Service Agreement

City of London, the UK

This Service Agreement ("Agreement") is made by and between

  1. Haulmont Technology Limited registered under the laws of England and Wales with company number 06657184 whose registered office is at 35-37 William Road, London, NW1 3ER (“Haulmont"), and
  2. The Customer in the person of its representative authorized to place the Orders for Services (“the Customer”), hereinafter may also be referred to individually as “Party” or collectively as the “Parties”,

WHEREAS, the Customer desires to employ Haulmont from time to time to perform Services in connection with the Customer’s business activities ("Services"), and

WHEREAS, Haulmont is interested in furnishing Services for the Customer in accordance with this Agreement;

NOW, THEREFORE, IN CONSIDERATION of the mutual promises, conditions, terms and agreements contained in this Agreement, the sufficiency of which is hereby acknowledged, the Parties mutually agree as set forth below:

  1. Accepted Definitions and Interpretation
    1. For the purpose of this Agreement, the terms and definitions contained in Appendix A to this Agreement shall have the corresponding definitions given in the Appendix A.
    2. Article headings shall not affect the interpretation of the Terms and Definition.
    3. Unless the context otherwise requires:
      1. words in the singular shall include the plural and in the plural shall include the singular;
      2. a reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time;
      3. a reference to writing or written includes emails;
      4. a reference to one gender shall include a reference to the other genders;
      5. any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms; and
      6. a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person's personal representatives, successors and permitted assigns.
    4. This Agreement is comprised of the following:
      1. Main Body;
      2. Appendix A – Terms and Definitions;
    5. The Appendix A forms integral part of this Agreement and shall have effect as if set out in full in the Main Body of this Agreement. Any reference to this Agreement includes the Appendix A of this Agreement.
  2. Subject of the Agreement
    1. It is the intention of the Parties that this Agreement shall apply to the provision of the Services (except for some Services subject to separate agreements) delivered by Haulmont to the Customer and that such Services shall be subject to the terms and conditions set forth herein.
    2. Some particular Services may be provided to the Customer under separate Agreements.
    3. In the event that Haulmont renders any Services at the request of the Customer or with the permission of the Customer, the Parties agree that the provision of such Services shall be governed by and performed subject to the terms and conditions of this Agreement unless otherwise agreed by the Parties.
    4. Unless otherwise agreed by the Parties, any Services ordered by the Customer shall be deemed as Consulting Services.
    5. The Customer acknowledges and accepts that this Agreement is not a consumer or employment contract, but a "business-to-business" agreement and any results of the Services rendered by Haulmont under this Agreement shall be used by the Customer (its Affiliates) for business/professional purposes only, therefore utilizing the mentioned results for any other purposes (i.e. consumer purposes) shall not be allowed.
    6. Nothing in this Agreement shall compel Haulmont to provide any Services that:
      1. are (or may be considered) unlawful, fraudulent of have any unlawful or fraudulent purpose or effect;
      2. relate to any defamatory, obscene, offensive, discriminatory, hateful or inflammatory purpose or material;
      3. are not technically possible or are outside Haulmont's control (for example, if the Services relate to a third party library in the CUBA Platform); or
      4. infringe (or may infringe) the rights of any third party.
  3. Services
    1. In the event that the Customer wishes Haulmont to provide Services, the Customer shall place an order for particular Services (“the Order”) by one of the following ways:
      1. by making payment via the purchasing procedure on the Site, or
      2. by making payment against an invoice emailed by Haulmont to the email address (addresses) used by the Customer to contact Haulmont.
    2. At the moment of placing the Order the Customer is deemed to agree on the following principal conditions:
      1. the nature of the Services required (i.e. Training, Consulting, etc.);
      2. the scope of the Services that the Customer would like Haulmont to carry out;
      3. the number of Service Hours (except for Training);
      4. the Service Fee;
      5. the terms and conditions of this Agreement to the full extent.
    3. The Order shall only be deemed to be accepted by Haulmont when Haulmont issues a written acknowledgment of the Order to the Customer, which Haulmont may do, at its absolute discretion, by sending an email to the email address used by the Customer to contact Haulmont. The Commencement Date shall be deemed as the date when Haulmont has emailed the acknowledgement of the Order to the Customer. The Haulmont’s corresponding obligations to deliver the Services to the Customer shall come into force not sooner than on the Commencement Date. Each of the accepted Orders corresponds to a particular Commencement Date.
    4. Upon confirmation of the Customer’s Order in accordance with clause 3.3 (since the Commencement Date), the Parties shall be deemed to enter into the Service Agreement under the terms and conditions of this Agreement.
    5. The Customer may not amend or cancel an Order at any time after Haulmont has confirmed such Order (since the Commencement Date).
    6. In case if Haulmont:
      1. lacks the skillset, knowledge or expertise to provide the Services; or
      2. is (within its reasonable opinion) unable to provide the Services within the number of Service Hours remaining on the Customer's account (except for Training);
      3. is unwilling to provide the Services requested by the Customer,

      Haulmont shall notify the Customer of the same as soon as reasonably practicable and the Customer shall be entitled to receive a refund of the monies paid for the balance of any unused Service Hours remaining on the Customer’s account.

