General terms and conditions for delivery of services from BitPeople.
Unless otherwise is stated within the Agreement the following terms and expressions shall have the meaning stated below:
|Acceptance Date||The date upon which Customer approves the Acceptance Test and Delivery takes places, as further described in Clauses 6.3 and 7.1 below.|
|Acceptance Test||The test carried out to determine whether the agreed functionality is present in accordance with Section 7.1 below and Appendix 3 (Time schedule).|
|Agreement or MSA||The master services agreement, including appendices and sub-appendices (as set out in the Cover Agreement), as well as any amendments to the Agreement made in accordance with Clauses 5 and/or 17 below.|
|Blueprint||A combined report of all findings identified during the Blueprint Phase regarding (i) the current state of the Customer’s IT-Environment and (ii) the installation and configuration changes required for the Supplier’s Delivery of the Services, attached as Appendix 2 (Blueprint) and as further described in Section 4 below.|
|Blueprint Phase||The initial/preparatory analysis-phase initiated and finalized before the Effective Data with the purpose of generating the Blueprint, as further described in Section 4 below.|
|Changes||Changes or requests for changes made by either the Supplier or Customer according to the Change Procedure, as further described in Section 5 below, including amendments to the Blueprint after the Effective Date, as described in Clause 4.2 below.|
|Change Procedure||The procedure utilized in connection with either the Customer’s and/or Supplier’s requests for Changes, as further described in Section 5 below and Appendix 2 (Blueprint).|
|Consultancy Agreement||A separate standard contractual framework governing the Supplier’s provision of Consultancy Services to the Customer which the Parties accept as the sole basis for all Consultancy Services that the Supplier is or may be required to provide to the Customer, whether that be after or before Delivery of the Services.|
|Consultancy Services||Consultancy services beyond the Services described in Appendix 2(Blueprint) and Appendix 3 (Time schedule), provided by the Supplier according to a separate agreement, cf. Appendix 5 (Consultancy Agreement).|
|Customer||The customer as identified in the Cover Agreement/on the cover page of this Agreement.|
|Customers IT Environment||The Customer’s IT environment relevant to the Supplier’s Delivery of the Services, as further described in the Blueprint and Section 4 below.|
|Customised Software||Software provided/developed by the Supplier to the Customer which is not considered Standard Software, and which is marked as Customised Software in Appendix 2 (Blueprint), as opposed to Standard Software.|
|Delivery||The date at which the Supplier may consider the Services as fully delivered and accepted by the Customer, as described in Clause 6.3 below.|
|Documentation||The documentation which the Supplier is required to provide as part of the Services, cf. Clause 2.4 below and Appendix 2 (Blueprint).|
|Effective Date||The date the Agreement is signed by both Parties as set out in the Cover Agreement.|
|Fees||All fees to be paid by the Customer to the Supplier according to Section 10below and Appendix 4 (Fees and Payment)|
|General Terms and Conditions||These general terms and conditions incorporated as part of the Agreement.|
|Maintenance||Maintenance services to be provided by the Supplier if included in Appendix 2 (Blueprint), as further described in Clause 2.3 below.|
|Phase(s)||The phases of Delivery described in Appendix 2 (Blueprint) and Appendix 3(Time schedule).|
|Project(s)||Separate projects initiated by the Customer beyond the scope of the Services, and as defined by a Consultancy Agreement Appendix 5(Consultancy Agreement).|
|Services||The Services provided by the Supplier and paid by Customer as defined in the Cover Agreement, Appendix 2 (Blueprint) and Appendix 3 (Time schedule).|
|Standard Software||Software marked as Standard Software in Appendix 2 (Blueprint), as opposed to Custom Software.|
|Supplier||The supplier as identified in the Cover Agreement/on the cover page of this Agreement.|
|Warranty Period||The period in which the Supplier warrants the functionality of the Services Delivered, except for Maintenance and other services which may not be directly associated with the Phases, as described in Clause 8.2 below.|
2.1.1 – The Supplier shall deliver the Services as described in the Appendix 2 (Blueprint) in accordance with the terms of the Agreement, in a professional manner and in accordance with good IT practice.
