General Terms and Conditions for the supply of Nedshield Goods & Services
Revision date: 25/01/2020
VERSION : 2020(1)
- 1 Validity
The General Terms and Conditions apply to all services provided by NEDSHIELD including sales contracts, contracts of services, contracts for work and services and all other services as well as for any related offers. The General Terms and Conditions are deemed accepted upon placement of an order, however, no later than when receiving the goods/services. Any contrary terms and conditions of the customer shall not become a part of the contract even if they are not explicitly rejected.
- 2 Delivery terms and times of performance
All times of delivery and performance mentioned in the offer are approximate and non-binding, unless otherwise specifically stated in the contract. NEDSHIELD is entitled to make partial deliveries and/or carry out partial performance. Events resulting from force majeure which make it considerably more difficult or even impossible for NEDSHIELD to perform, shall entitle to postpone the fulfillment of the contractual obligations for the duration of the impediment plus a
reasonable restarting time even if binding delivery dates and performance times were agreed. The same as for force majeure shall apply to strikes, lockouts and similar situations that may affect NEDSHIELD either directly or indirectly and that are beyond its control.
For international business transactions, the following shall apply in addition: In the event of a delay occurring with regard to binding performance and/or delivery times which is in the responsibility of NEDSHIELD and which is proven to result in damages to the customer, after delivery and/or performance time having been exceeded by more than three weeks, the customer shall be entitled to claim damages caused through delays in accordance with § 8. In deviation of § 8, the amount of compensation for damages shall total a maximum of 0,25% for each full week, but no more than 5% of the part of the delivery or performance for which NEDSHIELD is in delay and in no event shall exceed the total amount of the sum paid to NEDSHIELD by the customer. § 15 applies accordingly. Additional claims on the part of the customer with regard to default are excluded, either with regard to further damages or with regard to any other costs or expenditure.
- 3 Terms for services under sales contracts
Delivered goods shall be checked immediately by the customer for defects. Ascertained defects are to be announced in writing by the customer immediately. The transfer of risk takes effect after the goods have been handed over to the employee or third party assigned with carrying out the delivery. This also applies should the delivery be carried out by NEDSHIELD or by a company commissioned by it. Transfer of ownership is subject to the payment of the full sales price.
- 4 Terms for services under contracts for work and services
If no other special written arrangements have been made, the customer shall perform the acceptance of the work within two weeks subsequent to the receipt of written notification of acceptance readiness and notify NEDSHIELD in writing of the results and by providing a complete explanation of possible deficiencies within a further week. Should NEDSHIELD not receive such written declaration of the results of the acceptance from the customer within 4 weeks of notification of acceptance readiness, the work shall be deemed as accepted. Acceptance may only be refused in the event of grave defects. Grave defects are only to be defined as such that eliminate or seriously inhibit the functioning of the work for the defined purpose. Utilization of the work regardless of whether fully or only in part corresponds to acceptance. The above provisions apply accordingly to partial acceptances.
- 5 Customer’s duty to support
The customer shall support the activities of NEDSHIELD and in particular to create free of charge all the requirements in his operational domain necessary for the proper execution of the contract. In particular, the customer is obliged to provide or to create the system environment that is necessary for the fulfillment of the contractually agreed service performance. This applies accordingly to the procurement of the licenses necessary for the services to be performed by NEDSHIELD in so far that they cannot be procured from NEDSHIELD. Should these licenses not be at hand or not be at hand on time or if they are not fully supported by the system environment, the customer releases NEDSHIELD from any claims. A technical inspection of the customer’s systems environment shall take place not until the start of project activities unless other explicit arrangements have been agreed. In the event this inspection turns out the infeasibility of the project or parts of it, the customer is entitled to termination of the contract. If the customer is in delay in fulfilling its responsibilities, the service performance obligation of NEDSHIELD for services that cannot be performed without this fulfillment or only with disproportionate additional costs will be suspended. Delays caused by the customer’s breach of an obligation to co-operate or resulting from events beyond the control of NEDSHIELD shall be subject to separate settlement according § 6, the same as otherwise incurring additional costs even in the case of fixed-price contracts. In addition, NEDSHIELD may terminate the respective contract due to an important reason, if the customer did not correct the responsibility for which it is in delay, despite written request, containing a reasonable deadline and threat of termination.
- 6 Terms of payment and cost estimates
All prices are quoted net in either Euros or Swiss Francs, as provided for in the official quote, and are based on the offer supplemented by the currently applicable price list of NEDSHIELD. Unless otherwise agreed, NEDSHIELD shall charge for any incidental expenses separately as incurred, in particular for traveling expenses and traveling time. Traveling expenses and traveling time shall be calculated on the basis of the currently applicable price list of NEDSHIELD. Invoices are due for payment upon receipt. If the customer has fallen into arrears with payments, NEDSHIELD is entitled to the legal rights.