    7. The Services shall be provided remotely at all times, unless otherwise is expressly provided in this Agreement or agreed by the Parties.
    8. All dates, deadlines, schedules, or delivery time suggested by Haulmont in connection with provision of the Services shall be treated as approximate only. Haulmont shall not be liable for any loss or damage arising from any delay in delivery beyond such approximate dates.
    9. In the event of any conflict between the terms of the Order and this Agreement, this Agreement shall prevail.
    10. Working language of any Services is English.
  4. Training
    1. Where the Order includes Training, this Article 4 shall apply while Articles 5 and 6 shall not.
    2. In case if the Training selected, the Customer shall provide Haulmont with information about the number of Participants designated by the Customer to receive the Training.
    3. Training Services are provided by means of standard training courses split into a series of webinars or seminars available online or face-to-face on a call-out basis.
    4. Online Training schedule is fixed as shown on the Site periodically and may be revised from time to time at the discretion of Haulmont.
    5. In case of inconvenience of the existing fixed Training schedule, the Customer may purchase Training provided on an adaptable schedule. In that case, after the Commencement Date Haulmont shall contact the Customer promptly to arrange the particular schedule on which the Training is to be supplied.
    6. Upon purchase by the Customer of face-to-face Training on a call-out basis, the corresponding offline Training schedule shall be agreed by the Parties within 10 (ten) Business Days after the Commencement Date. Any further amendments to the offline Training schedule may be made by agreement of the Parties.
    7. The Training Service Fee shown on the Site (the Standard Fee) shall be applied to online Training only. In case of providing Training on a call-out basis, the Standard Fee shall be accrued with corresponding travel and accommodation costs incidental to sending Haulmont’s specialist(s) on the site.
    8. In consideration of the Training Service Fee, Haulmont grants to the Customer's Participants a non-exclusive, non-transferrable license to access, view, receive and use the Training in accordance with the Training Schedule. The validity of the license mentioned in this clause shall be limited within an actual duration of a course of Training provided by Haulmont to the Customer.
    9. Once the Training schedule has been arranged, Haulmont shall send to the Customer access information for the Training. The Customer shall (and shall procure that each Participant shall) keep such access information secret, secure and confidential. Haulmont reserves the right to disable the Customer's (or any of its Participants') access to the Training if, in Haulmont's reasonable opinion, the Customer (or any of its Participants) have failed to comply with this clause.
    10. The Customer may not (and shall procure that its Participants do not):
      1. rent, lease, create derivative works of, distribute, sell, sub-license or transfer the Training (or any part thereof);
      2. remove, amend or obscure any of proprietary or other notices of Haulmont included in or forming part of the Training.
    11. The Customer is responsible for:
      1. ensuring that each Participant has all necessary technical ability and knowledge to access and comprehend the Training;
      2. arranging its Participants' access to the Training in accordance with the Training Schedule.
    12. If the Training (or any part thereof) is cancelled by Haulmont, or if Participants cannot connect to the Training (or any part thereof) due to technical issues caused by Haulmont, the Customer's sole remedy is that Haulmont will re-schedule the Training/part-Training or make a full refund of the Training Service Fee, whichever option is chosen by the Customer. If a Participant misses the Training (or any part thereof) for any other reason, Haulmont is not responsible for re-scheduling the Training/part-Training and shall not be responsible for providing any refund or other remedy.
  5. Consulting
    1. Where the Order includes Consulting, this Article 5 shall apply while Articles 4 and 6 shall not.
    2. Consulting may be provided both online and off-line via calls, chats, exchange of emails, etc.
    3. Unless otherwise agreed by the Parties, in addition to communications with the Customer by any means (including all the necessary arrangements), Consulting is deemed as including activities given below:
      1. Regarding to handling a problem posed by the Customer:
        1. Problem identification,
        2. Revealing causes of the problem,
        3. Finding solutions,
        4. Evaluation of the selected solutions and its ranking,
        5. Providing the Customer with advices on the problem solving,
        6. Creation of any products, components, software, materials or other Deliverables,
      2. Regarding to completion of a task set by the Customer:
        1. Identification of scope of the task,
        2. Setting the success criteria,
        3. Finding solutions,
        4. Evaluation of the selected solutions and its ranking,
        5. Providing the Customer with advices on the task solution,
        6. Creation of any products, components, software, materials or other Deliverables,
      3. Regarding to delivery of information required by the Customer:
        1. Identification of relevant information sources,
        2. Gathering information and data processing,
        3. Providing the Customer with the required information,
    4. In respect to means and methods of carrying out the activities set out in clauses 5.3.1 to 5.3.3 including setting of duration of such activities all the mentioned activities are deemed as within the Haulmont’s sphere of competence and Haulmont reserves the rights to conduct the activities at its own opinion.
    5. After the Commencement Date, Consulting shall be provided upon request of the Customer. The initial response on a new Customer’s request shall be provided within one Business Day coming after the day of the corresponding Customer’s request submission. In the event of a delay with the responding, the Customer shall be credited one hour of free consultancy per each incident.