2.1.2 – The Supplier’s Delivery is, however, subject to the precondition that no faults of significance to the Supplier’s fulfilment of the requirements under this Agreement, occur in the Customer’s IT Environment, as further described in Section 4 below and Appendix 2(Blueprint).
2.2.1 – The Supplier’s Delivery shall only include Standard Software and Customised Software to the extent specified in Appendix 2 (Blueprint). If it is unclear whether software is to be considered Standard Software or Customised Software, the Parties agree to assume that it is Standard Software, unless the Customer can prove otherwise.
2.2.2 – The Suppliers delivery of Customised Software is subject to additional terms and conditions as further specified in Clause 3.3 and 9.2
2.3.1 – The Supplier’s Delivery shall only include Maintenance to the extent specified in Appendix 2 (Blueprint).
2.3.2 – In case Maintenance is included in Appendix 2 (Blueprint), the Parties acknowledge and accept the following, depending on the Services:
Licensed/On premise SAP-solution: The inclusion of Maintenance in Appendix 2 (Blueprint) and the Customer’s payment for such services, only provides the Customer with a right to receive updates and new releases but does not cover the costs associated with implementing such an update and/or new release.
Cloud-based SAP-solution: The inclusion of Maintenance in Appendix 2 (Blueprint) and the Customer’s payment for such services, provides the Customer with a right to receive updates and new releases as part of its ongoing payment for the Cloud-based SAP-solution.
2.3.3 – The work required to implement any update is not included as part of Maintenance and will, therefore, be subject to a separate Consultancy Agreement, and the Customer is not entitled to require that this be carried out “free of charge” or at a reduced rate.
2.3.4 – In any case, Maintenance does not include the development of Custom Software or any other form of specialized development activities. Should the Customer request such services, those will be delivered according to a separate Consultancy Agreement.
2.4.1 – The Documentation requirements are specified in Appendix 2 (Blueprint), including a statement of the Documentation to be provided by the Supplier in connection with, e.g., the acceptance test.
2.4.2 – Unless otherwise stated in Appendix 1 (Deviations), the Documentation must be provided by Supplier and approved by the Customer on or before the Acceptance Date.
2.4.3 – Documentation must be available in Danish or English unless otherwise stated in Appendix 2 (Blueprint).
2.5 Data conversion
2.5.1 – If the Supplier is to convert data, the relevant requirements shall be set out in set out in Appendix 2 (Blueprint), including format, media, etc.
2.5.2 – The Customer is solely responsible for the quality and presence of original data in the agreed format and for making it available to the Supplier.
3.1 Customer’s participation
3.1.1 – The Customer shall contribute to and cooperate with the Supplier in connection with the Delivery of the Services as described in Appendix 2 (Blueprint) and in accordance with the terms of this Agreement.
3.1.2 – In addition to participation required according to Appendix 2 (Blueprint), the Customer shall provide such general participation as may reasonably be expected, including but not limited to making information, staff premises and other facilities available, participating in the respective tests part of the Delivery execution described in Section 4
3.1.3 – The Customer provides the required participation, free of charge, and will not be entitled to reimbursements, discounts, or reductions of any kind.
3.1.4 – Any information regarding the Customer’s participation in Appendix 2 (Blueprint) is to be seen as estimates and the Customer acknowledges, that it may become necessary to adjust the scope as well as content. In accordance with Clause 1.3, the Customer will not be entitled to any reimbursements due to increased costs associated with such adjustments.
3.1.5 – The Supplier shall notify the Customer without undue delay if the Customer fails to participate as agreed or as may reasonably be expected.
3.1.6 – The Customer shall notify the Supplier in writing as soon as the Customer anticipates a delay in or lack of participation and shall in this case substantiate the reasons behind this anticipation.
4.1 The Blueprint Phase
4.1.1 – The Customer’s IT Environment is critical to the Supplier’s ability to deliver the Services. Prior to the Effective Date, the Parties have, therefore, initiated and finalized the Blueprint Phase with the purpose of developing the Blueprint attached as Appendix 2 (Blueprint).
4.1.2 – The Customer acknowledges that the Blueprint has been developed as a joint effort between the Parties and forms the sole basis for Parties determination of the Services which the Supplier is required to Deliver according to this Agreement.
