TERMS OF DELIVERY REGARDING SIMPLIFAI CONSULTANCY ASSISTANCE
Revision: 3rd of May 2021
1. GENERAL PROVISIONS
1.1 THE PARTIES
1.1.1 “Simplifai;” the limited company in the Simplifai group of companies having concluded the Agreement defined in Clause 1.2 with the Customer.
1.1.2 A company or any commercial entity other than a consumer regardless of incorporation that has concluded the Agreement defined in Clause 1.2 with Simplifai (“the Customer).
1.1.3 Simplifai and Customer and/or their Affiliates to be individually known as a “Party” and jointly as the “Parties.”
1.2 THE PARTIES’ AGREEMENT
The Parties’ Agreement consists of a separate document which is signed between the Parties (hereafter “the Main Terms”) and which defines the scope and main principles for delivery of the consultancy services to be delivered by Simplifai (the “Services”), as well as these Terms of Delivery, setting out the main principles for the Parties’ co-operation.
The Main Terms may be expressed in a separate document detailing the Parties’ obligations under the overall agreement or by a standardised Simplifai Order Form. These Terms of Delivery will automatically become part of the Agreement at the signature of the Main Terms. Oral agreements and/or modifications to the Main Terms and/or these Terms of Delivery are not valid unless confirmed according to the provisions in Clause 2.1.
1.3 SCOPE OF THE CONSULTANCY ASSISTANCE
Simplifai shall render professional assistance under the direction of the Customer, as described in the Main Terms and further outlined therein regarding the Parties’ mutual obligations regarding the performance of the Services.
Simplifai shall also, to the extent deemed desirable by the Customer, participate in other activities that form part of the Services.
The Services shall be performed according to the progress plan defined in the Main Terms. If no such progress plan is included in the Main Terms, the Parties shall agree on a progress plan defining specific deadlines for each Party’s performance of their obligations as soon as possible after signature of the Agreement.
1.5 THE REPRESENTATIVES OF THE PARTIES
The Representatives of the Parties shall be defined in the Main Terms. These Representatives will be empowered to receive notifications as outlined in these Terms of Delivery and e-mail sent to the Representative will constitute such notification.
2. CHANGES AND CANCELLATION
2.1 CHANGES SUBSEQUENT TO CONCLUSION OF THE AGREEMENT
Customer may decide to order additional work or changes to the Services defined in Clause 1.3. Simplifai is obliged to offer such work provided that Simplifai has available capacity. Any consequences for the progress plan shall be agreed in writing before the work commence. In the absence of a separate agreement regarding the consequences of additional orders under this item, Simplifai shall notify the Customer of the consequences of the orders for the progress plan, and the work shall then be carried out on a time and materials basis. Simplifai shall maintain a directory of such changes on an ongoing basis. The directory shall be available to the Customer at all times.
If Simplifai believes that the contents or scope of the Services are being changed underway, such change shall be notified in writing to the Customer without undue delay. The Services shall be rendered by the agreed date and at the agreed price if no such notice has been given.
The Services may be cancelled by the Customer by giving thirty (30) days’ written notice.
In the case of cancellation prior to the completion of the Assistance, the Customer shall pay:
a) The amount owing to Simplifai for the work already performed.
b) The documented costs incurred by Simplifai in relation to the reassignment of personnel.
c) Other direct costs incurred by Simplifai as a result of the cancellation.
Cancellation of the Services under this Agreement will not affect any license agreement for Simplifai software concluded separately, such licenses will remain in full force and effect until specifically cancelled by the Customer.
3. THE DUTIES OF THE PARTIES
3.1 THE DUTIES OF SIMPLIFAI
The Services shall be completed in accordance with the Agreement, and shall be rendered efficiently, effectively, professionally and in accordance with good practice in the IT industry. The Services will be provided on a best-effort basis based on time and materials. Any assistance with training during or after delivery does not warrant any specific result, as the software’s responses will depend on a number of external factors such as amount and quality of data, range and variation of training data compared with operational data post-delivery and customer requirements.
Simplifai shall cooperate with the Customer in good faith, and shall attend to the interests of the Customer.
Requests from the Customer shall be replied to without undue delay.
Simplifai shall, without undue delay, give notice of circumstances that Simplifai understands, or ought to understand, may be of relevance to the completion of the Services, including any expected delays.
3.2 THE DUTIES OF THE CUSTOMER
The Customer shall contribute to the completion of the Services in good faith.
Requests from Simplifai shall be replied to without undue delay.
The Customer shall, without undue delay, give notice of circumstances that the Customer understands, or ought to understand, may be of relevance to the completion of the Services, including any expected delays.
The Customer is responsible for making the necessary arrangements allowing Simplifai to perform its duties, including, but not limited to, providing sufficient personnel during the period until the installation work begins and during the installation process towards the completion of the acceptance test, as well as providing Simplifai with necessary access to its premises, programs, data, adequate information etc.