    6. For the purpose of the Consulting Service Fee calculation, the minimum duration of a Consulting session shall be deemed as thirty (30) minutes regardless of actual time of such session. In the event of actual time of a Consulting session is more than 30 minutes but less than 60 minutes, the duration of a Consulting session shall be deemed as equal to one (1) full hour, and so on.
    7. For the purpose of receiving Consulting, the Customer shall appoint its contact persons in number no more than two individuals. The nomination of the contact person(s) shall be made via email in advance.
    8. By default, all communication goes through a dedicated section of the Forum. Other means of communication may be used as determined by the Parties in a separate agreement.
    9. The Parties agree that Consulting Services shall be provided on the Business Days within the Business Hours.
    10. As the Consulting Services rendered, Haulmont shall provide a monthly report to the Customer (“Monthly Report”), setting out:
      1. the Consulting Services that have been provided to the Customer in the preceding month;
      2. the number of Service Hours used in carrying out those Consulting Services; and
      3. the number of remaining Service Hours on the Customer's account.M
    11. The Parties acknowledge that whether neglecting, declining, or contesting of a Monthly Report by the Customer shall not affect the quality of the Services estimated pursuant to Article 7 of this Agreement.
  6. Single Incident Support
    1. Where the Order specifies the Single Incident Support, this Article 6 shall apply while Articles 4 and 5 shall not.
    2. The Single Incident Support is limited with investigation of one (1) Incident raised by the Customer. The Customer may purchase more than one Single Incident Support Services. The Single Incident Support Services are limited with the actual number of the corresponding Single Incident Support Services purchased by the Customer (the Incident Limit).
    3. The Support shall be provided remotely and in respect of Supported Releases only, unless otherwise is agreed by the Parties.
    4. As part of the Support, Haulmont shall:
      1. promptly investigate and respond to Incidents raised by the Customer (as further described below);
      2. use commercially reasonable efforts to correct Critical Defects and/or Non-Critical Defects, in accordance with the procedure described in this Article 6;
    5. The Customer Representative may request Support by specifying the nature of the incident. Following notification of an Incident from a Customer Representative, Haulmont will provide an initial response to an Incident within the Response Time. Haulmont's initial response may include requests for further information from the Customer in respect of the Incident.
    6. Each report of an Incident from the Customer Representative shall include a description of the question, problem or difficulty that the Customer is experiencing in relation to the CUBA Platform and the system operating conditions in which the problem or difficulty may be replicated (where applicable). The Customer shall provide HaulHHaulHaulmont with such output and other data, documents, information and assistance as are reasonably necessary
      1. to assist Haulmont to reproduce the problem/difficulty that the Customer is experiencing (i.e. the subject of the Incident) and
      2. to respond to the Customer's request for Support.
      For the avoidance of doubt, Haulmont shall not be obliged to investigate and/or respond to Incidents where the above information has not been provided by the Customer in full.
    7. For the avoidance of doubt, the Support relates to the CUBA Platform only and shall not extend to providing Support in respect of any of the Customer's products (whether created using the CUBA Platform or otherwise), such as Derived Software. Haulmont reserves the right to refuse investigation of an Incident, if such investigation would require reviewing or debugging of a Customer's project code in the parts not directly interacting with CUBA Platform Application Programming Interface and/or analysis of the Customer's business plan or model.
    8. If upon investigation of an Incident, Haulmont confirms that the Incident was caused by a defect in the CUBA Platform, but Haulmont has determined (at its reasonable discretion) that such defect is a Non-Critical Defect:
      1. Haulmont will notify the Customer if the defect can be fixed.
      2. Subject to clause 6.8.1 Haulmont will issue a Fix Release, within one (1) month from the date that the defect was confirmed as a Non-Critical Defect by Haulmont.
      3. Haulmont may refuse to fix the defect if in its reasonable opinion:
        1. the fix is not technically possible or is outside of Haulmont's control (for example, if the defect arises due to a third party library in the CUBA Platform);
        2. the defect cannot be fixed with commercially reasonable efforts.
      4. Subject to clause 6.8.3 the Customer deсides whether the prepaid Support Fee shall be refunded by Haulmont or the Incident will not be counted as part of the Incident Limit.
    9. If, upon investigation of an Incident, Haulmont determines (at its reasonable discretion) that the Incident was caused by a Critical Defect in the CUBA Platform Haulmont will issue a Fix Release within three (3) Business Days from the date that the defect was confirmed as a Critical Defect by Haulmont.
    10. If Haulmont does not respond to a reported Incident in accordance with clause 6.5, the Customer deсides whether the prepaid Support Fee shall be refunded by Haulmont or the Incident will not be counted as part of the Incident Limit.
    11. If a Fix Release is not released on time in accordance with clause 6.8.2 or 6.9 the Customer deсides whether the prepaid Support Fee shall be refunded by Haulmont or the Incident will not be counted as part of the Incident Limit.
    12. The Parties agree that the Support shall be provided on Business Days within Business Hours from 6:00 AM to 4:00 PM UK Time (GMT+00:00).