The customer shall immediately check the invoice and within 14 days from the date of invoice informing NEDSHIELD of any objections regarding the invoice itself or the accompanying documents (e.g. calculation of traveling expenses or proof of services rendered) in writing stating the reasons. Should no objection be lodged within this period (the receipt of a fax suffices) or no reasons are stated for the objection, the invoice including the accompanying documents shall be deemed accepted. Should the payment owed be based on a cost estimate, NEDSHIELD will immediately announce a foreseeable exceeding of the said costs of more than 15%. Exceeding of less than 15% is payable without consent from the customer. Excessive costs beyond this shall only be invoiced if agreed with the customer. The customer is entitled to terminate the contract should he be advised of impending excessive costs to the initial cost estimate of more than 20%. Changes in scope, or solution/product design are excluded, where this is not directly caused by NEDSHIELD. For international business transactions, the following shall apply in addition: As far as it is not otherwise stated, prices do not include customs duties, taxes and any other levies. This also applies to taxes, social security contributions or other contributions for employees of NEDSHIELD, who participate in the execution of the contract at any given site of the customer. In so far as customs duties, taxes or other levies are liable and payable in the country in which work/services shall be carried out on behalf of the customer these shall be remunerated by the customer within 14 days of receipt of the NEDSHIELD invoice covering these costs. Nedshield reserves the right to factor all or part of any invoice/s or receivable/s from customer with a third party at any time after such invoice/s has been raised by NEDSHIELD and customer agrees to co-operate with such third party to effect such factoring.
- 7 Claims resulting from defects
NEDSHIELD is obliged to remedy free of charge any defects for which it is responsible and of which it has been immediately notified in writing, free of charge. The time limit for the assertion of claims resulting from defects is 12 months from completion, delivery or acceptance of the respective service performance. Claims can only be asserted based on defects which can be reproduced, or which become otherwise apparent. In particular, NEDSHIELD is not responsible for defects resulting from the lack of or insufficient co-operation by the customer or which result from the incorrect use and or alteration of a performed service by the customer itself or by third parties commissioned by it. In the case of a defect, NEDSHIELD is always entitled to remedy within reasonably fixed time periods. Should the reasonably final attempt of remedy fail, despite the fact that the customer provided NEDSHIELD with an adequate additional deadline with the declaration that the remedy will be rejected after the deadline expired, the customer is entitled to decrease payments for the deficient performance or optionally to terminate the contract. The customer may terminate service contracts under the same conditions instead of these rights. Damage claims are subject to § 8.
- 8 Liability and Compensation of Damages
NEDSHIELD is excluded from any liability regardless of the reason, except if
- NEDSHIELD is charged with and found guilty of intentional or gross negligence;
- the damage occurred is due to the breach of a cardinal obligation, this means a
principal and integral contractual obligation of NEDSHIELD, the fulfillment of which is a prerequisite to achieve the objectives intended by the customer and which were documented as known by NEDSHIELD and which have been mutually understood and accepted at the conclusion of the contract provided that the customer has trusted in its fulfillment.
- NEDSHIELD is responsible for any direct damages that rest on injuring life, body or health.
If NEDSHIELD is, by exception, liable according to the aforementioned subsections, and if NEDSHIELD has only been negligent, then the liability is limited to the foreseeable damages at the time of agreement closing, unless the customer is not a merchant as defined in the Swiss Commercial Code.
NEDSHIELD is not liable for any consequential damages and lost profit. NEDSHIELD is not liable for the loss or destruction of data, unless such has occurred due to gross negligence or willful injury of contractual or legal obligations. As far as a liability of NEDSHIELD remains, the compensation for damages is limited to the value of the products and services to be rendered under the contract in which the damage occurs.
- 9 Termination
In the case of a temporally unlimited contract a contractual notice of termination is permissible under observation of a period of notice of four weeks to the end of a quarter. An extraordinary termination without notice is permitted at any time for both temporary limited and unlimited contracts if an important reason exists. Alongside the reasons mentioned in the contract itself, an important reason for termination shall be the commencement of insolvency proceedings of the other party’s assets and likewise a payment stop that endangers the duly contract execution.
- 10 Rights for Work Results and Know-how
Unless otherwise contractually agreed, all rights of the work results created for the customer, in particular regarding any software or internet-based applications, which are created or modified by NEDSHIELD shall remain the property of NEDSHIELD. This also applies to the software/web applications created under a commission from NEDSHIELD or any software/ applications which are used under license provided that these rights are not legally entitled to another holder. This applies in particular to copyright, proprietary rights, rights of use and rights of exploitation, licensing and sublicensing rights and the underlying know-how. The same applies for other intellectual property. The customer is entitled, as far as not otherwise arranged in writing, to the non-exclusive right to use the work results for the purposes agreed, including the right to copy, to process, to edit and to publish it for internal use. Except as expressly otherwise agreed the right to use is not transferable and not sub-licensable.
- 11 Breach of Third Party Property Rights
NEDSHIELD is liable for its services within the European Union being free of third party property rights and indemnifies the customer from claims from third parties. If a third party claims against the customer that its rights are being infringed, the customer shall immediately inform NEDSHIELD in writing and leaves with it the defense against the claims lodged. Should services infringe the rights of third parties, NEDSHIELD shall at its own discretion and at its own cost: provide the customer with the right to utilize the service or make the service free of property rights. If NEDSHIELD is not able to facilitate this within a reasonable time period to be stipulated by the customer, the customer is entitled to request compensation according to § 8.
- 12 Confidentiality
The contractual parties agree to use confidential verbal and written information acquired from the other contractual party or a third party in connection with the execution of the contract only for the performance of the contract and to keep it confidential against third parties. The obligation to confidentiality shall also apply to the contractual terms and conditions. The obligation to confidentiality shall survive the contract after its termination for a further 3 years. The disclosure and the use as a reference is permitted regarding the name of the other contractual party (including its actual logo), the subject of the project and the order volume may be disclosed or used as a reference.