A Party may, if deemed necessary by it, convene, with no less than three (3) working days’ notice, a meeting with the other Party to discuss the contractual relationship and how the contractual relationship is being handled.
3.4 COMMUNICATION AND DOCUMENTATION
Both Parties shall ensure the proper communication, storage and backup copying of documents and other materials of relevance to the Services, irrespective of the format thereof, including emails and other electronically stored materials.
3.5 DUTY OF CONFIDENTIALITY
All information that the parties gain access to, or knowledge of, in connection with the performance of the Agreement shall be considered confidential information, unless the information in question is demonstrably publicly available at the time the information was transferred.
The Parties are required to take reasonable precautions to safeguard confidential information, and shall at the minimum treat the information obtained in a manner similar to the way the receiving Party safeguards its own confidential information.
The Parties’ employees or sub-suppliers may be granted access to confidential information to the extent necessary for the proper and efficient performance of the Agreement. The receiving Party is responsible for ensuring that those who are given access to such information are made familiar with the confidentiality provisions laid down by this Agreement and impose on the person(s) concerned the same confidentiality as under this provision.
Following the termination of the Agreement, both Parties undertake to return or delete confidential information received from the other Party in connection with the Agreement.
This confidentiality provision applies from the time of contract until three years after termination of the Agreement.
Simplifai has the right to refer to the Customer’s choice of Simplifai’s Services and the type of Services provided in connection with the submission of public and private offers.
3.6 PERSONAL DATA
If Simplifai processes personal data as defined by Article 4 of Regulation (EU) 2016/679 (the “GDPR”) on behalf or at the request of the Customer, Simplifai will only process such data to the extent strictly necessary for Simplifai’s provision of the Services and fulfilment of their obligations under this Agreement. If the Customer requests Simplifai to process personal data on behalf of a third party, Simplifai will process the data in the role of a sub-processor to the Customer.
Simplifai’s processing of personal data on behalf of the Customer or a third party designated by the Customer shall be governed by Simplifai’s standard data processing agreement, available at https://www.simplifai.ai/dpa.
The Parties are obliged and undertakes to comply with applicable privacy legislation when performing their obligations under this Agreement and shall not infringe applicable privacy law nor do or fail to do anything that may lead to an infringement by the other Party.
The Customer is responsible for assessing whether they are able to use the Services for their and/or any third party’s intended purposes under applicable privacy legislation and shall hold Simplifai harmless against any and all claims resulting from their own or said third party’s infringement of data protection law and/or the provisions of this Clause.
3.7 FORM OF COMMUNICATION
All notices, demands or other communications relating to the Agreement shall be submitted in writing to the email address of the Parties’ Representatives.
4. CONSIDERATION AND PAYMENT TERMS
The consideration for the Services under the Agreement is defined in the Main Terms. Unless specifically defined in the Main Terms, the consideration will be calculated on time and materials according to the current Simplifai price list.
Unless otherwise defined in the Main Terms, invoicing shall take place in arrears per month. The invoiced amount shall pertain to the time spent up and until the invoicing date and any reimbursement of expenses incurred over the same period.
Payment shall be made within thirty (30) calendar days of the invoice date.
4.3 LATE PAYMENT INTEREST
If the Customer fails to make payment by the agreed time, Simplifai shall be entitled to claim interest on any overdue amount.
4.4 PAYMENT DEFAULT
If overdue consideration, with the addition of late payment interest, has not been paid within thirty (30) calendar days after the due date, Simplifai may send a written notice to the Customer, stating that the Agreement will be terminated for breach, unless settlement has taken place within sixty (60) calendar days of receipt of such notice.
Termination for breach may not take place if the Customer settles the overdue consideration, with the addition of late payment interest, before the expiry of the deadline.
4.5 PRICE ADJUSTMENT
Simplifai may change their hourly rates with effect for existing Agreements as of June 30th and December 31st. Any changes will be notified by e-mail to the Customer’s Representative two weeks in advance.
5. COPYRIGHT AND RIGHT OF OWNERSHIP
The Customer retains the ownership, the copyright and all other relevant rights to Customer data used in connection with the performance of the Services.
The right of ownership, the copyright and all other relevant rights, including all other relevant intellectual property rights, associated with the outcome of the Services shall accrue to Simplifai. To the extent Simplifai’s work generates any form of intellectual property right outside and independent of the Software, Clause 5 will apply to this IPR. Simplifai retains any and all rights connected to the use and development of the Software including developments to the Software as a consequence of training on Customer data. Under no circumstance will Simplifai have any rights of use to Customer’s data beyond the specific use required for the purposes defined in Clause 1.3 or defined in this Clause 5.
6. BREACH OF CONTRACT
6.1 WHAT IS DEEMED TO CONSTITUTE BREACH OF CONTRACT
There is a breach of contract if one of the Parties fails to perform its obligations under the Agreement, and this is not caused by circumstances relating to the other Party or by force majeure.
