Entire Agreement
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Contracts between Cloudmaven ERP (“Cloudmaven”) and the Customer are subject to the following general terms and conditions (“GTC”), unless otherwise agreed.
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This Agreement sets out all the terms agreed between the parties relating to the subject matter of this Agreement and supersedes any previous agreement between the parties relating to the same subject matter. Neither of the parties shall be bound by, or liable to the other party for, any representation, promise or inducement made by it or by any agent or person on its behalf which is not expressly contained in this Agreement.
Nature Service
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Cloudmaven shall provide with the services specified in the Statement of Work and all other services as agreed from time to time under or in connection with this Agreement (“Services”). Cloudmaven’s services are not intended to be used as the sole basis for any business decision, and are based upon data which is provided by third parties, the accuracy and/or completeness of which it would not be possible and/or economically viable for Cloudmaven to guarantee.
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Cloudmaven’s failure to perform its obligations under this Agreement will not be treated as a breach if and to the extent such failure is caused by the Customer’s failure to perform any of its obligations under this Agreement.
Terms of Payment
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In consideration for the provision of the Services by Cloudmaven, the Customer must pay the fees specified in the Statement of Work.
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Cloudmaven is paid for services performed on an hourly basis, based on an eight-hour working day, unless otherwise specified in the Statement of Work. The rate of the expenses to be invoiced will be determined in the Statement of Work.
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Unless stated in the Statement of Work, services are recorded and invoiced to the Customer on a monthly basis.
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Unless stated in the Statement of Work, all invoices are payable in cleared funds within fourteen (14) days after receipt of the invoice
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Unless stated in the Statement of Work, all fees specified are exclusive of all reasonable out of pocket expenses which are payable in addition by the Customer. Cloudmaven must provide receipts or other reasonable evidence to the Customer of all out of pocket expenses together with the invoice related to such out of pocket expenses.
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If any sum payable by the Customer to Cloudmaven is not paid in cleared funds by its due date, the Customer is in delay even without further notice. Cloudmaven is entitled to charge interest on the overdue amount but at no more than 3% p.a. of the amount outstanding. Interest will accrue daily from the due date up to the date of actual payment or before judgment.
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All sums referred to in the Statement of Work are exclusive of VAT, GST, withholding taxes or any other similar sales or turnover tax (if applicable); such taxes are payable by the Customer to Cloudmaven on the same payment terms as apply to the sums to which the taxes relate.
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All payments made by a party under the Statement of Work must be made free and clear of any present or future taxes including any withholding taxes, deductions, fees or other imposts, or any bank charges. If either party is required by law to make any deductions or withholdings from payments due under the Statement of Work, such party must pay such additional amounts to the receiving party as may be necessary to ensure that the actual amount received by the receiving party after deduction or withholding (and after payment of any additional taxes due as a consequence of such additional amount) is equal to the amount that would have been payable to the receiving party if such deduction or withholding were not required. Each party further agrees to furnish an official receipt, or certified copy of it to the other evidencing the timely payment of such withholding or deduction to the proper governmental authority.
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Unless otherwise agreed upon in the Statement of Work, all payments by the Customer must be in Swiss Francs. To the extent fees are indicated in any other currency, payments will be computed at the exchange rate prevailing on the due date at the Reuters Foreign Exchange Rate sourced in NetSuite ERP.
References
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No references applicable.
Confidentiality
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Both Parties acknowledge that confidential information is confided to them within the scope of work and that he may also possibly gain knowledge of Confidential Information in some other way.
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“Confidential Information” shall include all information whether commercial, financial, technical or otherwise of the Disclosing Party and its Affiliates (defined below) in whatever form, including without limitation trade secrets, systems, procedures, confidential reports, cost information, pricing information, commission schedules, sales and/or trading strategies, marketing plans, computer software and tapes, programs, source codes, know-how, product plans, financial information relating to the nature and manner of products and services sold, used or serviced, and arrangements with customers and suppliers of the Disclosing Party or its Affiliates, together with all analyses, compilations, data, studies or other documents prepared by the Receiving Party or its permitted Affiliates which are derived from or in connection with such information or which contain or are based in whole or in part upon such information.
