The provision of the Services will commence on the Service Commencement Date and, unless terminated earlier in accordance with the terms of the Agreement, shall endure for the Initial Term. After the Initial Term (or any renewed Term), this Agreement continues for a further Term of 12 months, unless either Party gives the other Party written notice not to renew this Agreement at least 90 days prior to the end of the Initial Term (or the renewed Term), as the case may be.
The Service Charges payable for a renewed Term must be the same amount as was payable immediately before expiry of the prior Term, unless varied pursuant to section Variation of the Service Charges. For the avoidance of doubt, the terms that shall apply following any extension may differ from those terms which applied immediately prior to the extension and will be subject to any Service Charges as set out in Part A. Agreement Details.
If a Party breaches any provision of this Agreement, the other Party may:
Either Party may terminate this Agreement immediately if the other Party:
If SmarTech terminates this Agreement, Client must immediately pay to SmarTech the total of all amounts then due to SmarTech pursuant to this Agreement.
If SmarTech terminates this Agreement on any of the grounds set out in section Terms for Termination Client is not entitled to a refund or adjustment of any applicable Transition Fee or of any Service Charges paid to SmarTech.
If Client terminates this Agreement on any of the grounds set out in section Terms for Termination, Client is entitled to a pro-rata refund of any part of the Service Charges it has paid for Services to be supplied after the date of termination.
If Client terminates this Agreement before the end of the initial Term (or any renewed Term), Client will attract a termination payment of the minimum monthly Service Charges for the remaining months of the Agreement.
Termination of this Agreement (for whatever cause) does not affect any right or cause of action which has accrued to the Party which terminates this Agreement at or prior to the date of termination.
During the Term SmarTech must supply the Services to Client and Client must pay the Service Charges and any Additional Charges.
SmarTech will, at its discretion, have the right to make changes to a Service, provided that any such change will not materially alter the Service’s features or functionality, and will not result in a material degradation to the Service Level Targets.
SmarTech may make adjustments or add enhancements to the SmarTech Management System during the Term. SmarTech will provide advance notice of any such changes, where possible.
The Client must:
The Client will indemnify and defend SmarTech against any and all claims, liabilities, losses, damages, costs, and expenses incurred by or asserted against SmarTech from any consequences of the Client’s failure to completely erase the information and data from such Configuration Item.
If Client fails to promptly comply with any of Client’s obligations set out in this Agreement, SmarTech may, in its absolute discretion, suspend performance of that part of the Services affected as a result of Client’s failure or refusal until Client has complied with its obligations.
If requested, Client must provide SmarTech with reasonable evidence that Client has adequate, published guidelines and procedures for Workplace Health and Safety purposes in respect of each Client Site, and that Client has satisfactory public liability insurance cover.
Unless otherwise agreed between the Parties, Client may not sell or resupply the Services to any Third-Party.
Where SmarTech requires Third-Party Material to be made available to it by Client in order to supply the Services, Client must, unless otherwise agreed, obtain at its own cost the necessary licence, consent, authorisation, permission or right of use from the relevant Third-Party owner or licensor.
Urgency and classification of all Security Incidents must be agreed by both SmarTech and Client.
SmarTech requires exclusive access to all Configuration Items within scope for the purposes of monitoring the Configuration Items and, where applicable, updating of the Configuration Items.
Client must notify SmarTech of availability and capacity requirement changes.
Configuration Item configuration file backup is limited to the Configuration Items compatible with the Configuration Item file backup Software or platform.
Client must ensure that any Client equipment, network, or systems connected to any SmarTech Equipment, network, or systems and/or used in receiving the Services is technically compatible, connected and used in accordance with any instructions and/or safety and security procedures applicable to the use of such Client equipment or as directed by SmarTech.
If any Client equipment, network, or systems do not comply with the requirements of this section, Client must advise SmarTech and upon notice from SmarTech, disconnect such Client equipment, network, or systems and where applicable direct SmarTech to do the same, the cost of which will be borne by Client.