- 13 Loyality
For the duration of the contract and an additional period of 6 months after its termination, the contractual partners agree to refrain from actively poaching employees of the other party in an anti-competitive way.
- 14 Setting off, Assignment, Retention
Only uncontested or legally enforceable claims shall entitle a contractual partner for retention or setting off rights. Assignment of claims by the customer shall only be possible with the prior consent of NEDSHIELD. NEDSHIELD is entitled to refuse its services should the customer be in default with his contractually obliged performance or partial performance.
- 15 Statutory Period of Limitation
Any and all claims from and in connection with the contract, except warranty claims stipulated in § 7, shall be subject to a statutory period of limitation of 12 months after they arise, however no later than 12 months after termination of the contract, if the other legal requirements are fulfilled.
- 16 Requirement for Written Form
Alterations and amendments to this contract including the change of the requirement for the written form must be in writing. Verbal collateral agreements are not valid. Hand-written alterations and amendments to offers and contracts require initialization from both parties to validate the signatures.
- 17 Rules of Interpretation
The invalidity of a clause does not affect the validity of the remaining clauses. Should a clause be or become invalid, the parties are under obligation to replace the invalid clause with a valid clause, under consideration to what is legally permissible, economically aimed and approaching as closely as possible the purposes and intentions of the invalid clause. This also applies in the case of loopholes in the contract. Also, repeated infringements by NEDSHIELD against the provisions of its business conditions do not detract in any way from their validity or need to comply with them.
- 18 Miscellaneous
Agreed is the exclusive applicability of Swiss Law under exclusion of UN sales rights (CISG). Place of fulfillment of any and all contractual obligations and exclusive place of jurisdiction shall be the courts competent for the place of business of NEDSHIELD. Notwithstanding the foregoing, NEDSHIELD is entitled to apply to the courts competent for the headquarters of the customer for legal action. For international business transactions, the following shall apply in addition: The contractual regulations and presented provisions are exclusively applicable for all disputes resulting from and in connection with the contractual relationship even if the contractual relationship is regarded as terminated whether by expiration, termination or fulfillment.
AMMENDMENT TO GENERAL TERMS AND CONDITIONS TO COMLY WITH GDPR
- 1 Application
NEDSHIELD hereby amends its General Conditions for SERVICES on the terms of this Schedule as follows:
The following definitions and rules of interpretation shall apply in this Schedule, in addition to those contained in clause 1 of the General Conditions:
“Act” refers to the Swiss Federal Data Protection Act (DPA);
“Customer Data” means all necessary personal data relating to any Customer (including name and contact details and any other data listed in Schedule 1) and any data subject employed or engaged by any Customer that is provided to NEDSHIELD under the Agreement;
“Data Protection Laws” refers to:
(i) the Regulation (unless and until it is no longer directly applicable in Switzerland);
(ii) any Swiss implementing laws, regulations and secondary legislation under the Regulation
(as amended or updated from time to time);
(iii) any successor legislation to the Regulation; and
(iv) the Act; and
“Regulation” refers to the EU General data Protection Regulation (2016/679)
These Schedules are in addition to the NEDSHIELD’s and the Customer’s obligations under the Data Protection Laws and the General Conditions.
Terms used in these Schedules relating to data privacy/protection (but not otherwise defined), such as personal data, data processor and data subject, shall have the meaning(s) given to them in the Act or the Regulation (as applicable).
The terms and provisions of this Schedule shall survive the termination or expiry of the General Conditions (for any reason).
- 2 Data Protection
Where NEDSHIELD processes any Customer Data, NEDSHIELD will comply with all requirements and obligations under the Data Protection Laws.
The Customer shall notify all Users of the:
- nature and identity of NEDSHIELD as a data processor;
- categories of personal data transferred; and
- maintain a valid and subsisting registration with the Information Commissioner’s Office to process the Customer Data (where required to do so).
- ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of, and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected (having regard to the state of technological development and the cost of implementing any measures);
- ensure that all personnel, contractors, agents or representatives who have access to and/or process personal data at any time are:
(a) limited only to those natural persons who need access to the personal data for NEDSHIELD to meet its obligations under these General Conditions;
(b) informed of the confidential and sensitive nature of personal data; and
(c) are aware of their obligations, and data subjects’ rights, under the Data Protection Laws;
assist the Customer (at the Customer’s cost) within a reasonable period in responding to any request from a data subject in connection with any exercise of any of its rights under the Data Protection Laws and to provide assistance with respect to security, breach notifications, impact assessments and consultations, where requested;
provide, on request, a copy of all personal data held by NEDSHIELD in the format and on the media reasonably specified by the Customer (at the Customer’s cost);
notify the Customer as soon as reasonably practicable on becoming aware of a personal data breach, including if any personal data is lost, destroyed or becomes damaged, corrupted or unusable, and where requested or required to assist, to notify the data subject of such breach;
keep and maintain complete and accurate records and information of any processing of personal data it carries out on behalf of the Customer, and permit (on reasonable notice), the Customer (or the Customer’s representative) to inspect all such records relating to the processing of personal data by the Company to demonstrate its compliance with this Schedule; and
notify the Customer (as soon as reasonably practicable), if it has been given an instruction which doesn’t comply with the Data Protection Laws.