“Affiliate” in this Agreement means any entity that controls, is controlled by or is ultimately under common control with a party.
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Both Parties shall undertake to keep this Confidential Information and the knowledge gained therefrom strictly confidential within the scope of work.
In particular, they shall be bound to take all the necessary steps to ensure that:
a) Confidential Information and the knowledge gained therefrom is not disclosed in whole or part to unauthorized third parties;
b) No copies of any documents containing confidential information are made without the written consent of the Directors signing the Statement of Work;
c) Such documents will be kept in a safe place and specifically, not stored in any cloud storage solution other than the platforms accessible with the corporate email address;
d) Confidential Information will only be disclosed to third parties who, for their part, have signed a corresponding confidentiality obligation;
e) Documents containing Confidential Information are returned at any time upon request.
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Both Parties confirm that this confidentiality obligation shall remain in full force and effect after completing the engagement.
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The confidentiality obligations will not apply if either party is required by any court, government or other regulatory body prevailing legislation in the national jurisdiction of either Party to disclose the Confidential Information, but only to the extent required by law, provided that the disclosing Party gives the other Party written notice as soon as practicable of such requirement so that the other Party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement.
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If such protective order or other remedy is not obtained, then the disclosing Party will furnish only that portion of the Confidential Information which the disclosing Party is advised by the reasonable opinion of counsel is legally required and will exercise its reasonable efforts to assist the other Party in obtaining a protective order or other reliable assurance that confidential treatment will be accorded to the Confidential Information that is disclosed.
Rights to Intellectual Property
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In this section, "Intellectual Property" includes letters patent, trademarks whether registered or unregistered, designs, utility models, copyrights (including design copyrights applications for any of the foregoing and the right to apply for them in any part of the world) discoveries, creations, inventions or improvements upon or additions to an invention, confidential information, knowhow and any research effort relating to any of the above mentioned, business names whether registrable or not moral rights and any similar rights in any country.
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Intellectual Property produced or acquired prior to the period of the engagement remain the property of the respective Party. Both Parties ensure to safeguard Intellectual Property shared during the engagement and not disclose it to third parties that may result in a direct or indirect competitive disadvantage to the other Party.
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Both Parties foresee that Intellectual Property may be discovered or created in the course of the engagement. They acknowledge that any inventions produced or helped to produce in the course of the engagement may be used by either of the Parties to the extent that they do not result in a direct or indirect competitive disadvantage to the other Party to Cloudmaven regardless of whether they can be protected or not.
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The rights and obligations under these Clauses on Intellectual Property shall continue in force after termination of the engagement in respect of Intellectual Property made during the engagement and shall be binding upon his representatives.
Limits of Liability
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Neither party excludes or limits its liability to the other for any of the following (and nothing in this Agreement shall be construed as excluding or limiting such liability):
a) for any matter which it would be illegal for that party to exclude and/or limit, or attempt to exclude and/or limit, its liability; or
b) for personal injury or death resulting from its negligence or that of its employees, agents and/or sub-contractors; or
c) for breach of terms in this Agreement.
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Subject to Clause 7.1, neither party shall be liable to the other (whether in contract, negligence, for breach of statutory duty or under any indemnity or otherwise) for:
a) any indirect or consequential loss; or
b) the following types of financial loss, even if that party had notice of the possibility of the other party incurring such losses: loss of profits; loss of earnings; loss of business or goodwill; or business interruption; or
c) the following types of anticipated or incidental losses, even if that party had notice of the possibility of the other party incurring such losses: loss of anticipated savings; increase in bad debt; loss of sales or revenue; failure to reduce bad debt; or reduction in the value of an asset.
Non-Solicitation
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The Parties acknowledge and agree that:
a) each of them has invested substantial time and expense in recruiting, hiring, training and retaining employee and contractors.
b) if either Party hires an employee or contractor of the other, as a result of the exposure of such person to the first-mentioned party in the course of activities under this Agreement, the first-mentioned Party will receive significant additional value under this Agreement at the expenses of the other Party;
c) accordingly, at any time from the date of this Agreement until six (6) months after its termination, neither Party will directly or indirectly without the prior written consent of the other Party, solicit or hire any person who has been directly or indirectly involved in the provision or receipt of services under this Agreement; and
d) without prejudice to the Parties’ other remedies under this Agreement, the Party in breach of this Clause shall pay the other Party an amount equivalent to six (6) months’ salary of such employee or contractor hired in breach, which the parties acknowledge to be reasonable compensation in the circumstances to account for the loss suffered by the other party.