    13. Following notification of an Incident from a Customer Representative, Haulmont shall investigate and respond to the Incident within eight (8) Business Hours after the Incident has raised by the Customer (the Response Time).
    14. Release Support Period is one (1) year.
    15. The number of the Customer Representatives is limited with 1 (one) individual.
  7. Quality
    1. Any Services delivered under this Agreement shall be rendered with due quality in compliance with: (a) applicable provisions of the governing rules of law; (b) this Agreement and (c) quality standard established in IT industry.
    2. Taking into account that by its nature the Services are rendered by Haulmont and consumed by the Customer simultaneously, the Parties agree that quality of the Services shall be assessed by the Customer during such Services are being delivered by Haulmont.
    3. In cases where in the course of rendering the Services any Deliverables are created by Haulmont (whether alone or jointly), the quality of such Deliverables shall not be taken into account for evaluation of quality of the Services rendered under the Agreement.
    4. If the Customer has comments to make on the Services provided, the Customer shall send to Haulmont a written motivated refusal to accept the Services listing their defects and deficiencies within the next five (5) Business Days following the day of such Services were delivered by Haulmont.
    5. If within the period specified in clause 7.4. the Customer fails to send a written motivated refusal to accept the Services, the Services shall be deemed to have been provided by Haulmont properly and in full.
    6. Notwithstanding anything contained in this Agreement to the contrary, it is understood by the Customer that Haulmont does not warrant that the Services will accomplish any particular result that the Customer may figure on.
    7. Interpretations, research, analysis, opinions, recommendations, designs, analyses, programs, models, advice or interpretational data (“Interpretations and Recommendations”) furnished by Haulmont during rendering the Services hereunder are opinions based upon inferences from empirical relationships and assumptions, and industry practice, which inferences, assumptions and practices are not infallible. Accordingly, Haulmont does not warrant the accuracy, correctness or completeness of any Interpretations and Recommendations, or that the Customer’s reliance or any third party’s reliance on the Interpretations and Recommendations will accomplish any particular results. The Customer assumes all responsibility for the reliance upon and the use of the Interpretations and Recommendations and for all decisions based thereon, and the Customer shall release, indemnify, defend and hold Haulmont and its Affiliates harmless from and against any claims arising out of any such decisions and the reliance on or the use of any such Interpretations and Recommendations.
  8. Payments and charges
    1. The Service Fee shall be calculated in accordance with Haulmont's estimate/quotation for the Services or, in the absence of an estimate/quotation, in accordance with Haulmont's price list (which is available on the Site) at the Commencement Date. All Service Fees exclude value added tax chargeable for the time being ("VAT"). VAT shall be paid in addition to the Service Fee, where VAT is applicable (for UK residents only).
    2. Haulmont reserves the right to alter the Service Fee at any time, save that Haulmont shall not alter the Service Fee for the corresponding Services since the particular Commencement Date.
    3. Unless otherwise agreed with Haulmont, the Customer may only pay the Service Fee using the accepted payment methods listed on the Site.
  9. Intellectual Property Rights and License
    1. All Intellectual Property Rights in Training materials, the CUBA Software and the CUBA Platform (“Haulmont Products”) shall belong to Haulmont and the Customer shall have no rights in respect of any of the Haulmont Products except as expressly granted under this Agreement.
    2. For the avoidance of doubt, there is no transfer of any of the Intellectual Property Rights intended in this Agreement and execution of this Agreement by Haulmont does not convey or grant any right, title, interest or license to any proprietary rights contained in the Haulmont Products, including without limitation the right to re-engineer, reproduce any part of the Haulmont Products provided under this Agreement.
    3. Unless otherwise is expressly set out in this Agreement, any Intellectual Property Rights and proprietary rights that are learned, created or developed including, without limitation all improvements on any Haulmont Products that result during the relationship between Haulmont and the Customer contemplated under this Agreement (the “Discovered IP”), including without limitation any Discovered IP that is developed by, arise from or connected to the consultants or employees of Haulmont shall be the solely and exclusively owned by Haulmont and the Customer shall have no interest, right or entitlement in or to such Discovered IP. Regarding to any Deliverables set out in clauses 5.3.1 (f) or 5.3.2 (f) Haulmont grants to the Customer worldwide, irrevocable, non-exclusive license to use, duplicate, modify, distribute or sub-license such Deliverables.
    4. Nothing contained in this Agreement will be deemed to grant the Customer any right, title or interest in the trademarks, trade name, service marks, proprietary words, or symbols which the other may have adopted or used at any time in the course of its business.
  10. Limits of liability
    1. This Article 10 sets out the liability of each Party to the other in respect of:
      1. any breach of the Agreement, howsoever arising;
      2. any use made of the Services (or any part of them);
      3. any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Agreement; and
      4. any other liability (including non-contractual) howsoever arising under any legal theory whatsoever, arising under or in connection with the Agreement.
    2. Nothing in the present Agreement shall exclude or limit either Party's liability for:
      1. death or personal injury resulting from negligence; or
      2. fraud or fraudulent misrepresentation or willful default; or
      3. for any other matter for which it would be unlawful for either Party to exclude or limit or attempt to exclude or limit its liability.
    3. Subject to clause 10.2, neither Party shall under any circumstances whatsoever be liable to the other Party, whether in contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, and/or otherwise howsoever arising under any legal theory whatsoever, for any of the following losses (in each case, whether direct or indirect):
      1. loss of profit or revenue;
      2. loss of or damage to reputation or depletion of goodwill;
      3. loss of business;
      4. loss of contracts or loss of business opportunity;
      5. loss of anticipated saving;
      6. any losses arising in connection with any third party contract or arrangement (e.g. payments (e.g. penalties) due to be paid/paid to any third party under any contract or arrangement);
      7. wasted management and/or staff time and/or office time;
      8. nor any special, indirect, or consequential loss, cost, damage, charge or expense suffered by the either Party that arises under or in connection with the Agreement.
    4. Notwithstanding the other provisions of this Agreement the total liability of Haulmont (its Affiliates) before the Customer (its Affiliates) with respect to any expenses, costs and losses, directly or indirectly connected with non-performance (undue performance) by Haulmont (its Affiliates) of its obligations to perform the Agreement, or directly or indirectly connected with tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise howsoever under any legal theory whatsoever arising out of or in connection with the Agreement shall in no event be greater than a sum equal to the total Service Fee paid by the Customer to Haulmont under this Agreement or $50,000, whichever is greater, and the Customer hereby exempts Haulmont (including its Affiliates) from liability in excess of the said amount.
    5. The Customer shall not be entitled to demand from Haulmont (its Affiliates), and Haulmont (its Affiliates) shall be entitled not to perform any demands directly not connected with performance by Haulmont (its Affiliates) of the conditions of this Agreement. The Parties acknowledge that any liability may be placed on Haulmont (its Affiliates) exclusively in connection with non-performance (undue performance) by Haulmont (its Affiliates) of their obligations under this Agreement.
    6. All references to Haulmont in this Article 10 shall, for the purposes of this Article only, be treated as including all employees, officers, subcontractors and suppliers of Haulmont (its Affiliates), all of whom shall have the benefit of the exclusions and limitations of liability set out in this Article.
  11. Assignment and subcontracting
    1. The Customer shall not, without the prior written consent of Haulmont, assign, transfer, charge, mortgage, subcontract, sub-license, declare a trust of or deal in any other manner with all or any of its rights or obligations under the Agreement.
    2. Haulmont may at any time and at its discretion, assign, transfer, charge, mortgage, subcontract, declare a trust of or deal in any other manner with all or any of its rights or obligations under the Agreement.
    3. It is expressly understood that Haulmont is an independent contractor and that neither Haulmont nor anyone employed by Haulmont shall be deemed for any purpose to be an employee, agent, partner, servant or representative of the Customer.
  12. Duration and Termination
    1. This Agreement shall remain in full force and effect until terminated by either Party in accordance with the provisions of this Article 12 or as otherwise provided for in this Agreement.
    2. Either Party may terminate this Agreement without cause by giving the other Party sixty (60) calendar days prior written notice.
    3. Either Party may terminate without cause any Customer’s Order after the corresponding Commencement Date by Haulmont by giving the other Party thirty (30) days prior written notice.
    4. Notwithstanding anything to the contrary contained herein, Haulmont has the right to terminate this Agreement in a unilateral extrajudicial order without any claims for losses. In that case Haulmont undertakes to send to the Customer the corresponding written notice of termination of this Agreement in 20 (twenty) calendar days prior to date of termination. To the date of termination of the Agreement Haulmont has the right to stop to render Services under this Agreement, and the Customer refuses of any claims to the Haulmont concerning such termination.
    5. Without prejudice to any rights that have accrued under the Agreement or any other rights or remedies which the Parties may have, either Party may at any time terminate the Agreement with immediate effect by giving written notice to the other Party if:
      1. the other Party is subject to an Insolvency Event;
      2. the other Party ceases, or threatens to cease, to carry on all or substantially the whole of its business;
      3. the other Party commits an irremediable material breach of any of the terms of the Agreement , or a material breach which is remediable and fails to remedy that breach within a period of thirty (30) days after being notified in writing to do so.
    6. On termination of the Agreement for any reason:
      1. if the Agreement has been terminated by the Customer, Haulmont shall refund to the Customer (on a pro-rata basis) any Service Fee that the Customer has paid in advance of the Services which have not been delivered;
      2. the accrued rights, remedies, obligations and liabilities of the Parties as at termination shall not be affected, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination; and
      3. Articles and clauses which expressly or by implication have effect after termination shall continue in full force and effect, including this clause 12.6(c), Article 1 (Accepted Definitions and Interpretation); Article 9 (Intellectual Property Rights and License); Article 10 (Limits of Liability); Article 16 (Notices); Article 17 (Governing Rules of Law and Jurisdiction), and Article 18 (Miscellaneous).