The Customer acknowledges that the Customer Data will be processed by NEDSHIELD through:
- hosting on third party systems; or being
- processed by staff in NEDSHIELD, and, or its affiliate offices located;
- outside of the EEA or a territory deemed to ensure adequate protection of personal data by the European Commission.
- 2 Other Customer Obligations
Any definition of “ automated personal data” shall have the updated meaning given to it in the Regulation, not the Act.
- 3 Consequences of Termination
In addition to any other consequences of termination listed in the General Conditions, each party will (at the disclosing party’s request) promptly return to the other all Confidential Information and any other property (including any personal data and Customer Data) which is in its custody or control, or will destroy the same and certify such destruction.
- 4 Credit Checks and Fraud Prevention
Nedshield Standard Terms and Conditions of Purchase
Revision date: 25/01/2020
VERSION : 2020(1)
1. TERMS OF AGREEMENT
The purchase order, together with these terms and conditions, and any attachments and exhibits, specifications, drawings, notes, instructions and other information, whether physically attached or incorporated by reference (collectively the “Purchase Order”), constitutes the entire and exclusive agreement between the NEDSHIELD company (“NEDSHIELD”) and the supplier (the “Supplier”) identified in the Purchase Order. NEDSHIELD’s submission of the Purchase Order is conditioned on Supplier’s agreement that any terms different from or in addition to the terms of the Purchase Order, whether communicated orally or contained in any purchase order confirmation, invoice, acknowledgement, release, acceptance or other written correspondence, irrespective of the timing, shall not form a part of the Purchase Order, even if Supplier purports to condition its acceptance of the Purchase Order on NEDSHIELD’s agreement to such different or additional terms. Supplier’s electronic acceptance, acknowledgement of this Purchase Order, or commencement of performance constitutes Supplier’s acceptance of these terms and conditions.
Notwithstanding the foregoing, if a master agreement covering procurement of the Products or Work described in the Purchase Order exists between Supplier and NEDSHIELD, the terms of such master agreement shall prevail over any inconsistent terms herein.
2.1 “Deliverables” means the deliverables specified in the Purchase Order (and any Statement of Work “SOW” ) to be delivered on or before the Delivery Date.
2.2 “Delivery Date” means the date or dates specified in the Purchase Order by which the Supplier is required to deliver the Work.
2.3 “Harmful Code” means any software intentionally designed to (i) disrupt, disable, harm, or impede operation, or (ii) impair operation based on the lapse of time, including but not limited to viruses, worms, time bombs, time locks, drop-dead devices, access codes, security keys, back doors, or trap door devices.
2.4 “Intellectual Property Rights” means any and all tangible and intangible: (i) copyrights and other rights associated with works of authorship throughout the world, including but not limited to copyrights, neighboring rights, moral rights, and mask works, and all derivative works thereof;
(ii) trademark and trade name rights and similar rights; (iii) trade secret rights; (iv) patents, designs, algorithms, utility models, and other industrial property rights, and all improvements thereto; (v) all other intellectual and industrial property rights (of every kind and nature throughout the world and however designated) whether arising by operation of law, contract, license, or otherwise; and (vi) all registrations, applications, renewals, extensions, continuations, divisions, or reissues thereof now or hereafter in force (including any rights in any of the foregoing).
2.5 “Preexisting Materials” means any Intellectual Property Rights or tangible personal property of Supplier or NEDSHIELD created before the date of this Purchase Order or outside the scope of this Purchase Order.
2.6 “Products” means tangible goods specified in the Purchase Order to be delivered on or before the Delivery Date.
2.7 “Services” means the services that Supplier is to perform for NEDSHIELD specified in the Purchase Order.
2.8 “Statement of Work” or “SOW” means the document specifying, without limitation, the scope, objective, and time frame of the Work that Supplier will perform for NEDSHIELD.
2.9 “Subcontractor” means a third party performing Work under an agreement (a “Subcontract”) with Supplier.
2.10 “Supplier Personnel” means Supplier’s employees, consultants, agents, independent contractors and Subcontractors.
2.11 “Third Party Intellectual Property” means the Intellectual Property Rights of a third party which Supplier uses or incorporates into the Work.
2.12 “Work” means the Deliverables, Products and Services specified in the Purchase Order, including any SOW.
3.1 Time is of the essence in Supplier’s performance of its obligations under Section 3 of the Purchase Order. Supplier will immediately notify NEDSHIELD if Supplier’s timely performance under the Purchase Order is delayed or is likely to be delayed. NEDSHIELD’s acceptance of Supplier’s notice will not constitute NEDSHIELD’s waiver of any of Supplier’s obligations.
3.2 If Supplier delivers Work after the Delivery Date, NEDSHIELD may reject such Work.
3.3 NEDSHIELD will hold any Work rejected under this Purchase Order at Supplier’s risk and expense, including storage charges, while awaiting Supplier’s returns shipping instructions. Supplier will bear all return shipping charges, including without limitation, insurance charges NEDSHIELD incurs on Supplier’s behalf. NEDSHIELD may, in its sole discretion, destroy or sell at a public or private sale any rejected Work for which NEDSHIELD does not receive return shipping instructions within a reasonable time, and apply the proceeds, if any, first toward any storage charges.
