1. SUBJECT OF THE TERMS
1.1. These terms and conditions (the “Terms”) regulate how an Aliz entity (which for the purposes of these Terms shall mean any company directly or indirectly owned or controlled by DS International Group Zrt., a private company limited by shares registered and operating in Hungary, having its registered office at H-1143 Budapest, Gizella út 42-44, Hungary, registered with the Metropolitan Court of Budapest, Hungary under company registration no. 01-10-049743, such as Aliz Tech Kft., Aliz Cloud Kft., Aliz Labs Kft., Aliz MSP Kft., Aliz Tech GmbH, Aliz Technologies Pte. Ltd.) as service provider (“Aliz”) may provide software development and various other IT services to a client (the “Client”) subject to requirements specification, on a fixed-price basis. Aliz and the Client are hereinafter jointly referred to as the “Parties”, and individually, a “Party”.
1.2. Aliz and the Client will enter into an order form or statement of work (each a “SOW”), which will specify the type of services that the Client orders from Aliz (the “Services”), the specification of the work product and other deliverables to be delivered by Aliz (the “Product” and/or the “Deliverables”) and the Client’s requirements concerning the Services (such as the delivery deadline) and the Deliverables/Product. The SOW shall set out the Fee payable by the Client to Aliz for the duly performed Services and the duly delivered Product/Deliverables.
1.3. The agreement between Aliz and the Client (the “Agreement”) will be comprised of the SOW and these Terms. The Agreement constitutes the entire agreement between the Parties in respect of its subject-matter and supersedes all other previous arrangements between the Parties in respect of its subject-matter, whether oral or written (including any previously executed non-disclosure agreements), not included in the Agreement. No purchase order or quotation or other similar document may modify or supplement the Agreement or add to or vary the terms of the Agreement.
2.SOW
2.1. The Client shall order any Service/Product/Deliverable in writing, by way of signing the SOW with Aliz. The Agreement enters into force upon the signing of the SOW by both Parties, and Aliz shall start providing the Service as of such date.
2.2. In case of a discrepancy between the provisions of these Terms and the SOW, the provisions of the SOW shall prevail.
2.3. The Client shall specify its business and functional requirements concerning the software, software function or software component to be developed by Aliz in the requirements specification (the “Requirements Specification”) submitted to Aliz. In the relevant SOW, the Parties will agree on the specifics of the development of the Product/Deliverables and the Requirements Specification shall form part of the SOW. The Parties may agree under an SOW that Aliz may provide the Client with professional support and help concerning the creation of the Requirements Specification. In this case, Aliz shall also be entitled to a Fee for the Services carried out in connection with the creation of the Requirements Specification.
2.4. The offer prepared by Aliz shall qualify as Confidential Information (as defined below) and constitutes exclusive intellectual property of Aliz. If the Client does not respond to the offer, it shall not be deemed as an acceptance of the offer by the Client and Aliz shall not be required to provide any Service.
2.5. Aliz shall carry out the logical planning, development, customization and delivery of the Product/Deliverables in accordance with the terms and conditions specified in the Requirements Specification. The Requirements Specification shall serve as the criteria for the delivery and acceptance of the Product/Deliverables, and the Client may only make any change in the Requirements Specification in accordance with the change management process hereunder.
2.6. The Client’s failure to meet the assumptions or fulfill the prerequisites specified in the SOW and herein fundamentally affects the deadline for the completion of the Services, Aliz’s ability to perform the Services and the Fee for the performance thereof (and the Client acknowledges that one of the basic assumptions applicable to all SOWs is the timely response expected from the Client as per Section 8.2); therefore, if the Client fails to meet the assumptions or fulfill the prerequisites for a reason within the Client’s interests, the deadlines shall be extended accordingly, and Aliz shall be exempted from the liability for any default to the extent arising from the Client’s above failure; also, Aliz shall be entitled to the reimbursement of the additional expenses and fees for the additional activities to the extent these were necessary to carry out the Services despite the Client’s failure to meet the relevant assumption(s) and/or fulfill the relevant prerequisite(s).
3. PERFORMANCE OF SERVICES; MILESTONES AND DEADLINES; ACCEPTANCE; DELIVERY PROCESS
3.1. Aliz shall perform the Services with due care and diligence, in accordance herewith and with the relevant SOW as well as the written instructions of the Client.
3.2. The Client shall provide its instructions in writing. The Client’s instructions may not apply to how Aliz organizes the work of its employees or subcontractors.