4.2 Changes to the Blueprint After the Effective Date
4.2.1 – To the extent that the Parties reach an agreement on detailing and supplementing the Blueprint after the Effective Date, such amendments this shall be shall be considered as a Change and handled in accordance with the Change Procedure described in Section 5 and included in the changelog as described in Clause 5.4 below.
5.1.1 – During the Term, the Parties may request Changes to the Agreement, Delivery, Services, etc., i.e., from the Effective Date.
5.1.2 – Unless otherwise is stated in Appendix 1 (Deviations), the Supplier shall invoice the Fees associated with Changes in accordance with Appendix 4 (Fees and Payment).
5.1.3 – Changes which are unnecessary for the Supplier’s Delivery of the Services shall be considered as new Projects and shall be invoiced in the basis of the time and material spent and in accordance with the Supplier’s applicable hourly rates, as described in Appendix 4(Fees and Payment). Unless otherwise is stated in the Supplier’s proposal, the Supplier shall not be required to unnecessary Changes before after the last Delivery date, as determined in Appendix 3 (Time schedule).
5.1.4 – If Changes are necessary for the Supplier’s Delivery of the Services, the Customer must accept the Supplier’s requests for Changes and proposals following the Customer’s requests for Changes if (i) the Supplier may otherwise incur extensive losses, (ii) the Customer will only benefit to an insignificant degree by rejecting the Suppliers’ request or proposal, or (iii) if the Supplier’s request for Changes is due to reasons which the Customer is closest to bearing the risk for, including, but not limited to, situations where the Changes are:
a) necessary for Delivery of the Services;
b) a consequence of former Changes requested by the Customer; or
c) caused by the Customer’s lacking participation in connection with the Supplier’s Delivery of the Services or the Customer’s insufficient information in connection with the preparation of the Blueprint.
5.1.5 – The Supplier shall be entitled to request additional Fees in case of Changes approved by the Customer, which shall be invoiced as described in Appendix 4 (Fees and Payment).
5.1.6 – Beyond what is stated in this Section 5, Appendix 2 (Blueprint) and potentially within Appendix 1 (Deviations) (the “Change Procedure“), neither Party is entitled to request changes.
5.2 The Customer’s requests for Changes
5.2.1 – The Customer’s requests for Changes shall be forwarded in writing to the Supplier.
5.2.2 – The Supplier shall without undue delay after receipt of the Customer’s request for Changes, prepare an estimate of the expected Fees associated with preparing a proposal for the requested Change. The estimation must be based on the hourly rates set out in Appendix 4 (Fees and Payment) and must be submitted to the Customer for approval.
5.2.3 – On receipt of the Customer’s approval of the estimate, the Supplier shall initiate the procedure and submit a proposal for a solution, without undue delay and not later than fourteen (14) days thereafter.
5.2.4 – In case disagreement arises between the parties about the consequences of a requested Change, the Customer’s sole remedy shall be to reject to proposal forwarded by the Supplier.
5.2.5 – If the Customer rejects the Supplier’s proposal, the Supplier is entitled to charge a reasonable fee covering the preparation of the proposal. The fee shall be calculated according to the documented time spent and the hourly rates specified, taking the Supplier’s estimate into account, see Clause 2.2.
5.2.6 – If the Supplier concludes in the proposal for a solution that the requested Change cannot be carried out owing to technical or significant functional reasons, the Supplier may refuse to comply with that particular request for a Change.
5.3 The Supplier’s requests for Changes
5.3.1 – The Supplier’s request for Changes shall be submitted to the Customer in writing.
5.3.2 – The Customer shall respond to this request within ten (10) days, otherwise the Supplier is entitled to suspend the Delivery of the Services until an agreement is made regarding the Supplier’s request for Changes.
5.4.1 – The Supplier shall maintain a joint changelog which shall, as a minimum, contain the information within Sub-Appendix 1 to Appendix 1(Deviations).
5.4.2 – The Supplier shall not initiate any work related to a Change before the relevant information has been provided in the changelog below.
6.1 Place of delivery
6.1.1 – The Supplier shall deliver the Services at the locations mentioned in Appendix 2 (Blueprint).