3.4 Supplier will preserve, pack, package and handle the Deliverables and Products so as to protect the Deliverables and Products from loss or damage and in accordance with best commercial practices in the absence of any specifications NEDSHIELD may provide. Without limiting the foregoing, Supplier shall observe the requirements of any local laws and regulations relating to hazardous work, including, without limitation, with respect to its accompanying information, packing, labeling, reporting, carriage and disposal. Further, Supplier will ensure that all deliveries are executed in accordance with the prescribed security measures to protect the identity, origin and product content, in such case that these are not explicitly provided to Supplier, the Supplier shall ensure that all reasonable measures shall be taken to assure the aforegoing as HIGHLY CONFIDENTIAL.
3.5 Supplier will include with each delivery of Products a packing list identifying the Purchase Order number, the NEDSHIELD part number for each of the Products (if applicable), a description and the quantity of each of the Products, and the date of shipment.
3.6 Unless NEDSHIELD expressly instructs otherwise, Supplier will deliver all Work to NEDSHIELD’s designated location at the address set forth in the Purchase Order. Seller assumes responsibility for all shipping and delivery charges including, without limitation, customs, duties, costs, taxes and insurance. Risk of loss for the Deliverables and Products does not pass to NEDSHIELD until acceptance in accordance with Section 6.
4. PRICE AND PAYMENT
4.1 Unless otherwise specified in the Purchase Order, the price for the Work includes all taxes and other charges such as shipping and delivery charges, duties, customs, tariffs, imposts and government-imposed surcharges. Supplier will, at NEDSHIELD’s request, break-out from the price all such taxes and other charges, in its invoices. Supplier shall use its best efforts to assist NEDSHIELD in all legal efforts to minimize the taxes resulting from the performance of this Purchase Order.
4.2 NEDSHIELD will pay Supplier the price in accordance with the payment terms set forth in the Purchase Order following the later of: (i) the Delivery Date; (ii) the date of NEDSHIELD’s acceptance of all of the Work; or (iii) NEDSHIELD’s receipt of a properly prepared invoice. A properly prepared invoice must include the Purchase Order number and, if required in the Purchase Order, Supplier’s certification of conformance of the Work to the requirements. Payment will be in the currency of the country in which the NEDSHIELD entity or affiliate identified in the Purchase Order is located, and if the price set forth in the Purchase Order is not in the local currency, then NEDSHIELD will determine the local currency equivalent of the price as of date of payment. NEDSHIELD may, at any time, set-off any amounts Supplier owes NEDSHIELD against any amounts NEDSHIELD owes to Supplier or any of its affiliated companies.
5. OWNERSHIP AND LICENSE
5.1 Unless otherwise specified in a SOW and except as provided in Section 5.2, NEDSHIELD is the sole and exclusive owner of all Deliverables and Supplier hereby irrevocably assigns and transfers to NEDSHIELD all of its worldwide right and title to, and interest in, the Deliverables, including all associated Intellectual Property Rights.
5.2 Unless otherwise specified in a SOW, each party owns all right, title, and interest in and to any of its Preexisting Materials. Supplier hereby grants NEDSHIELD a perpetual, irrevocable, worldwide, transferable, royalty-free, nonexclusive license, with the right to sublicense and authorize the granting of sublicenses, to use and reproduce Supplier’s Preexisting Materials in the Deliverables to the extent necessary for NEDSHIELD’s exercise and exploitation of its rights in the Deliverables.
5.3 Unless otherwise specified in an SOW, Supplier will obtain and assign to NEDSHIELD a non- exclusive, royalty-free, worldwide, perpetual, irrevocable, transferable, sub-licensable license to use all Third Party Intellectual Property Rights incorporated into, required to use, or delivered with the Work. Supplier will deliver copies of the above releases and licenses to NEDSHIELD upon NEDSHIELD’s request.
6. INSPECTION AND ACCEPTANCE
NEDSHIELD may reject any or all of the Work which does not conform to the applicable requirements within 10 business days of Supplier’s delivery of the Work. At NEDSHIELD’s option, NEDSHIELD may (i) return the non- conforming Work to Supplier for a refund or credit; (ii) requires Supplier to replace the non-conforming Work; or (iii) repair the non-conforming Work so that it meets the requirements. As an alternative to (i) through (iii), NEDSHIELD may accept the non-conforming Work conditioned on Supplier providing a refund or credit in an amount NEDSHIELD reasonably determines to represent the diminished value of the non-conforming Work. NEDSHIELD’s payment to Supplier for Work prior to NEDSHIELD’s timely rejection of such Work as non- conforming will not be deemed as acceptance by NEDSHIELD.
7.1 As used in this Section 7, “Change” means a change NEDSHIELD directs or causes within the general scope of this Agreement, the applicable SOW or both.
7.2 NEDSHIELD, by written order (“Change Order”), may make Changes in accordance with this Section 7.
7.3 If Supplier asserts that NEDSHIELD has directed or caused a Change to the cost of or time for performance for which NEDSHIELD has not issued a Change Order, Supplier will promptly notify NEDSHIELD in writing of the Change, providing (i) a description of the action or inaction asserted to have caused the Change; (ii) an estimate of the equitable adjustment that would be required for Supplier to perform the Changed Work; and (iii) a date no less than 30 days from the date of notice by which NEDSHIELD must respond to Supplier’s notice so that Supplier may proceed with the Work unchanged. NEDSHIELD will evaluate Supplier’s notice of Change in good faith, and if NEDSHIELD agrees that it has made a constructive change, NEDSHIELD will issue a Change Order to Supplier.