SmarTech will not be liable for any failure to meet any Service Level Target or other obligations set out in this Agreement if the failure is caused by Client’s breach of its obligations under this section or otherwise.
SmarTech gives no warranty in respect of the interoperability between the SmarTech Equipment, network and/or systems and any Client equipment, network, or systems.
SmarTech must perform scheduled maintenance on the Services, including maintenance related to the Software and other equipment and materials used for providing the Services, during maintenance windows notified by Client.
SmarTech must notify Client in writing at least 3 (three) Business Days in advance of any scheduled maintenance, any related Service interruptions, and their anticipated durations.
In the case of Emergency Maintenance, SmarTech:
SmarTech will be relieved of its obligations under the applicable Service Level Agreement for the duration of the Emergency Maintenance and the Client expressly excludes SmarTech for any liability, loss and or damage suffered during an Emergency Maintenance period.
Where applicable, Client must configure a virtual private network (VPN) tunnel between the applicable Client data centers and a SmarTech data center.
SmarTech will not be liable for Service Level Target defaults resulting from one or more of the following events:
The Services are performed remotely and not at a Client Site. Client may request that SmarTech perform a Service at a Client Site, and SmarTech may, at its discretion, agree to do so. If agreed by SmarTech, such obligations will be performed at an Additional Charge, and invoiced in accordance with section Service Charges and Payment Terms.
SmarTech may at its sole discretion utilize resources temporarily or permanently located in other SmarTech locations for the delivery of the Services.
The Service Desk contact details, links, and pre-requisites (if applicable) are set out in Part A. Agreement Details.
The following Fees will be charged as one-off Service Charges:
The recurring Service Charges are as set out in Part A. Agreement Details. Where agreed changes are made to the Record of Entitlements, SmarTech must invoice the Service Charges for the adjustments pro rata to the end of the then current Term.
SmarTech will issue invoices for the Service Charges set out in in Part A. Agreement Details and must send each invoice to the address specified in Part A. Agreement Details or as Client may otherwise specify in writing. If applicable the invoice for the Transition Fee will be rendered at the commencement of the Term. If Client disputes an invoice in part, it may defer payment of only that disputed part pending resolution of the dispute.
SmarTech must issue invoices for any Additional Charges when it has done the relevant work, supplied the Services or incurred the expenses.
The Service Charges set out in Part A. Agreement Details shall become payable by Client from the Service Commencement Date. When the Service Commencement Date is delayed through the fault of Client, SmarTech shall be entitled to commence invoicing Client for the Service Charges with effect from 60 days after the Service Commencement Date.
Client must pay the Service Charges, any applicable Transition Fees, and any Additional Charges within 30 days after the date on which SmarTech’s invoice is rendered.
SmarTech may, by giving at least 30 days’ written notice of the variation to Client, vary the Service Charges:
If the Client and SmarTech fail to agree on the varied Service Charges within 30 days of SmarTech’s notice, either Party may terminate this Agreement by giving 30 days’ written notice to the other Party.
If the Client fails to pay any amounts payable to SmarTech by the due date, SmarTech may, on 7 (seven) days’ written notice, suspend supply of all or any part of the Service until the Client pays all overdue amounts.
If access to or replacement of a Configuration Item by SmarTech requires specialized equipment and/or additional resources to comply with legal or occupational health and safety requirements, the Client will incur an Additional Charge.
Out of scope services performed at a Client Site will attract an Additional Charge.
The Service Charges are exclusive of taxes, duties and charges imposed or levied in Poland in connection with the supply of the Services, and VAT. The Client is liable for any new or altered taxes, duties or charges imposed after the Service Commencement Date in respect of the supply of the Services.
During the Term, SmarTech must:
SmarTech warrants that it will provide the Services in a proper and professional manner and will ensure that the Services are performed by personnel who are suitably qualified to perform the Services.
The Client warrants that it has the appropriate licenses, rights and/or title to the Configuration Items that are the subject of this Agreement.
