPA") substantially in the form attached as Attachment J. Each CPA will incorporate by reference this Agreement and will indicate any changes that the parties agree to make based on local law, local operational practice, or other concerns. Each CPA will be deemed a separate contract between the parties who sign it. Orders placed between companies who have executed a CPA must refer to the appropriate CPA. Should there be a conflict between the terms of this Agreement (including its Attachments) and a CPA, a CPA will prevail.

Nothing in this Agreement obliges CUSTOMER or any third party to purchase any quantity of any Services from Supplier or any other person or entity. Nothing in this Agreement will be construed to grant Supplier an exclusive right or privilege to supply or provide to CUSTOMER any Services or provide Services in any particular geographic territory or market segment. CUSTOMER may contract with other suppliers for the supply of comparable services without any obligation to notify Supplier about the existence or the conditions of such contracts. CUSTOMER has the sole discretion to determine the extent to which CUSTOMER will or will not market, advertise, promote or support the Services or identify the Services to any third party as services provided by Supplier.

2.5 In addition to the placement and acceptance of Orders subject to this Agreement, Supplier and CUSTOMER may agree from time to time to additional or modified terms with respect to particular Services. Such additional or modified terms will be indicated in a Schedule to this Agreement signed by authorised representatives of Supplier and CUSTOMER in the form of Attachment A (each, a "Schedule"). The effective date of a Schedule will be indicated on the Schedule. Where no date is indicated on the Schedule, the effective date will be the date that both Supplier and CUSTOMER have executed the Schedule.

2.6 In the event of a conflict, between or among the provisions of this Agreement, a particular Schedule and/or a Scope of Work, priority will be given in the following order unless expressly stated to the contrary: (a) the applicable Schedule / Scope of Work; (b) this Frame Agreement; (c) accepted Order.

Either party may request changes in a Scope of Work within its general scope following any process described in Attachment F. The receiving party will respond promptly to the requested change identifying the impact on schedules and pricing. If the parties agree to the change, it will be authorised by a written Order between Supplier and CUSTOMER and will be effective as of the date a change control approval document is signed by both parties. However, the cost of changes in scope or schedule necessitated by failure of a party to perform its responsibilities according to the project schedule in the Scope of Work will be borne by the failing party.

Supplier and CUSTOMER agree to the rules of engagement set out in Attachment G. Supplier and CUSTOMER will exchange their contact details for communications purpose per Attachment G.

2.9 Training Process for Existing CUSTOMER Products: Supplier and CUSTOMER agree to the training process as set out in Attachment I.

2.10 Reporting: Supplier will provide Reports as outlined in Attachment I.

Date: 2015-12-24; view: 1179