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For the purposes of this Clause, “to hire” shall mean to hire as an supplier and/or otherwise to engage or retain as an independent contractor or consultant and/or obtain any form of services from such supplier with or without compensation.
Term and Termination
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The Statement of Work shall be deemed to have commenced on the Start Date specified and shall continue until the End Date specified, unless extended by mutual agreement or earlier terminated in accordance with this Clause 9.
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Termination of the Statement of Work (or of any element of it) shall not affect any rights, obligations or liabilities of either party which have accrued before termination or which are intended to continue to have effect beyond termination.
General
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In these General Terms and Conditions:
a) any reference to a statutory provision includes a reference to any modification or re-enactment of it from time to time.
b) references to clauses are to the Clauses of the GTC.
c) the singular includes the plural and vice versa.
d) the headings are for ease of reference only and shall not affect the construction or interpretation of this agreement.
e) where any matter is to be agreed, such agreement must be recorded in writing.
f) pronouns such as “he” or “his” shall be indiscriminately understood for both male and female persons signing the agreement.
g) wherever the words “including”, “include”, “includes” or “included” are used they shall be deemed to be followed by the words “without limitation” unless the context otherwise requires.
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Any notices to be sent by one party to the other in connection with this Agreement except for the service of Court proceedings shall be in writing and shall be delivered personally or sent by special delivery post (or equivalent service offered by the postal service from time to time) or fax to the addresses of each party as set out on the front page of the Statement of Work or as otherwise notified in accordance with the provisions of this Clause.
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Variations of this Agreement shall not be effective unless recorded in writing signed by the parties; variations in electronic form shall not count as variations recorded in writing. However, variations to the Statement of Work made in accordance with any agreed change control procedure shall be effective.
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Notices shall be deemed to have been duly given: if delivered personally, upon delivery; if sent by post, two clear days after the date of posting; if sent by fax, when transmitted provided that a confirmatory copy is sent by special delivery by the end of the next business day after transmission.
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Privacy of Contract
No term of this Agreement is intended to be enforceable by anyone other than the signing parties to this Agreement.
Neither party may assign, transfer, charge or deal in any other manner with this Agreement or any of its rights under it without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed).
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Severance
In the event that any clause or any part of any clause in this Agreement should be considered to be unenforceable, unlawful or void, then that clause or that part of the clause shall besevered from the Agreement and the remaining provisions of this Agreement shall remain in full force and effect.
Further, if either party fails to exercise a right or remedy that it has or which arises in relation to this Agreement, such failure shall not prevent that party from exercising that right or remedy subsequently in respect of that or any other incident.
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Non-waiver
No delay or failure by either party to exercise any of its powers, rights or remedies under this Agreement will operate as a waiver of them, nor any single or partial exercise of any such powers, rights or remedies preclude any other or further exercise of them. Any waiver of any breach or provision of this Agreement shall only be effective if it is made in writing and signed on behalf of the party who is waiving the breach or provision.
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Binding Effect
This agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective heirs, executors, administrators, per¬sonal representatives, succes¬sors, and permitted assigns.
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Force Majeure
Neither party will be liable for any delay or failure in the performance of its obligations under this Agreement if such delay or failure is due to an event of Force Majeure, which shall mean any act of government or state, civil commotion, epidemic, fire, flood, industrial action or organised protests by third parties, natural disaster, war, failure of payment systems, or any event beyond the reasonable control of the party claiming to be excused from performance of its obligations.
Each party shall, at the reasonable request and cost of the other party, do whatever is reasonably required to give the other party the full benefit of all the provisions of this Agreement.
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Place of Jurisdiction
This Agreement shall be construed in accordance with the laws of the prevailing jurisdiction of Olten, Switzerland.
If you have any questions concerning the Terms and Conditions, please contact Cloudmaven's Customer Service by visiting the Contact section of our website or use the chatbox available on the bottom right of the page.
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