  13. Entire Agreement
    1. The Agreement constitutes the entire agreement between the Parties and supersedes and extinguishes all previous drafts, arrangements, understandings or agreements between them, whether written or oral, relating to the subject matter of the Agreement.
    2. Any samples, drawings, descriptive matter or advertising issued by Haulmont, and any descriptions or illustrations contained in Haulmont's website, catalogues, quotations/estimates and/or brochures, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Agreement or have any contractual force.
    3. All Agreements shall be on the terms and conditions contained in this Agreement. Therefore, any other terms and conditions (including any terms or conditions which the Customer purports to apply or seeks to impose or incorporate orally, or under any purchase order, confirmation of order, specification or other document, or which are implied by trade, custom, practice or course of dealing) shall be excluded and deemed irrelevant to relationships of the Parties under this Agreement.
    4. Each Party acknowledges that, in entering into the Agreement, it does not rely on, and shall have no remedies in respect of, any representation or warranty (whether made innocently or negligently) that is not set out in the Agreement. Each Party agrees that its only liability in respect of those representations and warranties that are set out in the Agreement (whether made innocently or negligently) shall be for breach of contract.
    5. Nothing in this Article 13 shall limit or exclude any liability for fraud or other crimes.
  14. Severance
    1. If any arbitration institution, or court, or competent authority finds that any provision of the Agreement (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Agreement shall not be affected.
    2. If any invalid, unenforceable or illegal provision of the Agreement would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
  15. Force majeure
    1. A Party, provided that it has complied with the provisions of clause 15.2, shall not be in breach of the Agreement, nor liable for any failure or delay in performance of any obligations under the Agreement (and, subject to clause 15.3, the time for performance of the obligations shall be extended accordingly) arising from or attributable to acts, events, omissions or accidents beyond its reasonable control ("Force Majeure Event"), including but not limited to any of the following:
      1. acts of God, including but not limited to fire, flood, earthquake, windstorm or other natural disaster;
      2. war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, breaking off of diplomatic relations or similar actions;
      3. terrorist attack, civil war, civil commotion or riots;
      4. nuclear, chemical or biological contamination or sonic boom;
      5. fire, explosion or accidental damage;
      6. adverse weather conditions;
      7. collapse of building structures, failure of computers or vehicles;
      8. any labour dispute, including but not limited to strikes, industrial action or lockouts;
      9. non-performance by suppliers or subcontractors (other than by companies in the same group as the Party seeking to rely on this sub-clause); and
      10. interruption or failure of utility service, including but not limited to electric power, gas or water.
    2. Any Party that is subject to a Force Majeure Event shall not be in breach of the Agreement provided that:
      1. it promptly notifies the other Party in writing of the nature and extent of the Force Majeure Event causing its failure or delay in performance;
      2. it uses reasonable endeavours to mitigate the effect of the Force Majeure Event, to carry out its obligations under the Agreement in any way that is reasonably practicable and to resume the performance of its obligations as soon as reasonably possible.
    3. If the Force Majeure Event prevails for a continuous period of more than three (3) months, either Party may terminate the Agreement by giving sixty (60) days written notice to all the other Party. On the expiry of this notice period, the Agreement will terminate. Such termination shall be without prejudice to the rights of the Parties in respect of any breach of the Agreement occurring prior to such termination.
  16. Notices
    1. All notices and documents in connection with this Agreement shall be executed in printed or electronic/digital form and may be delivered both by mail service and via electronic means including email or other Internet-based communication tools.
    2. The provisions of this Article 16 shall apply to the service of any proceedings or other documents in any legal action.
  17. Governing rules of law and jurisdiction
    1. Any relationships between the Parties to this Agreement, including those related to its conclusion, existence, validity, interpretation, execution, breach, refusal to perform, or termination shall be governed by the UNIDROIT Principles of International Commercial Contracts (2016) and, with respect to issues not covered by such Principles, by the law of England and Wales.
    2. In case of any inconsistency between the provisions of the UNIDROIT Principles and this Agreement, this Agreement shall prevail.
    3. The Parties irrevocably agree that any dispute, controversy or claim arising out of or in connection with this Agreement, including any question regarding its conclusion, existence, validity, interpretation, execution, breach, refusal to perform, or termination, and including non-contractual disputes or claims, shall be referred to and finally resolved by arbitration under the LCIA Rules, which Rules are deemed to be incorporated by reference into this clause. The number of arbitrators shall be one. The seat, or legal place, of arbitration shall be the city of London, the United Kingdom. The language to be used in the arbitral proceedings shall be English. Judgment upon the award rendered by the arbitrator may be entered by any court having jurisdiction thereof.
  18. Miscellaneous
    1. Waiver