Each Party warrants that:
Other than as stated in this section of this Agreement, SmarTech disclaims all representations and warranties (whether express, implied, arising under statute or otherwise) with respect to the Services provided under this Agreement. This disclaimer includes any express or implied warranties of merchantability and fitness for a particular purpose and non-infringement of title or any Third-Party rights, to the extent permitted by Law.
This section will survive termination or expiry of this Agreement.
The Record of Entitlements will be subject to change on an ongoing basis as Configuration Items are changed, added, and removed in accordance with SmarTech processes.
At any point in time the Configuration Items under management will only be as specified in the SmarTech Management System.
A baseline list of Configuration Items is specified in the Record of Entitlements.
Amendments to this list will be captured and will undergo change control as part of Service Asset and Configuration Management.
SmarTech will provide an amended Record of Entitlements to Client, if requested.
The monthly Service Charges includes Service Units for the term of this Agreement to support Service Requests as defined in in Part A. Agreement Details. If Client exhausts the number of service units included in the pricing, Client may purchase additional Service Units.
With respect to the subsequent purchase of Service Units, Client shall be obliged to purchase a minimum number of 1 Service Unit.
If SmarTech is, in its reasonable opinion, unable to continue to effectively provide the Service for an End-of-Life Configuration Item, SmarTech may, by giving the Client at least 90 days’ prior written notice, remove the End-of-Life Configuration Item from the
Record of Entitlement. Upon removal, SmarTech must make a pro rata adjustment of the Service Charges.
SmarTech may subcontract parts of the Services to such persons as it, in its discretion, considers necessary to enable it to fulfil its obligations under this Agreement.
The Receiving Party acknowledges that the Confidential Information is confidential to the Disclosing Party and is not in the public domain.
The Receiving Party agrees to:
These confidentiality obligations will remain valid for a period of 5 (five) years after the expiry or termination of this Agreement.
These obligations do not apply to any Confidential Information that:
Each Party must use the same degree of care that it uses to protect its own Confidential Information of a similar nature and value, but in no event less than a reasonable standard of care.
In the event of a breach by the Receiving Party of any confidentiality obligation, the Receiving Party acknowledges that damages may be inadequate compensation and subject to the court’s discretion, the Disclosing Party may restrain, by an injunction or similar remedy, any conduct or threatened conduct which is or will constitute such a breach.
In the performance of this Agreement, Client may be required to transfer to SmarTech Personal Information relating to its staff, directors and officers, agents, subcontractors, independent contractors, or other individuals.
To the extent that any Personal Information is transferred to SmarTech by Client, SmarTech shall be allowed to Process Client’s Personal Information to perform the required Services. Such Processing shall adhere to the applicable data privacy legislation in the jurisdiction where the Processing occurs. In all circumstances Client will be deemed to be the Data Controller and SmarTech the Data Processor. Client warrants that the transfer of Client’s Personal Information to SmarTech as well as the Processing of such Client’s Personal Information by the latter shall comply with all applicable Laws and regulations on protection of Personal Information.
To the extent that the Processing of Client’s Personal Information by SmarTech is conducted in accordance with Client’s instructions or can be considered as customary usage for the performance of Services, Client shall defend and indemnify SmarTech from and against any and all claims, liabilities, losses, and reasonable expenses incurred by or asserted against SmarTech in connection with any Third-Party claim related to the Processing of Client’s Personal Information.
Each Party shall comply with the Anti-Bribery Laws including:
Without limitation to the above, neither Party shall make or receive any bribe as defined in the Anti-Bribery Laws, or other improper payment, or allow any such to be made or received on its behalf and will implement and maintain adequate procedures to ensure that such bribes or payments are not made or received directly or indirectly on its behalf.
All SmarTech Intellectual Property Rights including but not limited to such rights in the SmarTech Material shall remain the sole and exclusive property of SmarTech. To the extent it may become necessary do so, Client agrees to execute all documents which SmarTech may reasonably require to secure and maintain the Intellectual Property Rights in the SmarTech Material.