3.3. Aliz shall perform the Services and shall configure the settings necessary for the delivery and introduction of the Product/Deliverables in accordance with the Requirements Specification, and as a result, shall prepare the Product/Deliverables ready for testing on the basis of the Requirements Specification, within the deadline specified in the SOW.
3.4. Delivery process
3.4.1. Aliz shall deliver the Product/Deliverables as per the terms of the SOW. Upon the delivery of the Product/Deliverables, Aliz will present the Product/Deliverables and will explain the functioning thereof; if the Parties agree so in the SOW, Aliz will deliver the Product/Deliverables in a handover session.
3.4.2. After the delivery/receipt of the Product/Deliverables, the Product/Deliverables shall be deemed accepted for testing and the Client shall start the testing of the Product/Deliverables (i.e. UAT).
3.4.3. The Client shall carry out the testing of the Product/Deliverables (UAT) in accordance with the agreed test conditions and shall share with Aliz the outcome of the test. Unless otherwise provided for in the relevant SOW, the term of the testing (UAT) shall not be more than 10% of the total term of the relevant SOW to be calculated in calendar days, but in any case shall not exceed 10 calendar days (for the sake of clarity the Parties set out that e.g. if a project is for a period of 3 months, the term of the UAT shall not exceed 9 calendar days).
3.4.4. The testing (UAT) shall prove to the Client whether the Product/Deliverables comply with the Requirements Specifications.
3.4.5. If the Client finds any deviation from the Requirements Specification upon the testing of the Product/Deliverables (UAT) which renders the use of the Product/Deliverables, its function or one of its important separate parts impossible or significantly limited (each an “Error”), such Errors shall be recorded in writing in the test records.
3.4.6. Aliz shall examine the Errors indicated in the test records and shall declare whether it acknowledges the existence of the Error(s).
3.4.7. The Parties may agree in the relevant SOW on Error categories and may assign specific SLAs for the fixing of the relevant Error categories. Aliz shall fix the Errors indicated in the test records and acknowledged by Aliz within the technically necessary period of time (or within the SLAs undertaken), and the Client shall monitor and control the fixing of the Errors. The Client shall provide Aliz with the information at its disposal which may be necessary for the identification and fixing of Errors, and the Client agrees that Aliz may not be able to acknowledge any Error in relation to which the Client fails to provide the necessary information.
3.4.8. After Aliz has fixed all Errors listed in the test records, Aliz will re-deliver the Product/Deliverables and will prepare a report on the fixing of Errors and the re-delivery of the Product/Deliverables. The Client shall sign the certificate of acceptance (confirming the due re-delivery of the Product/Deliverables) or shall indicate in writing its duly justified objections about the re-delivered Product/Deliverables 3 business days as of the re-delivery of the Product/Deliverables. If the Client fails to sign the certificate of acceptance or to indicate its duly justified objections in writing within the deadline specified herein, the re-delivered Product/Deliverables shall be deemed accepted by the Client even in the absence of a signed certificate of acceptance.
3.4.9.If the testing of the Product/Deliverables (UAT) does not produce any Errors, the Client shall accept the Product/Deliverables by signing the test records. Other deviations not qualifying as Errors (i.e. deviations from the Requirements Specification that do not prevent the operations, maintainability or proper use of the Product/Deliverables or a functionality thereof, such as errors related to ease-of-use or aesthetics) shall not give the Client ground for refusing the acceptance of the Product/Deliverables; however, the Parties will indicate these deviations in the test records with the relevant deadline that Aliz undertakes to repair these deviations. The test records with such a content shall be deemed as the Client’s certificate of acceptance.
3.4.10. Further, if the Client fails to accept the Product/Deliverables within the agreed test period, but uses the Product/Deliverables during its ordinary course of business or otherwise (or allows any third party to use it), it shall be deemed as the acceptance of the Product/Deliverables even in the absence of a certificate of acceptance/performance signed by the Client.)
3.4.11. If, during the above test period (or the period otherwise specified in the SOW), the Client fails to test the Product/Deliverables the Product/Deliverables shall be deemed as accepted by the Client on the last day of the agreed test period (UAT), even in the absence of a certificate of acceptance or test record signed by the Client.