6.2.1 – The Supplier shall deliver the Services within the last date of Delivery determined in Appendix 3 (Time schedule), including any extensions justified in accordance with Clause 4.
6.2.2 – The Supplier shall, therefore, until the Acceptance Date, bear the risk associated with the Delivery, unless it is covered by Clause 3.2, in which case the risk will be pass at the time of the Customer’s first use.
6.2.3 – Rights of ownership (title), use and other rights shall pass to the Customer on the Acceptance Date.
6.3.1 – Delivery shall be regarded as having taken place on the Acceptance Date, i.e., upon the Customer’s approval of the Acceptance Test, cf. Section 1 below.
6.3.2 – In case of the Delivery or any part or parts thereof is deployed before the Acceptance Date without a separate agreement or the Customer’s Acceptance, the Supplier is entitled to deem this part of the Delivery as Accepted by the Customer if the Customer does not cease to use the function in question without undue delay after receiving notice from the Supplier, and no later than seven (7) days after receiving said notice. The Acceptance Date shall in this case be set to the date of the Customer’s first use.
6.4 Delays and extensions
6.4.1 – The Supplier shall notify the Customer as soon as the Supplier becomes aware of a risk of delay or any other failure of proper performance of the Agreement. The Supplier’s notice shall contain the reasons behind the risks of delay.
6.4.2 – Where the Supplier provides the Customer with ten (10) days written notice in advance, the Supplier is entitled to extend the last date of Delivery.
6.4.3 – The Supplier’s extension does not entitle the Customer to any counter extension regarding payment.
6.4.4 – In case of extension of deadlines, the timelines in Appendix 3 (Time schedule) must be amended accordingly.
7.1 Acceptance Test
7.1.1 – The purpose of the Acceptance Test is primarily to determine whether the agreed functionality is present. The Acceptance Test shall be conducted by the Supplier with the Customer’s active participation.
7.1.2 – The procedure, content and approval criteria of the acceptance test are specified in Appendix 3 (Time Schedule).
7.1.3 – Testing of the system shall consist of an acceptance test. Following the successful conclusion of this test Delivery shall be regarded as having taken place.
7.1.4 – The Customer shall issue a written approval of the success of the Acceptance Test to the Supplier without undue delay. However, this written approval shall in no way be a requirement for the Delivery to take place.
7.1.5 – Delivery has taken place at the earliest of the following (a) a successful conclusion of this Acceptance Test and the Customer’s subsequent approval of said Acceptance Test, and/or (ii) fourteen (14) days following the last date of Delivery as determined by the Parties in Appendix 3 (Time schedule), unless the Customer’s lacking approval of the Acceptance Test is owing to circumstances attributable to the Supplier.
8.1 Supplier’s warranties and representations
8.1.1 – Supplier warrants and represents that:
a) Supplier has full power to enter into the Agreement, and to perform its obligations and that such performance will not violate any other agreement executed by it.
b) Supplier has obtained and shall maintain all approvals, licences and/or authorisations of any third party or governmental or regulatory authority that are required in order for the Supplier to enter into and perform the obligations under the Agreement.
8.2 Warranty Period
8.2.1 – The Warranty Period shall be six (6) months, from Delivery, except for Maintenance and other services which may not be directly associated with the Phases.
9.1 – Except as expressly stated in Appendix 2 (Blueprint), this Agreement does not grant the Customer any rights to copyrights, trademark rights, patent rights, rights of use, design rights, domain rights, as well as all results and partial results, including but not limited to rights in knowhow, preliminary drafts, diagrams, software, coding, websites, etc. and in all subsequent changes thereto.
9.2 – The Customer will not obtain any exclusive rights to Custom Software developed, tested, or distributed by the Supplier, except as expressly stated in Appendix 2 (Blueprint) for individual elements considered Custom Software or Appendix 1 (Deviations) in relation to this Clause 2.
9.3 – The Supplier is entitled to use the Customer’s name and logo as a general reference on the Supplier’s website and marketing material and is entitled to use the Customer’s name and logo as a general reference in relation to participation in procurements and other tenders.
9.4 – The Parties acknowledge that their intellectual property rights and their other work do not infringe any third party rights, including but not limited to any copyrights, patent rights or trademark rights.