All Intellectual Property Rights in Client Material shall remain the sole and exclusive property of Client.
Solely for the Term of this Agreement, each Party hereby grants to the other a worldwide, non-exclusive, and non-transferable license to use the SmarTech Material or Client Material (whichever applicable), and only to the extent necessary for SmarTech to provide, and Client to use, the Services.
Client shall not, under any circumstances, copy, modify, decompile, reverse assemble, disassemble, or make any adaptation or derivative of, sell, resell, transfer, license, sub- license or distribute the SmarTech Material.
Other than in respect of its liability for death, personal injury, damage to tangible property, or claims for breach of Third-Party Intellectual Property Rights, SmarTech’s aggregate liability, whether arising from breach of agreement, negligence or any other tort, breach of warranty under and indemnity or statute, in equity or otherwise is limited to an amount equal to the annual Service Charges paid by Client at the date such liability is proven to have arisen.
If SmarTech admits a liability to Client for a claim for a breach of this Agreement and Client has elected not to, (or has no right to) terminate this Agreement on the grounds of the breach, SmarTech may, at its option, elect to apply the whole or part of any amount agreed to be paid to Client as the result of such breach as a credit to future Service Charges payable by Client.
SmarTech has no liability to Client for any incidental, indirect, special, or consequential loss or damage, or for loss of or corruption of data, loss of use, revenues, profits, goodwill, bargain, opportunities, or anticipated savings, whether arising from breach of agreement, negligence, or any other tort, in equity or under an indemnity, warranty or otherwise, whether or not SmarTech was aware of the possibility of such loss or damage.
To the fullest extent permitted by Law, the Parties agree to exclude all express or implied warranties, representations, statements, terms, and conditions relating to SmarTech or the provision of the Services under these terms, not expressly set out in these terms, are excluded from the agreement between the Parties.
SmarTech will not be liable for any failure or delay in providing the Services where such failure or delay is the direct or indirect result of any action by or the failure of Client to comply with this Agreement.
During the term of this Agreement and for 12 (twelve) months after termination by either Party of this Agreement, a Party must not employ or solicit for employment any person who is an employee of or contractor to the other Party who was involved during the most recent 6 (six) month period of this Agreement in the matters covered by this Agreement.
This section does not apply where:
Each Party acknowledges that the restriction specified in this section is in the circumstances reasonable and necessary to protect each Party’s legitimate interests.
Each of the Parties shall use their reasonable endeavors to co-operatively resolve a dispute.
If a dispute arises, the dispute shall be referred to SmarTech’s project manager and Client’s representative for resolution.
If the dispute is not resolved by SmarTech’s project manager and the Client liaison officer within 5 (five) Business Days of such a referral in accordance with section Discussions Between the Parties, the dispute shall be referred to a panel (“Panel”) for resolution. Each Party shall nominate a representative for the Panel within 5 (five) Business Days of the referral to the Panel in accordance with this section.
If the dispute is not resolved by the Panel within 10 (ten) Business Days of such referral, the Panel shall within 3 (three) Business Days refer the dispute for resolution to a Panel comprising the chief executive officer of each Party (or his or her nominee) and the members of the Panel (“Executive Panel”).
The Panel and the Executive Panel shall determine their own procedures for the resolution of the dispute.
Decisions of the Panel or the Executive Panel may only be made by unanimous agreement of the members of the Panel or the Executive Panel, as the case may be.
Any decision of the Panel or the Executive Panel shall be binding on the Parties.
Neither Party shall commence legal proceedings unless the Parties have undertaken the process set out in sections Application of Procedure, Discussions Between the Parties, Referral to a Panel/Executive Panel, and those processes have failed to resolve the dispute.
Prior to the resolution of a dispute, the Parties shall continue to perform their respective obligations to the extent that those obligations are not the subject matter of the dispute.