3.4.12.The provisions of this Section 3.5 shall apply mutatis mutandis to the delivery, testing and acceptance of parts of the Product (or other Deliverable) as per the milestones agreed by the Parties in the relevant SOW, subject to the following: (i) in case of delivery/testing/acceptance of part of the Product (or other Deliverable) the ‘test records’ referenced above shall be construed as the test records prepared upon the completion by Aliz of the relevant milestone; (ii) if the Parties agree in the relevant SOW that there shall be no testing of the relevant part of the Product (or other Deliverable), then the part of the Product (or other Deliverable) shall be deemed accepted by the Client upon the 5th business day from the delivery of the part of the Product (or other Deliverable), unless the Client indicates any objection against the delivered part of the Product (or other Deliverable) within the above period.
3.5. Aliz may issue its invoice on the Fee for the Product/Deliverables (or in the event of partial performance as per the milestones agreed in the SOW, on the part of the Product or other Deliverable) after the Client has signed the test records (or if the Product/Deliverables had Errors, the certificate of acceptance after the fixing of Errors), unless Section 3.4 allow the issuance of the invoice in the absence of the signed test records or certificate of acceptance (deemed acceptance).
3.6. Aliz may hire subcontractors (or participating entities) for the performance of Services, but it shall be liable for the activity thereof as if it had performed the activity itself.
4. CHANGE MANAGEMENT PROCESS
4.1. If necessary, either Party may request changes to the SOW (including the Requirements Specification) by submitting a change request (the “Change Request”) to the other Party in writing. The Change Request shall include the proposed changes to the content of the SOW.
4.2. If the Change Request is submitted by the Client, Aliz shall assess (estimate) the impacts of the requested changes on the Fees, expenses, delivery deadline or any other conditions of the SOW within five (5) business days. Within 5 (five) business days after receipt of Aliz’s proposal concerning the Client’s Change Request, the Client shall inform Aliz in writing whether it accepts the proposal of Aliz, and if the Client accepts Aliz’s proposal, the Parties shall amend the SOW accordingly (setting out when Aliz shall start the changed activity); oral statements or statements implied by conduct shall not be deemed as Change Requests or amendments of any SOW.
FEE; PAYMENT TERMS
5.1. The Client shall pay the Supplier the fee (the “Fee”) specified in the SOW for the performance of the Services and the delivery of the Product/Deliverables, according to the payment schedule set out in the SOW. Each Party shall bear its own banking fees and costs associated with the payment/receipt of the Fee.
5.2. Aliz will be entitled to issue its invoice as per Section 3.5.
5.3. The Fee shall be a lump sum. The Parties may agree in the SOW on deadlines for the completion of the milestones; in this case, Aliz may issue invoices after the completion of the relevant Services/Deliverables/Product for the relevant milestones.
5.4. The Client shall pay the Fee within 15 (fifteen) days upon receipt of the invoice to Aliz’s bank account (the “Designated Account”) specified in the invoice.
5.5. The Fee is net of any taxes, deductions, withholdings. If the Client is compelled to make any deduction, the Fee must be increased accordingly (gross-up) to ensure Aliz will receive the full amount as it was indicated in the documents.
5.6. Payments are deemed to have been made on the day when the relevant sum is credited on the Designated Account. In the event that full payment has not been made by the payment due date, statutory default interest shall be charged on any unpaid amount as from said date.
6. LIABILITY AND WARRANTY
6.1. Aliz warrants that the Services performed, and the Products/Deliverables developed and delivered by Aliz comply with the provisions of the SOW, these Terms the Requirements Specification, and the requirements stipulated by the legal provisions applicable to the Services provided by Aliz. Otherwise, if Aliz carries out the introduction and implementation of a software product which is developed by a third party, and the manufacturer offered a warranty to the software product, Aliz warrants exclusively the contractual performance of the Services during the introduction and implementation, and shall be liable exclusively for the contractual performance of these Services. The Client may enforce its claims exclusively against the manufacturer of the software product, even if Aliz has (re)sold the software product to the Client as a reseller. Furthermore, Aliz shall not be liable for any claims that are connected with the use of products and services delivered by a third party, except if they are related to the misconduct of Aliz. In this regard, if Aliz uses the infrastructure and platform services of any third party service provider (such as Google or Amazon or Microsoft) for the performance of the SOW, as well as if the Services are performed using third party tools or components requested, provided or pre-authorized by the Client, the Client acknowledges that Aliz excludes its liability and makes no warranties in relation to the provision or availability of the infrastructure and platform services or tools or components or the functioning thereof. Further, Aliz excludes any and all other warranties (which the Client expressly acknowledges and accepts) for (i) the Product’s/Deliverables’ fitness for any business or other purpose (whether intended or unintended) or satisfactory quality (whether implied or express); (ii) the Product’s/Deliverables’ having a very specific and detailed set of functions other than those specified in the SOW or the Requirements Specification (if any); (iii) the Product/Deliverables functioning free of any non-material errors; (iv) for the accuracy of any machine learning model(s) developed (if the Product/Deliverables include as element any machine learning model), due to the characteristics of machine learning models; (v) the Product’s/Deliverables’ compatibility with any third party hardware, software, interface or other solution (other than those specifically undertaken in the relevant SOW).
6.2. No warranty claim for defects may be made or enforced against Aliz following the successful completion of the final testing (UAT) of the Product/Deliverables.
6.3. In addition to the exemptions and exclusions specified in the legal provisions, Aliz shall not be liable for the following errors:
6.3.1. if the Error is a result of an attempt to repair or modify the Product/Deliverables without the approval/participation of Aliz,
6.3.2.if the Error occurs due to the installation or relocation of the Product/Deliverables without the information or participation of Aliz,
6.3.3.if the Error does not result from the faulty operation of or defect in the Product/Deliverables delivered by Aliz.
6.3.4.if the Error results from the fault of the infrastructure and platform services provided by a third party service provider (such as Google, Microsoft or Amazon) used for the performance of the SOW by Aliz.
6.4. In addition to the exclusion of liability for errors stated above, the Client shall also reimburse Aliz for the time required for Aliz to investigate the reason for the occurrence of the above errors, at the hourly rates set out in the relevant SOW as evidenced by Aliz in its respective time sheet.
6.5. Aliz may undertake to troubleshoot the Errors occurring after the final testing (UAT), if any, in the Products/Deliverables delivered by Aliz on the basis of a separate SOW.
6.6. THE CLIENT ACKNOWLEDGES THAT ALIZ SHALL NOT BE LIABLE HEREUNDER FOR LOST REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY CHARACTER (INCLUDING DAMAGES FOR LOSS OF GOODWILL OR PROFITS OR DATA), EVEN IF ALIZ KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY. SHOULD ALIZ BE FOUND LIABLE BY THE COMPETENT COURTS FOR ANY INDIRECT DAMAGE INCURRED BY THE CLIENT HEREUNDER, DESPITE THE EXCLUSION OF ALIZ’S LIABILITY FOR INDIRECT DAMAGES UNDER THIS SECTION, THE CLIENT EXPRESSLY ACCEPTS THAT ALIZ STILL LIMITS ITS LIABILITY FOR INDIRECT DAMAGES AS PER SECTION 6.7 BELOW.
6.7. WITHOUT PREJUDICE TO ANY OTHER EXCLUSION OR LIMITATION OF ALIZ’S LIABILITY, ALIZ’S TOTAL AGGREGATE LIABILITY IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND BREACH OF STATUTORY DUTY, HOWSOEVER ARISING), MISREPRESENTATION (WHETHER INNOCENT OR NEGLIGENT), RESTITUTION, UNDER ANY INDEMNITY, OR OTHERWISE, HOWSOEVER ARISING UNDER OR IN CONNECTION WITH THE PERFORMANCE OR CONTEMPLATED PERFORMANCE OF THE SERVICES OR THE DELIVERY OF ANY PRODUCT OR DELIVERABLES OR THE PERFORMANCE OF ANY SOW SHALL BE LIMITED TO THE LOWER OF (I) THE AMOUNT OF FEE AGREED IN THE RELEVANT SOW; OR (II) EUR 100.000.
6.8. THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THE AGREEMENT BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THE LIMITATIONS SET FORTH HEREIN IN DETERMINING WHETHER TO ENTER INTO THE AGREEMENT. BY AGREEING TO PROVIDE THE SERVICES THE CLIENT EXPRESSLY ACCEPTS THE ABOVE LIMITATIONS AND EXCLUSIONS OF LIABILITY AND THE ALLOCATION OF RISKS AND REPRESENTS THAT THE FEES INDICATED IN THE AGREEMENT HAVE BEEN AGREED IN CONSIDERATION OF THESE LIMITATIONS AND EXCLUSIONS; THUS, NONE OF THE PARTIES MAY CHALLENGE THESE FEES ON THE GROUNDS OF BEING DISPROPORTIONATE TO THE FEES OR THE SERVICES OR THE TERMS OF THE AGREEMENT.