9.4.1 – In case the Services infringe third-party intellectual property rights, the Supplier shall at its own choice be obliged and entitled to (i) retain proper licenses at its own choosing, (ii) change the Services in such a way that they do not infringe third-party intellectual property rights, or (iii) terminate the Agreement immediately and reimburse the Customer for Fees paid in the last twelve (12) months.In the event of any loss or damage to the Customer, what is stated in this Clause 4.1, shall be the Customer’s sole and exclusive remedy against the Supplier’s infringement of third-party intellectual property rights.
10.1.1 – The Customer shall pay all Fees to the Supplier for the Services in accordance with this Section 1.5 and Appendix 4 (Fees and Payment).
10.1.2 – Any and all modifications to this Section 1.5 and Appendix 4 (Fees and Payment), shall be set out in Appendix 1 (Deviations) to be considered as valid and accepted.
10.1.3 – Appendix 4 (Fees and Payment) contains all Fees to be paid by the Customer during the Term of the Agreement, excluding Consultancy Services and/or separate Projects.
10.1.4 – The Fees associated with Consultancy Services and/or separate Projects is subject to the price and payment terms contained within a separate Consultancy Agreement, attached as Appendix 5 (Consultancy Agreement).
10.2 Payment terms
10.2.1 – Unless otherwise is stated in Appendix 1 (Deviations), the Supplier shall invoice the Fees in accordance with Appendix 4 (Fees and Payment).
10.2.2 – If the Supplier has not received payment within thirty (30) days after the due date, and without prejudice to any other rights and remedies in this Agreement, the Supplier is entitled to both:
a) suspend the Delivery of all or part of the Services until full payment has been made, without incurring any liability in this suspension period; and
b) calculate and requirement the Customer to pay interest in accordance with the Danish Interest Act, from the due date and continuing until fully paid, whether before or after any judgment.
11.1 – All information received by a Party about the other Party in connection with (i) the negotiation and conclusion of this Agreement or (ii) the use or Delivery of the Services, must be treated as confidential before and after conclusion and termination of the Agreement, and may not be used other than as provided in this Agreement or disclosed to any third party, for whatever purpose, without the other Party’s consent, unless the information:
a) is or becomes available to the public other than as a result of disclosure contrary to this obligation;
b) is positively demonstrated to have been received by a Party from a third party who is lawfully in possession of and entitled to disclose the information;
c) by the provisions of this Agreement is allowed and/or intended to be disclosed to a third party or is required to be disclosed in order for the Party to comply with current legislation or other rules and regulations (including but not limited to any disclosure obligations imposed by a stock exchange), or to satisfy a specific court order; or
d) is disclosed to the Party’s accountant, legal advisor or others who are required by law to keep the information confidential.
11.2 – The Parties are strictly liable for their representatives, agents, and employees’ compliance with the duty of confidentiality laid down in this clause.
11.3 – A Party’s breach of its obligations may be restrained by an injunction or other interim remedies.
12.1 – The Supplier’s processing of personal data under this Agreement on behalf of the Customer will be subject to the Data Processing Agreement, attached as Appendix 6, by which the Parties acknowledge that the Customer is the Data Controller, and the Supplier is the Data Processor.
12.1.1 – The Parties agree that to the extent that the Customer’s data processing agreement is used as a replacement for the Supplier’s standard data processing agreement, any commercial terms, e.g., regarding liability, remuneration to the Customer, obligations beyond the minimum requirements of the GDPR, shall not be deemed effective towards the Supplier.
13.1 – Neither Party will be liable in damages for non-fulfilment of its obligations if the Party can prove that such non- fulfilment is due to circumstances beyond its control, and that the Party could not be expected, on or after conclusion of the Agreement, to have foreseen, avoided, or overcome such circumstances or their consequences.
13.2 – Force majeure includes (without limitation) war, civil war, riot, public restrictions, regulatory orders, import or export prohibition or other public intervention, natural disasters, vandalism, theft, failing energy supply, breakdown of communication lines, seizure of funds, disease outbreak, pandemics or any other extraordinary event beyond the Party’s reasonable control.
13.3 – In the event of force majeure, the Party’s obligations will be suspended until the time when the Party is again able to perform its obligations.