7.4 Supplier shall, as promptly as practicable, after giving the notice of the Change, or within 10 days of receiving a Change Order, submit a request for equitable adjustment specifying the adjustment in the price or time for performance resulting from the Change.
7.5 The parties shall negotiate an amendment to the applicable SOW to incorporate a Change Order providing for an equitable adjustment to the price, time for performance, or both.
7.6 Supplier will proceed with the Changed Work as directed, notwithstanding that the parties have not negotiated the amendment to this Agreement or the applicable SOW to incorporate the equitable adjustment.
7.7 All changes to the initial SOW or Purchase Order shall be affected by Supplier under the same conditions (including warrantees/guarantees for any delivered products and services) as agreed in the initial Purchase Order terms and conditions unless expressly agreed otherwise in writing.
8. REPRESENTATIONS AND WARRANTIES
8.1 Supplier represents and warrants that:
(i) it has the full power to enter into the Purchase Order and to perform its obligations under the Purchase Order;
(ii) it has the right and unrestricted ability to assign the Work to NEDSHIELD including, without limitation, the right to assign any Work performed by Supplier Personnel and Subcontractors;
(iii) the Work, and NEDSHIELD’s use of the Work, do not and will not infringe upon any third party’s Intellectual Property Rights, right of publicity or privacy, or any other proprietary rights, whether contractual, statutory or common law;
(iv) Supplier will not disclose to NEDSHIELD, bring onto NEDSHIELD’s premises, or induce NEDSHIELD to use any confidential or proprietary information that belongs to anyone other than NEDSHIELD or Supplier which is not covered by a non-disclosure agreement between NEDSHIELD and Supplier;
(v) Software supplied by Supplier does not contain any Harmful Code;
(vi) Supplier’s Work conforms to NEDSHIELD’s specifications, Supplier’s quotation or proposal, and Supplier’s brochures or catalogs, and if none of the foregoing is applicable, then such Work is suitable for the intended use;
(vii) in performing its obligations under this Purchase Order it will apply the Nedshield Code of Ethics;
(viii) except to the extent Supplier is providing: (A) Products only; (B) Services from a Supplier location; or (C) Services in relation to marketing, educational, or a sales related event at a third party site, they have read and comply with the applicable Supplier Environmental Health and Safety Requirements;
(ix) it will not use or disclose any
information that may identify an individual (“Personal Data”) that is
processed for or on behalf of NEDSHIELD, except to the extent necessary to
perform under this Purchase Order;
(x) only to the extent that Supplier actually processes Personal Data it will:
(A) implement and maintain appropriate technical and organizational measures and other protections for Personal Data – as per the European GDPR regulations and standards (including, without limitation, not loading any Personal Data provided to Supplier on (a) any laptop computers or (b) any portable storage media that can be removed from Supplier’s premises unless each case (i) such data has been encrypted and (ii) such data is loaded onto portable storage media solely for the purpose of moving such data to off-site storage), (B) report to NEDSHIELD any breaches of security of Personal Data immediately after discovery (“Security Incident”), (C) cooperate fully with NEDSHIELD in investigating any Security Incidents , (D) cooperate fully with NEDSHIELD’s requests for access to, correction of, and destruction of Personal Data in Supplier’s possession, (E) comply with all instructions or other requirements provided or issued by NEDSHIELD from time to time relating to Personal Data, and (F) permit NEDSHIELD and/or its duly authorized representatives, on reasonable prior notice, to inspect and audit Supplier’s business premises and computer systems to enable NEDSHIELD to verify that Supplier is in full compliance with its processing obligations under this Purchase Order;
(xi) it will not transfer Personal Data across any country border unless it is (a) strictly unavoidable for the proper performance under this Purchase Order, and (b) notified to NEDSHIELD in writing prior to any such transfer. Upon NEDSHIELD’s request,
Supplier shall enter into such other arrangements with NEDSHIELD as NEDSHIELD considers appropriate (e.g. the EU Model Clauses) in order to ensure that Supplier’s transfers are lawful.
(xii) it will not provide NEDSHIELD with Personal Data of any third party or its own employees. Notwithstanding the foregoing, if Supplier does provide NEDSHIELD with any Personal Data, Supplier represents and warrants that it has obtained the necessary consent to provide that Personal Data to NEDSHIELD and to allow NEDSHIELD to use, disclose, and transmit such Personal Data on a worldwide basis among NEDSHIELD and its affiliates in connection with this Purchase Order; and
(xiii) no Products contain or include components which:
- are subject to: ITAR (International Traffic in Arms Regulations) and the EAR (Export Administration Regulations)
and, or which contravene, or are not compliant with :
- Council Decision (CFSP) 2019/1560 of 16 September 2019 amending Common Position 2008/944/CFSP
- EU Council Regulation 428/2009
- European Network and Information Systems (NIS) Security Directive
8.2 NEDSHIELD warrants and represents to
Supplier that it has the full power to enter into the Purchase Order and to
perform its obligations under the Purchase Order.
8.3 TO THE EXTENT ALLOWED BY APPLICABLE LAW, NO OTHER WARRANTIES ARE MADE, EITHER EXPRESSED OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
9. ASSIGNMENT AND SUBCONTRACTING
9.1 Supplier may not assign any of its rights or delegate any of its obligations under the Purchase Order without NEDSHIELD’s prior written consent, which NEDSHIELD will not unreasonably withhold. NEDSHIELD may, at its option, void any attempted assignment or delegation undertaken without NEDSHIELD’s prior written consent.