7. LATE PERFORMANCE
7.1. In the event of late performance due to the fault of Aliz, the Client is entitled to claim liquidated damages as per the specific provisions of the SOW.
7.2. In the event of a delay in the performance of duties (such as those specified in Section 8.1 and 8.2 below) and the availability of the Client or third persons acting in the interest of the Client (i.e. a Client delay), the delivery deadlines shall be extended automatically at least with the period of the Client delay. Furthermore, the Client acknowledges that Aliz dedicates the necessary resources to the performance of the Services in order to provide the Services within the deadline agreed in the SOW; accordingly, if Aliz is delayed with the performance of the Services, Aliz is incurring losses. Consequently, the Client undertakes to pay Aliz an on-hold fee in the amount specified in the relevant SOW in the event of any Client delay (such as where the Client fails to provide the support within the 2-business day deadline indicated in Section 8.1 or where the Client notifies Aliz that it needs more time to provide such support) or where Aliz suspends the provision of the Services as per Section 7.3 below. If the Client’s delay exceeds 30 days, Aliz may cancel/terminate the SOW concerned by the Client’s delay for breach with immediate effect without granting any additional grace period.
7.3. In the event of the late payment of the Client, the Client shall pay Aliz default interests. Aliz may suspend the performance of the Services specified in the SOW concerned by the late payment, if the Client’s delay exceeds 15 days. If the Client’s delay exceeds 30 days, Aliz may cancel/terminate the SOW concerned by the Client’s delay for breach with immediate effect without granting any additional grace period. If Aliz decides not to terminate the SOW, the deadlines to be observed by Aliz shall be extended automatically with the period of suspension, and Aliz shall not be liable for any delay and any related damages and additional expenses that the Client may incur.
8. OBLIGATION TO COOPERATE
8.1. The Client shall coordinate the activities performed by its employees and any third persons engaged by it or otherwise independent from Aliz in such manner so as to allow Aliz performing the Services according to the terms of the SOW. If Aliz becomes aware of the late or non-contractual performance of these persons, or any behavior that may hinder the performance of the Services, Aliz will inform the Client thereof.
8.2. The Client shall ensure that Aliz may perform its contractual duties timely and smoothly. Within this context, the Client shall ensure in particular the following:
8.2.1. that the support reasonably necessary and requested by Aliz for the implementation of the SOW shall be promptly given (and in particular, that the required documents, feedback, decision, access to the Client’s systems and materials and information and the instructions necessary for Aliz to perform the Services are provided to Aliz as soon as is reasonably possible, but in any case not longer than within 2 business days);
8.2.2.in working hours, the persons acting on behalf of Aliz may enter in the place of performance, if necessary;
8.2.3. the conditions necessary for the successful performance of the Client’s duties, including in particular, the performance of the activities, the availability of the competent employees and experts who are entitled to carry out these activities on the dates and during the period previously defined in the time schedule/scenario specified in the SOW and the availability of any normal and test environments and other technical conditions if any to the extent necessary for the performance of the Services;
8.2.4. upon the delivery of the Services, the persons authorized to accept the Services/Product/Deliverables and sign the certificate of performance are experienced in the field of the Services and are available and present on the dates specified in the time schedule/scenario under the SOW.
8.3. The Parties shall inform each other in writing or via e-mail without delay of all circumstances and facts that may hinder the successful or timely performance of the Services.
8.4. Non-solicitation
8.4.1. The Client undertakes to Aliz (which, for the purposes of this Framework Contract, shall also mean any company ultimately controlled by DS International Group Zrt., having its registered office at 1143 Budapest, Gizella út 42-44 and registered under company registration number 01-10-924920) that without the prior written consent of Aliz not to, either directly or indirectly (independently or jointly with any other person or in any other capacity):(i) entice to employ or solicit or offer the employment or engagement in any form, or employ or engage any employees or subcontractors or the employees of Aliz’s subcontractors listed in the SOW (hereinafter the “Relevant Employees”; (ii) contact any Relevant Employee for such purpose specified in subsection (i) above; (iii) use, engage or support any other person for the purposes set out in subsections (i) and (ii) above. For the purposes of this Section, employment or engagement shall include any employment or work relationship on any ground, under which the Relevant Employee may perform work identical or similar to the Services for Aliz.