Nothing in this section of this Agreement shall prevent a Party from choosing to perform an obligation which is the subject matter of the dispute.
Nothing in this section of this Agreement prevents either Party from seeking urgent injunctive relief against the other Party at any time.
Without prejudice to any other rights or remedies it might have available at Law, or under this Agreement, SmarTech may suspend the provision of Services:
All applicable Service Charges in relation to the Services will continue to apply during any period of suspension in terms of section Suspension part (a).
SmarTech will not be liable for any loss or inconvenience suffered by Client as a result of any suspension in terms of section Suspension.
Terms or conditions attached to or forming a part of a purchase order that Client issues do not form part of this Agreement.
This Agreement is governed by the laws of the Republic of Poland.
This Agreement supersedes all prior agreements, arrangements and undertakings between the Parties and constitutes the entire agreement between the Parties relating to its subject matter.
No variation of this Agreement, including this section, is binding upon the Parties unless made in writing signed by an authorized representative of each of the Parties, unless provided otherwise in this Agreement. SmarTech’s written acceptance of a written request (including a request made by e-mail) by Client for a variation to the Record of Entitlements is binding on both Parties. Following an agreed variation, SmarTech must issue a revised Record of Entitlements.
Notices to or by a Party delivered in person are deemed to be given by the sender and received by the addressee when delivered to the addressee: if by post, 3 (three) Business Days from and including the date of postage; or if by facsimile, when successfully transmitted to the addressee provided that if transmission is on a day which is not a Business Day or is after 5.00 PM (addressee’s time), on the Next Business Day.
Any provision or the application of any provision of this Agreement, which is void, illegal or unenforceable in any jurisdiction does not affect the validity, legality, or enforceability of that provision in any other jurisdiction or of the remaining provisions in that or any other jurisdiction.
A waiver of a breach of this Agreement or of any right, power, authority, discretion, or remedy arising upon a breach of or default under this Agreement must be in writing and signed by the Party granting the waiver.
A Party may only assign this Agreement and any rights under this Agreement with the prior written consent of the other Party, provided that SmarTech may assign any of its rights or obligations under this Agreement to any SmarTech affiliate, without the prior written consent of Client.
Due to changes in technology and SmarTech’s desire to maintain the highest possible quality of the Services, it may be necessary to make adjustments or add enhancements to the SmarTech Management System during the Term. SmarTech will provide advance notice of any such changes, if possible. If the Scope of Service is necessarily improved or extended as a result of the enhancements, they will be offered to Client for the remainder of the then current Term at no additional cost, provided that SmarTech will expect that no claim is made for a reduction in the Service Charges for minor reductions in scope as a result of the enhancements.
Neither Party is liable to the other for the consequences of any delays or failures of its performance which are caused by a Force Majeure Event.
If any Force Majeure Event occurs in relation to either Party that affects or may affect the performance of any of its obligations under this Agreement, it shall forthwith notify the other Party as to the nature and extent of the circumstances in question. Neither Party shall be deemed to be in breach of this Agreement, or shall otherwise be liable to the other, by reason of any delay in performance, or the non-performance of any of its obligations under this Agreement to the extent that the delay or non-performance of that obligation is due to any Force Majeure Event of which it has notified the other Party and the time for performance shall be extended accordingly.
If the performance by either Party of any of its obligations under this Agreement is prevented or delayed by a Force Majeure Event for a continuous period in excess of 30 (thirty) days, the other Party shall be entitled to terminate this Agreement by giving written notice to the Party so affected, whereupon all money due up to the point of termination under this Agreement shall be paid immediately, and in particular Client shall pay to SmarTech all arrears of payment.
SmarTech will not be liable for any failure or delay in providing the Services, or any non-achievement of Service Level Targets, to the extent such failure or delay or non-achievement is the direct or indirect result of any act or omission by Client or the failure of Client to comply with any of its responsibilities and obligations under this Agreement.
SmarTech will not be liable for Service Level Target failures resulting from: