This Truewind Master Services Agreement (this “Agreement”) is entered into as of the Effective Date by and between “Truewind” and “Customer” (each is a “Party”, together they are the “Parties”).
“Affiliate” means any legal entity now or hereafter in control, controlled by or in common control with Truewind.
“Confidential Information” refers to non-public information that either Party may obtain from the other or have access to by virtue of this Agreement, including, but not limited to, each Party’s data and each Party’s proprietary Software and computer operations, all code, inventions, algorithms, business concepts, workflow, marketing, financial, business and technical information, the terms and pricing under this Agreement, authentication credentials associated with the Services, Personal Data and all information either clearly identified as confidential or that is of a nature that a reasonable person would understand to be confidential.
“Content” means software (including machine images), applications, online services, features, technology, data, text, audio, video, images or other content.
“Customer” means the Party executing this Agreement as a Customer or entity receiving the Services and identified in the applicable account record, billing statement or Order as the customer.
“Deliverables” means all goods, records, reports, documents, papers, other materials and deliverables (whether in documentary, electronic or other form) produced or to be produced by, or on behalf of, Truewind for Customer as part of the Services pursuant the execution of an Order provided they are identified as such.
“Effective Date” means the date on which Truewind and Customer have signed the Order (or the date of the last signature by any Party).
“Fees” means the amount to be paid for Services as detailed in the applicable Order.
“Intellectual Property” means any patents, patent rights, design rights, copyrights, database rights, trade secrets, know-how, trademarks, trade names, service marks and other intellectual property embodied therein and all applications and rights to apply for registration or protection rights pertaining thereto, in existence at the date hereof or created in the future. Rights regarding Intellectual Property shall be referred to as “Intellectual Property Rights” .
“Order”or “Order Form” means any ordering document attached hereto and or executed from times to times between the Parties specifying the Services which are to be delivered by Truewind to the Customer under the Agreement. Orders shall be deemed incorporated herein by reference.
“Personal Data” any data relating to an identified or identifiable living natural person, processed by Truewind or its Affiliates on behalf of the Customer pursuant to the Agreement.
“Pre-existing Intellectual Property” means any Intellectual Property developed or owned by a Party and/or Third Party prior to the commencement of the Services or that the other Party obtains ownership, license or control of separate and apart from the performance of this Agreement.
“Services” means the services provided to the Customer by Truewind and/or by any of its Affiliate, which may include training services, installation, integration, development, implementation, test, customization of information technology, support, maintenance and/or other consulting services as detailed and as specified on the applicable Order. “Third Party” means an entity which is neither a Party nor an Affiliate of a Party.
2.1 Scope. Truewind shall provide the Services to the Customer as set forth in the Order.
2.2 Expenses. Unless otherwise agreed, in addition to any and all fees in the applicable Order, Customer will reimburse Truewind for all reasonable costs and expenses related to the provision of the Services, including without limitation travel, lodging, meal and out-of-pocket expenses, and third party online and offline research services directly related to the provision of the Services (“Expenses”) incurred by Truewind in connection with the performance of the Services. Expenses shall be invoiced by Truewind as stated in the Order and paid by Customer in accordance with the terms of the Agreement. If per diem is not used, Truewind will include, upon request, reasonably detailed documentation of all such Expenses in excess of $25/€20/£20 (twenty-five USD/twenty EUR/twenty GBP) with each related invoice. Truewind shall be entitled to reimbursement for all pre-approved Expenses.
2.3 Changes. Should the Customer request Truewind to perform Services that are not included in the Order and/or should the Customer fail to deliver any materials, information, content, approvals or other required information to Truewind by the dates specified in the Order, Truewind will notify the Customer and Truewind will issue a change order (“Change Order”). Change Orders may be subject to additional Fees and Expenses. In such a case, Truewind will provide the Customer with a written time and cost estimate for the additional work for Customer’s review. Truewind will not perform any additional work not covered by an Order until the Change Order is mutually accepted and executed by the Parties.
2.4 Cooperation. Customer will cooperate reasonably and in good faith with Truewind in the execution of the Services by, without limitation: (i) allocating sufficient resources and timely performing any tasks reasonably necessary to enable Truewind to perform its obligations under each Order; (ii) timely delivering any materials, information, content, approvals and/or other information required under each Order; (iii) timely responding to Truewind’ reasonable inquiries related to the Services; (iv) actively participating in relevant scheduled meetings; (v) providing information, data and feedback that is complete, accurate and timely in all material respects. In the event that the Customer fails to deliver any materials, information, content, approvals or other required information to Truewind by the dates specified in the Order, all subsequent deadlines and/or milestones will be postponed accordingly and Truewind shall issue a Change Order in accordance with Section 2.3 (“Changes”) above.
2.5 Acceptance Criteria. Upon completion of each Deliverable or the conclusion of a milestone, Truewind will: (i) submit a complete copy of the Deliverable to Customer; and (ii) demonstrate and test its functionality in accordance with the applicable Order. If agreed in the applicable Order, the Deliverables may be subject to acceptance tests to be defined and executed by Customer to verify that they satisfy the agreed specifications set forth in the applicable Order as mutually agreed upon by the Parties for such Deliverable. Upon delivery of a Deliverable, in the absence of any notice from Customer within 5 business days or within the period explicitly agreed in the applicable Order, the Deliverable shall be deemed accepted.
2.6 Provision of Services to Third Parties. Truewind is in the business of providing products and consulting services to third parties which are or may be substantially similar to the Deliverables being developed for the Customer. Truewind is free to use all of Truewind’ ideas, know-how, approaches, methodologies, concepts, skills, tools, techniques, expressions, and processes, irrespective of whether possessed by Truewind prior to this Agreement, or acquired, developed, or refined by Truewind during the execution of the same (“Residual Knowledge”). Truewind shall not be prohibited or enjoined from using Residual Knowledge, other than Customer’s Deliverables and Customer’s Confidential Information, for any purpose, including providing Services to other customers.
2.7 Engagement of Affiliates. Truewind may perform all or part of the Services contemplated by the applicable Order directly or through any of its Affiliates as Truewind shall determine.
3. FEES AND PAYMENT TERMS
3.1 Fees and Payment Terms. The Customer will pay to Truewind the Fees for the Services according to the terms set forth in the Order. Except as otherwise stated in this Agreement, all Orders are non-cancelable and, upon payment, all payments are non-refundable.
3.2 Overdue Payments. Undisputed overdue payments shall bear interest at the lesser of 1% per month or the maximum rate allowed under applicable law. Customer acknowledges and accepts that the non-payment of any undisputed fees within the term defined in the applicable Order constitutes a material breach of this Agreement and that Truewind shall have the right to: (i) suspend the delivery of Services until all such due and undisputed amounts and respective interests have been paid; and/or (ii) exercise its right to terminate the Agreement under Section 6 (“Term and Termination”). Customer acknowledges that until the agreed Fees are paid to Truewind, the Deliverables or any part of them remain Truewind’s Intellectual Property Rights and the Customer is not entitled to use such Deliverables or any part of them.
3.3 Taxes. Unless otherwise stated, Truewind Fees do not include any direct or indirect local, state, federal or foreign taxes, levies, duties or similar government assessments of any nature, including but not limited, value-added, use or withholding taxes (collectively, “Taxes”). The Customer is responsible for paying all Taxes associated with the Services provided hereunder, excluding taxes based on Truewind’s net income or property. If Truewind has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section 3.3, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides Truewind with a valid tax exemption certificate authorized by the appropriate taxing authority.
4. INTELLECTUAL PROPERTY RIGHTS, OWNERSHIP AND TITLE
4.1 Truewind’ Intellectual Property. Customer acknowledges and agrees that all Intellectual Property rights in and to the Services are owned by Truewind and/or its Affiliates and shall, notwithstanding the terms of this Agreement, remain vested in Truewind. All rights not expressly granted by Truewind herein are reserved.
4.2 Customer’s Intellectual Property. Subject to the terms and conditions of this Agreement (including the payment of all agreed fees and Expenses) and to Truewind’s retention of its rights in any Truewind Intellectual Property and Pre-existing Intellectual Property, all Deliverables that are developed by Truewind for Customer are “work made for hire” for Customer under applicable law. To the extent any Deliverables do not qualify as a “work made for hire”, Truewind hereby assigns to the Customer (and its successors and assigns) all right, title and interest in and to the Deliverables, including all Intellectual Property rights therein. To the maximum extent permitted by law, Truewind waives all moral rights that may exist in the Deliverables
4.3 Pre-existing Intellectual Property. Each Party will maintain all right, title and interest in Pre-existing Intellectual Property, subject to any licenses granted under this Section 4.3. Subject to the terms and conditions of this Agreement (including the payment of all agreed Fees and Expenses) Truewind grants the Customer a non-exclusive, worldwide, royalty-free, non-transferable license to use, adapt, maintain, support, modify or improve Truewind’s Pre-existing Intellectual Property included in the Deliverables. All Third Party’s Pre-existing Intellectual Property remains Intellectual Property of such Third Party and it is the Customer’s responsibility to obtain the relevant license and authorizations to use such Third Party Pre-existing Intellectual Property
5.1 Use and Disclosure. During this Agreement and for a period of 3 (three) years following its termination, each Party shall hold in confidence and not use for any purposes unrelated to this Agreement or disclose to any third party (except the Party’s employees, agents or contractors who have a need to know and who are subject to confidentiality obligations at least as restrictive as those herein) any Confidential Information of the other Party. Each Party agrees to take all reasonable steps to ensure that the Confidential Information is not disclosed or distributed by its employees, contractors, or agents in violation of the terms of this Agreement.
5.2 Permitted Disclosures. Either Party may disclose Confidential Information of the other Party either: (i) in response to a valid order by a court or other governmental or regulatory body, or (ii) as otherwise required by law, or (iii) as necessary to establish the rights of either Party under this Agreement. The Party seeking to disclose information will promptly give notice to the other Party and allow the other Party to object or to seek a protective order, to the extent permitted by the applicable law.
5.3 Non-Confidential Information. The Parties shall not be obligated under this Section (“Confidentiality”) with respect to Confidential Information that: (i) is or becomes a part of the public domain through no act or omission of the receiving Party; (ii) was in the receiving Party’s lawful possession without restriction prior to the disclosure and had not been obtained by the receiving Party either directly or indirectly from the disclosing Party; (iii) is lawfully disclosed to the receiving Party by a third party without restriction on the disclosure; or (iv) is independently developed by the receiving Party without using the Confidential Information.
5.4 Destruction or Return. Except as otherwise authorized or required in furtherance of the purposes of this Agreement, promptly upon a request by the disclosing Party, the receiving Party will destroy (and so certify it in writing) or return to the disclosing Party all Confidential Information and all documents or media containing any such Confidential Information and all copies or extracts thereof provided that the receiving Party shall be permitted to retain copies of any computer records and files containing any Confidential Information which have been created pursuant to automatic archiving and back-up procedures, or retain a back-up copy of such Confidential Information as required by law, rule, regulation or internal compliance policies, in which cases such Confidential Information shall continue to be subject to confidentiality obligations even after termination of this Agreement.
6. TERM AND TERMINATION
6.1 Term of Agreement. Unless earlier terminated pursuant to section 6.2 (“Termination for Cause”), this Agreement commences on the Effective Date and continues in force until all Orders executed in accordance with this Agreement have expired or been terminated.
6.2 Termination for Cause. Either Party will have the right to terminate this Agreement immediately upon written notice at any time if the other Party is in material breach of any warranty, term, condition or covenant of this Agreement and fails to cure that breach within 30 (thirty) days after written notice of that breach.
6.3 Effect of Termination.(i) Fees. If Truewind terminates this Agreement pursuant to section 6.2 (“Termination for Cause”), Truewind shall invoice Customer all amounts that have accrued for the terminated items prior to such termination, which were not previously invoiced, as well as all sums remaining unpaid under this Agreement. The Customer will pay such invoices in accordance with the terms of this Agreement. In no event will termination relieve Customer of the obligation to pay any Fees due to Truewind under this Agreement. (ii) Damages. Neither Party is liable to the other Party for any damages incurred by the other Party or any third parties as a result of the termination in conformity with this Section 5 (“Term and Termination”). (iii) Other Remedies. Termination or expiration is not an exclusive remedy and all other remedies will be available whether or not termination occurs.
7.1 Truewind Warranties. Truewind represents and warrants that the Services will be performed in a professional and workmanlike manner in accordance with generally accepted industry standards. In the event of a breach of the foregoing warranty, Truewind shall, as its sole obligation and entire liability and Customer’s exclusive remedy, at Truewind’ sole option and expense, re-perform the applicable Services in a manner that is compliant with such warranty, or, in the event Truewind is unable to do so after using commercially reasonable efforts, terminate all or part of the applicable Order and upon such termination, Truewind shall promptly refund Customer all Fees paid for the non-compliant Services. Claims under the foregoing warranty must be submitted by the Customer in writing within 30 (thirty) days of the performance of such Services in order to be considered.
7.2 DISCLAIMER OF WARRANTIES. TRUEWIND DOES NOT WARRANT THAT THE SERVICES, OR DELIVERABLES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. CUSTOMER ACKNOWLEDGES THAT THERE ARE RISKS INHERENT IN INTERNET CONNECTIVITY THAT COULD RESULT IN THE LOSS OF CUSTOMER’S PRIVACY, CONFIDENTIAL INFORMATION AND/OR CONTENT. EXCEPT AS SET FORTH IN SECTION 7.1 (“TRUEWIND WARRANTIES”) AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TRUEWIND PROVIDES THE SERVICES AND DELIVERABLES “AS IS”, WITHOUT WARRANTY OF ANY KIND, INCLUDING BUT NOT LIMITED TO, EXPRESS OR IMPLIED OR STATUTORY OR OTHER WARRANTIES OR CONDITIONS, INCLUDING WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND THOSE ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. CUSTOMER SHALL HAVE SOLE RESPONSIBILITY FOR THE ACCURACY, QUALITY, INTEGRITY, LEGALITY, RELIABILITY, APPROPRIATENESS AND OWNERSHIP OF ALL CUSTOMER CONTENT.
8. LIMITATION OF LIABILITY
8.1 PARTIES LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY LOSS OF USE, LOST DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, GOODWILL, DATA OR DATA USE, OR CLAIMS OF THIRD PARTIES) ARISING FROM THIS AGREEMENT, WHETHER UNDER THEORY OF CONTRACT, TORT, INCLUDING NEGLIGENCE, OR OTHERWISE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
8.2 TRUEWIND LIMITATION OF LIABILITY. TRUEWIND WILL NOT BE LIABLE FOR:
(i) CUSTOMER’S INABILITY TO USE THE SERVICES, OR DELIVERABLES, INCLUDING AS A RESULT OF ANY (i) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; OR (ii) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY CUSTOMER IN CONNECTION WITH THIS AGREEMENT; OR (iii) ANY UNAUTHORIZED ACCESS TO, ALTERATION OF, OR THE DELETION, DESTRUCTION, DAMAGE, LOSS OR FAILURE TO STORE ANY OF CUSTOMER’S CONTENT DUE TO CUSTOMER’S NEGLIGENCE AND OR MISCONDUCT; OR (iv) ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES WHICH MAY ARISE OUT OF ANY THIRD PARTY OR RESELLER SOFTWARE LICENSE AND / OR RELATED SERVICES.
8.3 TRUEWIND TOTAL AGGREGATE LIABILITY.GENERAL. NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT, TRUEWIND’ TOTAL AGGREGATE LIABILITY UNDER THIS AGREEMENT AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR ANY CLAIM OF ANY TYPE WHATSOEVER SHALL BE LIMITED TO PROVEN DIRECT DAMAGES CAUSED BY TRUEWIND’ GROSS NEGLIGENCE OR WILFUL MISCONDUCT IN AN AMOUNT NOT TO EXCEED THE AMOUNTS PAID TO TRUEWIND UNDER THIS AGREEMENT DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE DATE OF THE CLAIM; THE PROVISIONS OF THIS SECTION 8.3 ALLOCATE RISKS UNDER THIS AGREEMENT BETWEEN CUSTOMER AND TRUEWIND. TRUEWIND’ FEES FOR THE SERVICES AND/OR AMOUNTS PAID FOR SERVICES REFLECT THIS ALLOCATION OF RISKS AND LIMITATION OF LIABILITY.
9. GENERAL PROVISIONS
9.1 Entire Agreement. This Agreement, including Orders and Change Orders (if any), constitutes the entire agreement between the Parties with respect to the subject matter hereof, and supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter. No amendment to, supplement or modification of this Agreement will be binding unless in writing and signed by duly authorized representatives of both Parties. In the case of conflicts, discrepancies, errors or omissions among the Agreement, Order and the Change Order, the documents and amendments to them shall take precedence and govern in the following order: (a) Change Order; (b) Order; and (c) Agreement.
9.2 Interpretation. References to a provision, clause, section, or Order are to a provision, clause, section, or Order to this Agreement. References to this Agreement include its Orders (including referenced policies and/or guides). Words importing the singular include the plural and vice versa. Words importing a gender include every gender. The words and phrases “other”, “such as”, “including” and “in particular” shall not limit the generality of any preceding words or be construed as being limited to the same class as the preceding words where a wider construction is possible.
9.3 Headings. The caption and the headings to clauses, sections, parts, paragraphs and Orders are inserted for convenience only and shall be ignored in interpreting this Agreement.
9.4 Contracting Truewind Company, governing law and jurisdiction. Truewind entity with which Customer is contracting under this Agreement, to whom Customer should direct notices under this Agreement, the governing law applicable to this Agreement, including any lawsuit or disputes arising out of or in connection with it, without giving effect to any choice or conflict of law provision or rule, and which courts can adjudicate any such lawsuit, shall be determined based on where Customer has its registered offices:
IF CUSTOMER IS DOMICILED IN THE UNITED KINGDOM:
The company is contracting with: Truewind UK Limited
Company Number 9724658
9 Perseverance Works, Kingsland Road, London, E2 8DD United Kingdom.
The governing law is: The laws of England and Wales.
The courts having exclusive jurisdiction are: The courts of England and Wales.
IF CUSTOMER IS DOMICILED IN A COUNTRY IN NORTH AMERICA:
The company is contracting with:Truewind (USA) Inc.
1 Marina Park Drive, Suite 1410, Boston, MA 02210.
The governing law is: The Laws of the State of Delaware and the federal laws of the USA.
The courts having exclusive jurisdiction are: Any controversy or claim arising out of or relating to this Agreement or contract, or the alleged breach thereof, shall be settled by arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules. In the event of a dispute, controversy or claim arising out of or relating in any way to the Agreement, the complaining Party shall notify the other Party in writing thereof. Within thirty (30) days of such notice, management level representatives of both Parties shall meet at an agreed location to attempt to resolve the dispute in good faith. Should the dispute not be resolved within thirty (30) days after such notice, the complaining Party shall seek remedies exclusively through arbitration. The demand for arbitration shall be made within a reasonable time after the claim, dispute or other matter in question has arisen, and in no event shall it be made after two years from when the aggrieved party knew or should have known of the controversy, claim, dispute or breach. The number of arbitrators shall be one. The arbitration shall take place in New Castle County, Delaware. It is the intent of the parties that, barring extraordinary circumstances, arbitration proceedings will be concluded within one hundred and twenty days from the date the arbitrator is appointed. The arbitrator may extend this time limit in the interests of justice. Failure to adhere to this time limit shall not constitute a basis for challenging the award. Judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction.
IF CUSTOMER IS DOMICILED IN BRAZIL:
The company is contracting with: Truewind Brasil – Sistemas de Informação LTDA.
Rua Padre Carapuceiro, 733, Empresarial Center I, 8°andar, Boa Viagem, Recife/PE, CEP 51.020-280.
The governing law is: The laws of Brazil
The courts having exclusive jurisdiction are: City of Recife, Pernambuco, Brazil.
IF CUSTOMER IS DOMICILED IN ANY OTHER COUNTRY:
The company is contracting with: Truewind – Sistemas de Informação, S.A.
Tax ID PT503676985
Av. D. João II, nº 50 – 3º, 1990-095 Lisboa, Portugal.
The governing law is: The laws of Portugal.
The courts having exclusive jurisdiction are: City of Lisbon, Portugal.
9.5 Compliance with Laws. Customer agrees that Customer’s use of the Services and the Deliverables will comply with all applicable laws, including without limitation all applicable anti-corruption laws, anti-money laundering laws, antitrust laws, economic sanctions laws, export control laws, data protection and data privacy laws, and modern slavery and human trafficking laws. Truewind shall have the right to terminate this Agreement, without notice and without liability, for any perceived or actual breach of this clause.
9.6 Export Laws. Customer agrees that Customer’s use of the Services will comply with applicable export control and trade sanctions laws, rules and regulations, including without limitation the regulations promulgated by the U.S. Department of Commerce’s Bureau of Industry and Security (“BIS”) and the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”) (collectively, “Export Laws”). Customer represents and warrants that Customer is not (i) located or resident in a country or territory that is subject to comprehensive U.S. trade sanctions or other significant trade restrictions (including, without limitation, Crimea, Cuba, Iran, North Korea and Syria) (collectively, the “Sanctioned Countries”); or (ii) identified on any U.S. government restricted party lists (including without limitation the Specially Designated Nationals and Blocked Persons List, Foreign Sanctions Evaders List, and Sectoral Sanctions Identifications List, administered by OFAC, and the Denied Party List, Entity List and Unverified List, administered by BIS) (collectively, the “Restricted Party Lists”). Customer further certifies that Customer will not, directly or indirectly, export, re-export, transfer or otherwise use the Software (nor any direct product thereof) and/or the Services in violation of the Export Laws, or with any purpose prohibited by the same Export Laws, in any Sanctioned Country, to any person or entity on a Restricted Party List, or for any nuclear, chemical, missile or biological weapons related end uses. Customer acknowledges that the Services, or any feature or part thereof, may not be available for use in all jurisdictions and that Customer is responsible for complying with applicable Export Laws wherever Customer uses the Services. Truewind shall have the right to terminate this Agreement, without notice and without liability, for any perceived or actual breach of this clause.
9.7 Personal Data. If, in the course of providing the Services to Customer under the Agreement, Truewind and/or any of its Affiliates process Personal Data controlled by Customer, either as a Processor or Subprocessor, Customer shall comply with the data protection applicable laws.
9.8 Customer Reference. Customer acknowledges and agrees that Truewind may use Customer’s name and logo to identify Customer as a customer of Truewind in sales presentations, marketing materials and activities, including on Truewind’s website or otherwise by public announcements.
9.9 Notices. Any notice, consent, approval, or other communication intended to have legal effect to be given under this Agreement (“Notices”) must be in writing and will be delivered (as elected by the Party giving such notice): (i) by email to email@example.com or to the email address of the Customer provided in the Order (ii) by registered mail. Unless otherwise provided herein, all Notices will be deemed effective on the date of receipt (or if delivery is refused, the date of such refusal) if delivered by registered mail and at 9.00 am of the next business day after the date of the transmission by email. Notices hereunder will be sent to the contact and addresses set forth in the signature sections of this Agreement and/or in the applicable Order. Either Party may change the address to which Notices shall be sent by giving Notice to the other Party in the manner herein provided. Notices shall be written in the English language.