8.4.2.The Client’s non-solicitation and non-employment undertaking hereunder in respect of each Relevant Employee shall be in effect for the earlier of:(i) the duration of this framework contract or the relevant SOW governing the Services in which the Relevant Employee is engaged plus two (2) years after the termination or expiry of this framework contract or such SOW, whichever happens later; or (ii) the duration of the Relevant Employee’s employment with Aliz plus two (2) years thereafter.
8.4.3. Should the Client breach any of its obligations under this Section 9.4, the Client shall pay Aliz EUR 250,000 per breach as liquidated damages.
9. INTELLECTUAL PROPERTY
9.1. Subject to Section 9.2 below, all intellectual property rights to the Product/Deliverables arising in relation to the performance of the Services and the development of any Product/Deliverables shall become and remain the sole and absolute property of Aliz and Aliz shall retain all right, title and interest in the same. Therefore, it remains the exclusive right of Aliz to grant any persons any license over the Product/Deliverables or transfer any property rights thereto, without prejudice to the Limited License granted to the Client hereunder. Intellectual property hereunder shall include in particular copyrights (including rights in computer software, source code and object code), patents, patentable and non-patentable inventions, technical processes, trademarks, service marks, registrable and non-registrable designs, trade secrets, trade dress, mask work, utility design, derivative works, know how, moral rights, rights of publicity and privacy, and all other rights and interests therein or related thereto.
9.2. Aliz agrees to grant the Client, in consideration of and subject to the payment of the Fees specified in the relevant SOW, a non-exclusive, royalty-free, non-transferable, perpetual license, limited in territory to the Client’s place of business (country) entitling the Client to use the Product/Deliverables (as the output of the completion of the Services) specified in the SOW only for its own internal purposes, including only those that are strictly necessary for carrying out its current standard business activity, but which shall not include in any way the provision of IT services competing with those provided by Aliz (the “Limited License”). Under the Limited License, the Client may only reproduce or copy the Product/Deliverables within its organization, for the use of the Product/Deliverables by the Client’s employees and the Client may not transfer any right to the Product/Deliverables or grant any user any right (license) to the Product/Deliverables or modify the Product/Deliverables, or otherwise exploit the Product/Deliverables (whether commercially or otherwise).
9.3. Aliz represents and warrants that, at the time of the granting of the Limited License:
9.3.1. neither Aliz (as author or employer of the author) nor any third party has any copyright or other intellectual property right to the Product/Deliverables that may impede the Client, to any material extent, to use the Product/Deliverables as per the terms of the Limited License, other than the author's moral rights that may not be waived validly and any third party service, tool or component used for the performance of the Services, if the use of such service, tool or component was requested, provided or pre-authorized by the Client;
9.3.2. it has all intellectual property rights to the information used for the purpose of developing the Product/Deliverables under the SOW.
9.4. If the Parties agree in the SOW that, notwithstanding Sections 9.1 and 9.2 above, Aliz will transfer all intellectual property rights to the Product/Deliverables, the Client acknowledges and accepts for such event that Aliz may freely use, utilize, exploit and dispose of, without any limitation in time or territory or method of use, any part or the combination of any parts of the Product/Deliverables (but not the Product/Deliverables in their integrity or entirety), and, if required by law or otherwise to allow Aliz exercising its right detailed above, the Client shall grant Aliz and the Client shall ensure that the Client grants Aliz a non-exclusive right of use (license), unrestricted in terms of time, territory and methods of use, under which Aliz shall be entitled to freely use and exploit, without any limitation in time or territory or method of use, any part or the combination of any parts of the Product/Deliverables (but not the Product/Deliverables in their integrity or entirety). In addition, the Client also expressly acknowledges, agrees and accepts that the know-how developed by Aliz upon the creation and provision of the Product/Deliverables under the SOW (the “Know-how”) is and shall remain the exclusive property of Aliz and Aliz may freely use and exploit, without any limitation in time or territory or method of use or exploitation the Know-how or any intellectual property created based on the Know-how so long as any such intellectual property created based on the Know-how does not materially coincide with the Product/Deliverables.
10. CONFIDENTIALITY; PRIVACY
10.1. Each Party agrees that it will hold the other Party’s confidential information (which, for the purposes of these Terms, shall mean all information disclosed by a Party (the “Disclosing Party”) to the other Party (the “Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure; the “Confidential Information”) in confidence using at least the same standard of care that it uses to protect its own confidential information of similar nature, but in no event less than reasonable care. Further, the Receiving Party may not disclose the Confidential Information of the Disclosing Party to any third party without the Disclosing Party’s prior written consent. In addition, each Party undertakes to the other Party to limit access to the Disclosing Party’s Confidential Information to those of its employees, agents, consultants or subcontractors who need to know such Confidential Information for the purposes of performing the Agreement and who are bound by confidentiality obligations at least as restrictive as those set forth herein.