      No failure or delay by a Party to exercise any right or remedy provided under the Agreement or by the governing rules of law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.

    2. Variation

      No variation of the Agreement shall be effective unless it is in writing and signed by the Parties.

    3. Third-party rights

      A person who is not a Party to the Agreement shall not have any rights under the Agreements to enforce any term of the Agreement.

    4. No partnership or agency

      Nothing in the Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the Parties, constitute any Party the agent of another Party, nor authorize any Party to make or enter into any commitments for or on behalf of any other Party.

    5. Counterparts

      This Agreement may be executed in any number of counterparts, each of which when executed and delivered shall constitute an original of this Agreement, but all the counterparts shall together constitute the same Agreement.

 

Appendix A. Terms and Definitions

 

Affiliate

any Entity that controls, or is controlled by a Party, or an Entity which controls or is controlled by another Entity which controls a Party, an Entity shall be deemed to control another Entity if such Entity possesses, directly or indirectly, the power to direct or cause the direction of the management and policies of such other Entity, whether through the ownership of voting securities, by contract or otherwise.

Agreement

the agreement of repayable rendering of Services which Haulmont (the Contractor) and the Customer entered into.

Business Day

every Monday to Friday, except 31st December, 1st and 2nd January, 1st and 9th May.

Business Hours

the hours of 8:00 AM to 5:00 PM UK Time (UTC+00:00) on Business Days.

Critical Defect

a reproducible fault or defect in the CUBA Platform only (and not Derived Software), which prevents from using a material part of the functionality of the CUBA Platform or a material part of the functionality of Derived Software, where there is no reasonable way to work around the fault or defect.

CUBA Platform

the computer software developed and owned by Haulmont or its licensors, the specification of which is available at the domain name address www.cuba-platform.com/documentation. The CUBA Platform is aimed at software developers and provides them with a number of tools and libraries (comprising pre-built functions, components and data structures in the form of pre-written source code), that speed up the creation and development of software.

CUBA Software

CUBA Studio, CUBA Studio Premium and/or CUBA Add-ons. Cuba Platform shall not be referred to as Cuba Software.

Customer

An Entity ordering the Services for business and (or) professional purposes under the corresponding Agreement.

Customer Representative

an individual or individuals, nominated by the Customer from time to time, who is entitled to report Incidents, subject to the maximum permitted number of Customer Representatives at any one time, as detailed in the Agreement.

Deliverables

any software, materials and/or documentation created by Haulmont (whether alone or jointly) in the course of providing the Services to the Customer, but excluding (for the avoidance of doubt) the CUBA Platform including any release and/or modification thereof.

Derived Software

any software program that refers to, depends on, incorporates or is based on all or part of CUBA Add-ons, whether explicitly or implicitly and whether or not in combination with other libraries, frameworks or components other than CUBA Platform, CUBA Studio and/or CUBA Studio Premium.