14.1 – Prior to the initiation of the Warranty Period:
a) both Parties may terminate the Agreement immediately if the other Party commits a material breach of its obligations under this Agreement and the breach has not been remedied within sixty (60) days after the other Party has requested such remediation.
b) the Supplier may terminate the agreement for convenience with thirty (30) days written notice, and the Supplier will in such case not be required to Deliver anything beyond the Phases already in progress or other Services that are non-terminable by nature.
14.2 – The Customer may solely terminate the Agreement if material defects occur during the Warranty Period and if the defects have not been remedied by the Supplier within reasonable time, no less than sixty (60) days.
14.2.1 – In case of termination, the Supplier shall within reasonable time repay the amounts paid by the Customer without any deduction for decrease in value or for ordinary use. The Customer shall return those parts of the Services that are affected by the termination, and to the extent this is not possible, pay the Supplier an amount corresponding to market value at the time of termination.
15.1 – Each Party is liable under the general rules of Danish law.
15.2 – The aggregate liability of either Party arising under or in connection with this Agreement whether in tort, contract, by misrepresentation, restitution or otherwise shall be limited to an amount corresponding to the Delivery Fee as determined in Appendix 4 (Fees and Payment). In any case the amount cannot exceed DKK 1,500,000.00 in total.
15.3 – The Supplier is in no circumstances liable for any operational loss, loss of profit, loss of data or other indirect loss and, unless otherwise stated.
15.4 – The limitations in Clauses 2 and 15.3 does not apply with respect toacts or omissions due to gross negligence or willful misconduct of either Party, or in relation to Consultancy Services covered by separate Consultancy Agreements.
16.1 – The Parties acknowledge that they will attempt to settle any disputes between them that may arise by negotiation in good faith.
16.2 – In case the Parties are unable to reach a negotiated solution, the Parties shall attempt to settle the dispute by mediation in accordance with the Association of Danish IT Attorneys’ (DITA) mediation procedure, found at www.danskeitadvokater.dk.
16.3 – To initiate mediation a Party must provide written notice to the other Party requesting mediation. A copy of the notice shall be sent to DITA. The mediation shall start not later than fourteen (14) days after DITA’s receipt of the mediation notice.
16.4 – The mediator shall be nominated by DITA. The mediation shall take place in Copenhagen and the language of the mediation will be Danish.
16.5 – No Party may commence any court proceedings in relation to any dispute arising out of this Agreement until it has attempted to settle the dispute by negotiation and mediation and the mediation has terminated. As a minimum, a Party shall be obliged to attend the first meeting convened by the mediator.
16.5.1 – A Party shall, however, be entitled to commence court proceedings if any delay of such proceedings may result in the forfeiture of any right, e.g., due to time-barring.
16.6 – In the event of a dispute between the Parties, unless the Agreement is terminated, the Parties, shall continue to perform its obligations under this Agreement in good faith and shall not suspend or withhold any payment or deliverable or information, including the Services, during the resolution of such dispute.
17.1 – Unless otherwise follows from Appendix 1 (Deviations) or the Change Control Procedure, the Agreement may only be amended through a written addendum signed by both Parties and included as a sub-appendix to Appendix 1.
18.1 – The rights provided under the Agreement are only granted to the Customer, and shall, therefore, not be considered as granted to any subsidiary or holding company of the Customer, unless otherwise is agreed in writing between the Parties.
18.2 – The Customer may not assign its rights or obligations under this Agreement in whole or in part to any third party without the prior written consent of the Supplier, unless the assignment is part of an overall assignment of that Party’s business or part of such business to a company in the same group as that Party, a wholly-owned subsidiary, parent company or sister company.
18.3 – Clause 2 does not apply to the Supplier. The Supplier may, therefore, assign its rights or obligations under this Agreement in whole or in part to any third party without the prior written consent of the Customer.
19.1 – Any dispute or disagreement arising directly or indirectly out of this Agreement, or its interpretation is to be settled by the City Court in Aarhus in accordance with Danish law, excluding Danish conflicts of law rules and the United Nations Convention on Contracts for the International Sale of Goods (CISG).
19.2 – The mediation agreement referred to in the mediation procedure in Clause 16.2, shall be governed by and settled in accordance with Clause 19.1.