10.2. Each Party acknowledges and agrees that it may only use the Disclosing Party’s Confidential Information to perform its obligations or exercise its rights under the Agreement. Neither Party may disclose and may hand over, distribute or publicize (hereinafter “Disclose” and “Disclosure”) the Services or the Deliverables/Product to any third party.
10.3. The obligations set forth in this Section will apply during the Term and will continue for an indefinite period of time after the expiration or termination of the Agreement. Following termination of the Agreement or upon request of the Client, all Confidential Information of the Client (in any form and any copies thereof) in the custody and control of Aliz shall be deleted or destroyed.
10.4. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law or binding governmental resolution to do so, provided that the Receiving Party shall give the Disclosing Party prior written notice of such compelled access or disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the access or disclosure.
10.5. Further, the restrictions on the use and disclosure of Confidential Information will not apply to any Confidential Information which (i) is or becomes publicly known through no act or omission of the Receiving Party; (ii) is lawfully received from a third party without restriction on disclosure; (iii) is already known by the Receiving Party without a duty of confidentiality at the time it is disclosed by the Disclosing Party, as shown by the Receiving Party’s written records; or (iv) is independently developed by the Receiving Party without reference to the Disclosing Party’s Confidential Information, as shown by the Receiving Party’s written records.
10.6. Aliz may indicate the Services performed for the Client under any SOW as a reference in its website and in other marketing materials, and this shall not be considered as a breach of confidentiality; however, Aliz shall inform the Client of the wording of the reference and the Client may refuse to approve the reference if it contains untrue or misleading statements.
10.7. The Client undertakes to ensure that Aliz has no access to any personal data of the Client (including, in particular, the personal data of the customers of the Client), other than those mentioned in Section 10.8. Should it be necessary for the performance of any Services that Aliz has access to and processes any personal data of the Client (including, in particular, the personal data of the customers of the Client), then the Client shall ensure that it gives Aliz all instructions necessary for the processing of any such personal data in compliance with the data protection laws applicable to such personal data and shall be liable to Aliz for any non-compliance of such instructions and any loss that Aliz may incur as a result of the performance of any such instruction.
10.8. The Client undertakes to inform its representatives specified in the SOW about the processing by Aliz of their personal data by providing them the data processing information (the “Privacy Terms”) published by Aliz on its website, under the following link: https://aliz.ai/partner-data-privacy/, prior to the commencement of the processing by Aliz. Should the Client fail to comply with its above undertaking, it shall be liable for all losses incurred by its representatives or by Aliz as a result.
10.9. In addition, the Client undertakes to indemnify Aliz from and hold it harmless against any damage (including any official fine, compensation or indemnification payable to any data subject or any justified costs and expenses incurred in any court or other official procedure) arisen in relation to or as a consequence of the infringement by the Client (or any person engaged by it for the processing of the personal data) of the requirements of the applicable data protection laws (such as the GDPR).
11. TERM AND TERMINATION
11.1. The term of the Agreement shall commence on the effective date specified in the SOW (or in the absence thereof, on the date of signing of the SOW by both Parties; the “Effective Date”) and will continue for the term specified in the SOW (or in the absence thereof, on the date when the Services and the Product/Deliverables were properly delivered and the Client paid the Fee; the “Term”).
11.2. If so agreed in the SOW, the Client may terminate the Agreement for convenience (without cause), by way of a written notice to Aliz, with a notice period of 15 days. In such an event, the Client shall pay Aliz the Fees due until the date of termination of the Agreement as well as the liquidated damages specified in the SOW. If so agreed in the SOW, Aliz may terminate the Agreement for convenience (without cause).
11.3. Each Party may terminate the Agreement for the other Party’s breach (with cause), by way of a written notice to the other Party. The terminating Party shall provide reasons for the termination and shall request the Party in breach to remedy the breach within a reasonable period of time. The Parties consider it a breach of the Agreement if Aliz is in significant default with the performance of the Services, or if the Client is in default over 15 days with the payment of the Fees, or if either Party breaches any obligation, undertaking or warranty set out in the Agreement.