9.10 Relationship of Parties. The Parties are independent contractors, and not agents, employees or joint ventures of one another, and do not have any authority to bind the other Party, by contract or otherwise, to any obligation. Neither Party will represent to the contrary, either expressly, implicitly, by appearance or otherwise.
9.11 Assignment. This Agreement is not assignable or transferable by either Party without the prior written consent of the other Party, which shall not be unreasonably withheld. Any attempt by either Party to assign or transfer this Agreement without such consent shall be void. Notwithstanding, Truewind may freely assign or transfer this Agreement to any company that is a part of its group of companies or as a result of a merger or a sale of all or a substantial part of its share capital. In the case of any permitted assignment or transfer of or under this Agreement, this Agreement or the relevant provisions, as well as the existing Orders shall be binding upon, and inure to the benefit of, the successors, executors, heirs, representatives, administrators and assignees of the Parties hereto.
9.12 Solicitation. If, during the term of this Agreement and for a period of 12 (twelve) months thereafter, Customer hires, directly or indirectly, for any position, as an employee, consultant, or independent contractor a person that has been employed with Truewind, then Customer is deemed to have used Truewind selection and recruitment services and, therefore, agrees to pay a placement fee to Truewind in the amount of 50 % of the candidate’s estimated total first year’s compensation, including estimated commissions and bonuses, and any signing bonus. Such fee is not subject to reduction even if the candidate’s employment terminates.
9.13 Severability. If for any reason a court of competent jurisdiction finds any provision of this Agreement (including all Orders and addenda, if applicable), or portion thereof, to be unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible so as to affect the intent of the Parties, and the remainder of this Agreement or of the provision will continue in full force and effect, except to the extent such invalid provision or part of provision relates to essential aspects of the Agreement. The parties agree that such provision or portion thereof shall be substituted by a provision with an equivalent legal and economic effect.
9.14 Force Majeure. No Party shall be liable for, or considered to be in breach of this Agreement on account of, any failure or delay in performance of any of its obligations hereunder (except for the payment of money) if such failure or delay is due to acts of God, fires, flood, storm, explosions, earthquakes, general Internet outages, acts of war or terrorism, riots, insurrection, infectious diseases, intervention of any government or authority or any other reason where the failure to perform is beyond the reasonable control of and not caused by the negligence or intentional acts or omissions of the non-performing Party.
9.15 Waivers of Rights. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in writing signed by a duly authorized representative on behalf of the party claimed to have waived. No provision of any purchase order or other form employed or provided by Customer will supersede the terms and conditions of this Agreement and/or Order(s) executed with Customer, and any such document relating to this Agreement and/or Order(s) shall be for administrative purposes only and shall have no legal effect.
9.16 Survival. Clauses and/or sections 4 (“Intellectual Property Rights, Ownership and Title”), 5 (“Confidentiality”), 6.3 (“Effect of Termination”), 7.2 (“Disclaimer of Warranties”), 8 (“Limitation of Liability”), and 9 (“General Provisions”) of this Agreement shall survive termination, without prejudice to other obligations that, pursuant to the applicable law or to this Agreement, shall also remain in force after termination date.
9.17 Counterparts and Electronic Signatures. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original copy of this Agreement and all of which, when taken together, will be deemed to constitute one and the same Agreement, notwithstanding the fact that all parties are not signatories to the original or the same counterpart. The Parties hereby agree that this Agreement may be delivered by electronic signature (e.g. DocuSign, in portable data format – PDF – or in any other digital mean of identifying that party’s identity and approval of the counterpart) by any or both Parties in which case all Parties agree to rely on the receipt of such document so executed and delivered by electronic means as if the original had been received. The Parties hereby warrant and represent that such electronic signature is valid and legally binding in jurisdictions they may respectively be subject to, and they waive any potential right or claim against the validity of this Agreement on the basis of its electronic signature.