Entity

a company, corporation, or other legal entity duly established pursuant to the applicable domestic laws of the place of incorporation

Fix Release

a release of the CUBA Platform containing a fix/correction of one or more defects or errors in the CUBA Platform and which, from time to time, may (at Haulmont's discretion) contain changes that have been requested by the Customer or other customers of Haulmont.

Forum

the support forum for the CUBA Platform, which is operated by Haulmont and located on the Site at www.cuba-platform.com/support.

Incident

an enquiry (whether or not in relation to an alleged defect in the CUBA Platform) made by the Customer to Haulmont related to an individual matter arising out of the Customer's use of the CUBA Platform.

Insolvency Event

In respect of the relevant Party:

  1. suspends, or threatens to suspend payment of its debts or is unable to pay its debts or has no reasonable prospect of doing so (within the meaning of  section 123 or 268 of the Insolvency Act 1986);
  2. commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with any of its creditors;
  3. a notice is given, a resolution is passed, or an order is made for or in connection with the winding up, liquidation, administration or dissolution of that party (other than for the purposes of amalgamation or reconstruction);
  4. a creditor or encumbrancer attaches or takes possession of, or a distress, execution or sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets;
  5. a person or floating charge holder over the assets of that party has become entitled to appoint or has appointed an administrative receiver over the assets of that party;
  6. any event occurs or proceeding is taken in respect of that party in any jurisdiction which has an effect equivalent to or similar to any of the above events in a to e (inclusive) above.

Intellectual Property Rights

any and all confidential and patented information and all relevant rights including inventions, rights to inventions, ideas, trade secrets, computer software, formulations, production processes, business plans and strategies, data, materials, know-how, patents, utility models, design patents, production prototype patent applications, registered production prototypes, copyrights and related rights, trademarks and service marks, trade names, business names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, topography rights, moral rights, rights in the confidential information (including know-how and trade secrets), and any other intellectual property rights, and all other similar results of intellectual work regardless whether the same were developed by Haulmont or its Affiliate(s), are owned by it or used by license, and in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world.

Month

Thirty (30) consequtive calendar days.

Non-Critical Defect

any reproducible fault in the CUBA Platform, other than a Critical Defect.

Order

the Customer's offer to Haulmont for rendering particular Services.

Order placement

the Order is deemed as placed by the Customer in each of the cases given below:

(i) by making payment via the purchasing procedure on the Site, or

(ii) by making payment against an invoice emailed by Haulmont to the email address used by the Customer to contact Haulmont, or

(iii) in the event that Haulmont renders any Services at the request of the Customer or with the permission of the Customer.

Participant

any individual chosen by the Customer to receive the Training.

Parties

the parties of the Agreement including Haulmont, on the one hand, and an Entity desiring to order the Services, on the other hand.

Personalized Release

a release by Haulmont of the CUBA Platform, following a written request from the Customer. Such releases:

(a) are based on a Supported Release nominated by the Customer;

(b) contain only the changes that have been specifically requested by the Customer and agreed by Haulmont in accordance with the Agreement;

For the avoidance of doubt, a Personalized Release does not contain any other changes to the CUBA Platform (for example changes requested by other customers of Haulmont).

Release Support Period

the period of time stipulated by the Agreement, which determines whether a release of the CUBA Platform is the Supported Release.

Response Time

the maximum time period, as set out in the Agreement, within which Haulmont must provide an initial response to an Incident.

Services

professional services provided by Haulmont to the Customer, comprising Training, Consultancy, Development, troubleshooting, bug-fixing, Support, project management and other services in respect of the CUBA Platform provided under the Agreement.

Service Fee

the fees payable by the Customer for the Services provided under the Agreement.

Service Hours

the total number of hours for which Haulmont shall provide the benefit of the Services to the Customer, as specified in the Agreement.

Site

the website available from time to time at the domain name address www.cuba-platform.com.

Support

the remote, off-site support Services provided by Haulmont to the Customer in respect of the Supported Release.

Supported Release

a release of the CUBA Platform where the first occurrence of a release with the same first two digits in number was issued by Haulmont within the Release Support Period, calculated at the date that the Customer reports an Incident to Haulmont or requests a Personalized Release (as the case may be). For example, if the Customer reports an Incident on 1 May 2016 and the Release Support Period is 12 months, and the release 6.5.0 has been issued after 1 May 2015, all releases with numbers 6.5.x would be “Supported Releases”.

Training

the Services comprised of a standard online CUBA Platform training course, conducted by Haulmont employee(s), consisting of a series of webinars or seminars available online or face-to-face on a call-out basis.

Training Schedule

the schedule agreed by the Parties in accordance with the Agreement on which the Training is to be supplied.