9.2 Supplier may not subcontract any of its rights or obligations under the Purchase Order without NEDSHIELD’s prior written consent. If NEDSHIELD consents to the use of a Supplier`s Subcontractor, Supplier will:
(i) guarantee and will remain liable for the performance of all subcontracted obligations; (ii) indemnify NEDSHIELD for all damages and costs of any kind, subject to the limitations in Section 12 (Indemnification), incurred by NEDSHIELD or any third party and caused by the acts and omissions of Supplier’s Subcontractors’ and (iii) make all payments to its Subcontractors. If Supplier fails to timely pay a Subcontractor for work performed, NEDSHIELD will have the right, but not the obligation, to pay the Subcontractor and offset any amount due to Supplier by any amount paid to the Subcontractor. Supplier will defend, indemnify and hold NEDSHIELD harmless for all damages and costs of any kind, without limitation, incurred by NEDSHIELD and caused by Supplier’s failure to pay a Subcontractor.
9.3 To the extent allowed by applicable law, no person who is not a party to Purchase Order shall be entitled to enforce or take the benefit of any of its terms whether as a result of applicable legislation, custom or otherwise.
10. TERM AND TERMINATION
10.1 The Purchase Order will remain in effect with respect to any SOW already issued prior to expiration of the term of the Purchase Order until such SOW is either terminated or the Work is completed and accepted.
10.2 NEDSHIELD may terminate this Purchase
Order, any SOW, or both at any time, for no reason or for any reason, upon 15
days written notice to Supplier. Upon receipt of notice of such termination,
Supplier will inform NEDSHIELD of the extent to which it has completed
performance as of the date of the notice, and Supplier will collect and deliver
to NEDSHIELD whatever Work then exists. NEDSHIELD will pay Supplier for all
Work performed and accepted through the effective date of the termination,
provided that NEDSHIELD will not be obligated to pay any more than the payment
that would have become due had Supplier completed and NEDSHIELD had accepted
the Work. NEDSHIELD will have no further payment obligation in connection with
10.3 Either party may terminate the Purchase Order, any SOW or both, immediately by delivering written notice to the other party upon the occurrence of any of the following events: (i) a receiver is appointed for either party or its property; (ii) either makes a general assignment for the benefit of its creditors; (iii) either party commences, or has commenced against it, proceedings under any bankruptcy, insolvency or debtor’s relief law, if such proceedings are not dismissed within 60 days; or (iv) either party is liquidating, dissolving, or ceasing to do business in the ordinary course.
10.4 NEDSHIELD may immediately terminate the Purchase Order upon written notice to Supplier if there is a change in ownership representing 20 percent or more of the equity ownership of Supplier.
10.5 Either party may terminate this Purchase Order, any SOW or both, immediately by delivering written notice to the other party for any material breach not cured within 30 days of receipt of notice of the breach. NEDSHIELD shall have no further payment obligation to Supplier under any terminated SOW if NEDSHIELD terminates the SOW under this Section 10.5.
10.6 Any obligations or duties which, by their nature, extend beyond the expiration or termination of the Purchase Order shall survive the expiration or termination of the Purchase Order.
11. CONFIDENTIAL INFORMATION AND PUBLICITY
11.1 If NEDSHIELD and Supplier have entered into a Non-Disclosure Agreement (“NDA”) which covers disclosure of confidential information under the Purchase Order, and if the term of the NDA expires before the expiration or termination of the Purchase Order, then the term of the NDA shall be automatically extended to match the term of the Purchase Order.
11.2 The parties shall treat the terms, conditions, and existence of the Purchase Order as Confidential Information as defined in the NDA.
11.3 Supplier shall obtain NEDSHIELD’s written consent prior to any publication, presentation, public announcement, or press release concerning its relationship as a supplier to NEDSHIELD.
12.1 As used in this Section 12, a “Claim” is any claim, demand, loss, damage, liability, cost or expense (including professional fees and costs as incurred) for which one party (the “Indemnifying Party”) may be obligated to defend, indemnify and hold the other party (the “Indemnified Party”) harmless.
12.2 Supplier shall defend, indemnify and hold NEDSHIELD harmless from and against any and all
incurred, arising out of or in connection with any (i) act or omission of
Supplier (including its Subcontractors) in the performance of the Work; or (ii)
any infringement of a third party’s Intellectual Property Rights or any other
12.3 NEDSHIELD shall indemnify and hold Supplier harmless from and against any and all Claims as incurred, arising out of or in connection with: (i) Supplier’s use of NEDSHIELD’s products or services in connection with the Work; (ii) Supplier’s use of information or materials provided to Supplier by NEDSHIELD; or (iii) infringement a third party’s Intellectual Property Rights or any other rights resulting from Supplier’s adherence to NEDSHIELD’s written instructions.
12.4 Each party will indemnify and hold the other party harmless from and against any and all Claims, as incurred, arising out of any negligent or willful acts or omissions of the Indemnifying Party which results in personal injury (including death) or damage to tangible property (not including lost or damaged data).
12.5 The Indemnified Party will provide the Indemnifying Party with prompt written notice of the Claim and permit the Indemnifying Party to control the defense, settlement, adjustment, or compromise of any Claim. The Indemnified Party may employ counsel at its own expense to assist it with respect to any Claim. The Indemnified Party will have no authority to settle any Claim on the Indemnified Party’s behalf.