6.2 DUTY TO NOTIFY
If one of the Parties is unable to perform its duties as agreed, such Party shall give the other party written notice of this as soon as possible. The notice shall specify the reason for the problem and, insofar as it is possible, when performance can be expected to happen. A corresponding obligation shall apply if additional delays are to be expected after the first notice has been given.
6.3 REMEDIES FOR BREACH OF CONTRACT
6.3.1 Suspension of performance
In the event of breach of contract by Simplifai, the Customer may withhold payment, although the amount withheld shall not be obviously higher than what is necessary to secure the Customer’s claim resulting from the breach of contract. Simplifai shall not suspend any performance as the result of breach of contract on the part of the Customer, unless the breach is material. However, any breach of contract by the Customer which affects Simplifai’s performance may give Simplifai the right and obligation to suspend work while waiting for Customer’s delivery.
6.3.2 Price reduction
If Simplifai has not succeeded, despite repeated attempts, in curing a notified defect, the Customer may claim a proportional reduction in the contract price. The price reduction shall compensate for the reduced value of what has been delivered.
6.3.3 Termination for breach
If there is a material breach of contract, the other Party may, after having given the defaulting Party written notice and granted it a reasonable deadline for remedying the situation, terminate all or part of the Agreement for breach, with immediate effect.
The Customer, to the extent that the Customer is able to utilise the Services of Simplifai as intended, shall pay for the Services rendered prior to the termination.
A Party may claim damages in respect of any direct loss, including additional costs the Customer incurs due to substitute purchases, any loss caused by additional work and other direct costs in connection with delays, deficiencies or other breaches of contract pursuant to clause 6.1, unless the alleged defaulting Party demonstrates that this Party did not cause the breach of contract or create the reason for the breach of contract.
6.3.5 Limitation of damages
Unless otherwise agreed, Simplifai’s liability shall be limited as follows:
- No compensation for indirect losses may be claimed. An indirect loss is, but is not limited to; the Customer’s loss of profit of any kind, loss due to interrupted operations, loss of use, loss of data, as well as third party claims.
- If a price reduction is agreed due to a reduction of service level, the price reduction shall be considered a complete settlement of Simplifai’s liability, and any further compensation for such circumstances during the compensation period will be barred.
- The maximum liability incurred by Simplifai, whether resulting from contract or tort (including liability for negligence or breach of statutory duty) or otherwise, including price reduction due to reduced service level or recourse claims for privacy-related fines and damages, shall not exceed an amount that corresponds to the agreed consideration for the Assistance, excluding tax.
Other claims for compensation than those arising from this provision cannot be claimed between the Parties.
The said limitations shall not apply in the case of gross negligence or willful misconduct on the part of the defaulting party or anyone for whom it is responsible.
7. OTHER PROVISIONS
The invalidity or unenforceability, in whole or in part, of any provision in this Agreement shall not affect in any way the remainder of the provisions herein.
This Agreement constitutes the final and entire Agreement between the Parties and supersedes all prior and contemporary agreements, oral or written.
This Agreement may be executed in two counterparts, each of which shall be deemed to be an original, and all of which, when taken together, shall constitute one and the same instrument.
7.2 ASSIGNMENT OF RIGHTS AND OBLIGATIONS
The Parties are entitled to assign its rights and duties under these Terms of Delivery to other legal entities in the same corporation. Transfer of duties under the Agreement to a third party requires the other Party’s written consent. Changes in the ownership structure of any Party is not to be considered a transfer of rights under these Terms of Delivery. The right to consideration under this Agreement may be assigned freely. Such assignment shall not release the relevant Party from its obligations and responsibilities.
7.3 BANKRUPTCY, COMPOSITION WITH CREDITORS, ETC.
In the event of debt rescheduling proceedings, composition with creditors, bankruptcy, or any other form of creditor intervention, in respect of the business of Simplifai, the Customer shall be entitled to terminate the Agreement with immediate effect, unless otherwise stated by mandatory law.
7.4 FORCE MAJEURE
Should an extraordinary situation outside the control of the Parties arise that makes it impossible to perform duties under this Agreement, and which under applicable law shall be classified as force majeure, the other Party shall be notified of this as soon as possible. The obligations of the affected Party shall be suspended for as long as the extraordinary situation prevails. The corresponding obligations of the other Party shall be suspended for the same period.
In force majeure situations, the other Party may only terminate the Agreement for breach with the consent of the affected Party, or if the situation prevails or is expected to prevail for more than ninety (90) calendar days from the date on which the situation arose, and in such case only with fifteen (15) calendar days’ notice.
The Parties shall, in connection with force majeure situations, have a mutual disclosure obligation towards each other concerning all matters that must be deemed relevant to the other party. Such information shall be disclosed as soon as possible.
8. GOVERNING LAW & DISPUTE RESOLUTION
Unless otherwise agreed in the Main Terms, the Parties’ contractual relationship is governed by Norwegian law, without regard to its choice of law principles.
Disputes relating to these Terms of Delivery, which cannot be settled by negotiations between the Parties, shall be settled by the ordinary courts, with Oslo District Court as the legal venue.