11.4. Aliz shall return to the Client (or if so requested by the Client erase) all documentation delivered by the Client to Aliz under the relevant Agreement or developed by Aliz upon the provision of the Services under the Agreement, and, at the instruction of the Client, Aliz shall irreversibly erase from its own IT and other equipment and computer application all copies thereof upon the termination of the Agreement.
11.5. The Parties shall cooperate with one another also upon and in relation to the termination of the Agreement for any reason whatsoever.
11.6. The termination of the Agreement for any reason shall not relieve the Parties from their obligations arising prior to the termination. The provisions of this Section and the following Sections will survive any termination of the Agreement: Sections 2.4, 3.4-3.5, 5, 6, 8.4, 9., 10, 11, 12.
12. MISCELLANEOUS
12.1. The Agreement may only be amended by the mutual written agreement of the Parties.
12.2. ALIZ RESERVES THE RIGHT TO UNILATERALLY AMEND OR MODIFY ANY PROVISION OF THESE TERMS (AND ANY OTHER DOCUMENT INCORPORATED HEREIN BY REFERENCE) AT ANY GIVEN TIME AND AT ITS SOLE DISCRETION, PROVIDED THAT THE UPDATES WILL NOT APPLY TO ANY AGREEMENT ALREADY CONCLUDED BUT NOT YET PERFORMED.
12.3. The Client agrees and accepts that none of its general terms and conditions shall apply to the SOW (or any Services performed or Product/Deliverables delivered thereunder) regardless of whether the SOW references such general terms and conditions.
12.4. The Parties agree that the Agreement shall not create between the Parties employment, engagement or agency relationship, partnership or company or any legal relationship other than the services (contractor) relationship specifically set out herein. None of the Parties hereto is entitled to act as a representative or proxy of the other Party. Both Parties shall continue to act as independent contractors or principals in relation to their customers and suppliers.
12.5. Any legal notices relating to the Agreement must be in writing and sent to each Party to its then-current primary place of business or such other address provided by the recipient. All notices must be deemed delivered (i) if sent by certified mail or by personal, or overnight courier, at the time when it is delivered to the other Party as confirmed by signed return receipt (or if the delivery was rejected, at the time of rejection or if the addressee did not seek the notice, on the 5th day as of the second delivery attempt); (ii) if sent by email, at the time of confirmation of receipt by the sender, whether automatic or specific, or in lack of confirmation, on the 3rd business day as of sending the email.
12.6. In the event that any provision of the Agreement is or becomes unenforceable or invalid under any applicable law or be so held by applicable court decision, such unenforceability or invalidity shall not render the entire Agreement unenforceable or invalid. Aliz will amend or replace such provision with one that is valid and enforceable and which achieves, to the extent possible, the original objectives and intent of the Parties as reflected in the original provision.
12.7. Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other Party (not to be unreasonably withheld). Notwithstanding the foregoing, the Client acknowledges and agrees that Aliz may transfer and assign the Agreement in its entirety, without the consent of the Client, to its affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets (to which the Client hereby consents in advance). Subject to the foregoing, the Agreement shall bind and inure to the benefit of the Parties, their respective successors and permitted assigns.
12.8. The Agreement does not and is not intended to confer any rights or remedies upon any person or entity other than the Parties and a person who is not a party to the Agreement will not have any rights (such as under the Contracts (Rights of Third Parties) Act 1999 of the United Kingdom or under any other similar laws) to enforce any term and condition of the Agreement.
12.9. Force majeure
12.9.1. None of the Parties shall be liable by reason of any failure or delay in the performance of its obligations due to events beyond the reasonable control of the Party, which may include denial-of-service attacks, strikes, shortages, riots, fires, acts of God, war, terrorism, pandemic or epidemic and related or other governmental actions, embargos or international sanctions.
12.9.2. The Party affected by the force majeure event undertakes to inform the other Party of the occurrence of any force majeure event as soon as reasonably practicably and will use reasonable efforts to mitigate the adverse effects of the force majeure event.
12.10. If there is a conflict or inconsistency between constituent parts of the Agreement (i.e. the SOW and these Term), the following order of precedence will be applied and the document higher in the order of precedence will prevail:
12.10.1. the SOW, and
12.10.2. the Terms.
12.11. The Agreement and any matters not regulated in the Agreement shall be construed in accordance with and governed by the laws of Hungary.
12.12. Any dispute, claim or controversy arising out of or relating to the Agreement or the breach, termination, enforcement, interpretation or validity thereof shall be determined by the ordinary courts of Hungary.