12.6 If a third party enjoins or interferes with NEDSHIELD’s use of any Work, then in addition to Supplier’s obligations under Section 12.2, Supplier will use its best efforts to (i) obtain any licenses necessary to permit NEDSHIELD to continue to use the Work; (ii) replace or modify the Work as necessary to permit NEDSHIELD to continue to use of the Work; or if (i) and (ii) are not commercially reasonable, then (iii) promptly refund to NEDSHIELD the amount paid for any Work for which a third party enjoins or interferes with NEDSHIELD’s use of the Work.
12.7 Nothing in this Section shall limit any other remedy of the parties.
13.1 NOTWITHSTANDING ANYTHING ELSE IN THE PURCHASE ORDER OR OTHERWISE, NEDSHIELD WILL NOT BE LIABLE TO SUPPLIER WITH RESPECT TO THE SUBJECT MATTER OF THE PURCHASE ORDER UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY AMOUNTS IN EXCESS IN THE AMOUNT NEDSHIELD PAID TO SUPPLIER IN THE SIX MONTHS PRECEDING THE EVENT OR CIRCUMSTANCE GIVING RISE TO SUCH LIABILITY.
13.2 IN NO EVENT WILL NEDSHIELD BE LIABLE TO SUPPLIER FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL DAMAGES OR LOSS OF PROFITS ARISING OUT OF, OR IN CONNECTION WITH, THE PURCHASE ORDER, WHETHER OR NOT NEDSHIELD WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
13.3 THE LIMITATIONS WILL APPLY NOTWITHSTANDING
ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN. NOTHING
IN THE PURCHASE ORDER LIMITS EITHER PARTY’S LIABILITY FOR BODILY INJURY OF A
PERSON, DEATH, OR PHYSICAL DAMAGE TO PROPERTY OR ANY LIABILITY WHICH CANNOT BE
EXCLUDED UNDER APPLICABLE LAW.
Supplier will secure and maintain insurance providing coverage for liabilities to third parties for bodily injury (personal injury) and damage to property in amounts sufficient to protect NEDSHIELD in the event of such injury or damage, and will be in compliance with any and all laws, regulations or orders addressing the liabilities of an employer to its employees for injuries and disease suffered in connection with employment. Supplier further will maintain such additional types and limits of insurance as is customary for a company of similar size and similar operations to Supplier in the jurisdiction or jurisdictions in which Supplier’s operations take place.
15. COMPLIANCE WITH LAWS
Supplier represents and warrants that it will comply with all applicable local and national laws and regulations pertaining to its performance of its obligations under this Purchase Order. In particular and without limitation, Supplier shall not act in any fashion or take any action that will render NEDSHIELD liable for a violation of any applicable anti-bribery legislation (including without limitation, the:
- U.S. Foreign Corrupt Practices Act and
- the UK Bribery Act (2010),
- and EU – Civil Law Convention on Corruption (ETS No. 174)
which prohibits the offering, giving or promising to offer or give, or receiving, directly or indirectly, money or anything of value to any third party to assist it them or NEDSHIELD in retaining or obtaining business or in performing the Work. Supplier’s failure to comply with this provision shall constitute a material breach of this Purchase Order.
16. GOVERNING LAW
validity, interpretation, and performance of this Purchase Order shall be
controlled by and construed under the laws of the Swiss Confederation. The
Switzerland Courts shall have exclusive jurisdiction over any claim arising
under this Purchase Order. Notwithstanding the foregoing, either party may seek
interim or temporary injunctive relief in any court of appropriate jurisdiction
with respect to any alleged breach of such party’s intellectual property or
proprietary rights. The parties specifically disclaim the application of the UN
Convention on Contracts for the International Sale of Goods to the
interpretation or enforcement of this Purchase Order.
17.1 Any notice to be given under the Purchase Order will be in writing and addressed to the party at the address stated in the front of the Purchase Order. Notices will be deemed given and effective (i) if personally delivered, upon delivery, (ii) if sent by an overnight service with tracking capabilities, upon receipt; (iii) if sent by fax or electronic mail, at such time as the party which sent the notice receives confirmation of receipt by the applicable method of transmittal; or (iv) if sent by certified or registered mail, within five days of deposit in the mail.
17.2 If there is a conflict between or among the Purchase Order and any documents attached to and incorporated by reference, the conflict will be resolved as follows:
17.2.1 A conflict between the terms of the Purchase Order and those set forth in an exhibit /(or any hyperlink provided) will be resolved in favor of the Purchase Order.
17.2.2 A conflict between the terms of the Purchase Order and those set forth in an SOW will be resolved in favor of the SOW.
17.2.3 A conflict between the terms of an exhibit or hyperlink and those set forth in an SOW will be resolved in favor of the SOW.
17.3 If any court of competent jurisdiction holds that any provision of the Purchase Order is illegal, invalid, or unenforceable, the legality, validity, and enforceability of the remaining provisions of the Purchase Order will not be affected or impaired, and all remaining terms of this Purchase Order remain in full force and effect, provided that this provision shall not be applied to defeat the intent of the parties.
17.4 A party’s election not to insist on strict performance of any requirement of the Purchase Order will not operate or be construed to waive any future omission or breach, or any other provision of the Purchase Order.