certace Terms of Service for clients

Last updated: June 6, 2017

 

This Services Agreement (hereinafter referred to as the "Agreement") is entered into and shall be effective immediately upon acceptance, by and between certace ag, (on its behalf and on behalf of certace service gmbh), located at Seefeldstrasse 293, CH-8008, Zurich, Switzerland  (hereinafter referred to as "certace")

and

the Client entity (together with its affiliated companies) or person, (hereinafter referred to as “Client“).

(certace and Client together hereinafter referred to as "Parties" and each as "Party")

 

Whereas, certace is rendering consulting services (hereinafter defined as "Services") to Client through independent consultants (hereinafter referred to as "Experts");

Whereas, certace shall carefully select an Expert best suited to provide the Services required by Client, whereby it is understood that the provision of the Services is entirely assigned and transferred to the Expert with no involvement and no responsibility of certace;

Whereas, this Agreement sets forth the general terms and conditions pursuant to which certace and the Expert will provide Services to Client;

Therefore, the Parties hereto agree as follows:

 

Section 1. Scope

This Agreement is a consulting agreement, which may govern one or more assignments ("Assignment(s)") as defined in specific work statements ("Work Statements"). This Agreement shall not give rise to any obligation on the part of Client to obtain Services from certace unless and until one or more Work Statements are entered into. The booking of the Work Statement shall be effective upon Client providing Client’s billing details and clicking “CONFIRM BOOKING”. Upon effective booking by Client, each Work Statement shall be deemed to be incorporated into, and made a part of, this Agreement.

 

Section 2. Definition of Work Statement

Client submits briefing documents to certace describing a possible assignment. On the basis of such briefing documents, certace will identify an Expert who has the knowledge, experience and expertise to render services necessary to attain the results described in the briefing documents. certace will solicit the Expert's feedback on Client's briefing documents and will liaise with Client and the nominated Expert to define a briefing document that can be implemented as an Assignment. If necessary to clarify questions around the Client’s data or other open issues, certace will set up a conference call between Client's representatives, the nominated Expert and certace. Once the briefing documents are completed and the Assignment can be defined, Client and certace shall execute a Work Statement. The Work Statement shall describe the Services to be performed (assignment) and the deliverable to be provided, the name of the Expert who shall act as Expert, the expected assignment period and the expected fees.

 

Section 3. Performance of Services

The Parties understand and agree that certace assigns and transfers the performance of the Services and the provision of the work products and other deliverables specified in each Work Statement to the Expert identified in the Work Statement who acts as substitute to certace. Such assignment and transfer releases certace from any and all obligations to perform the Services and to provide the work products and other deliverables under the Work Statement. certace's sole responsibility is the identification of the Expert having the necessary skills and experience for the Services under each Work Statement. certace is not responsible for the quality of the Services, the work products and the other deliverables, as well as the supervision of the Expert and its Services provided. For each Work Statement, Client shall designate an employee or contractor who shall act as Client's representative for the implementation of the project according to such Work Statement. Client is responsible for the provision of all information, instructions, data and material necessary for the performance of the Services. Client undertakes to provide the Expert with all assistance and co-operation that Expert reasonably requests. The Expert will report directly to Client and will provide the Services in accordance with Client's reasonable and lawful instructions. Client is responsible for setting, reviewing and monitoring schedules, the performance of the Services and all other aspects of the project defined by the Work Statement. The Services shall be performed at sites mutually agreed upon between the Expert and Client.

 

Section 4. Rights of Title

Client shall own all worldwide right, title and interest to all work products (reports, work papers, programs, manuals, files, listings and any other material) prepared under this Agreement and the corresponding Work Statement(s) by the Expert for Client. certace agrees to give Client reasonable assistance, at Client’s expense, required to protect the rights defined in this paragraph. To the extent that intellectual property owned by Expert is necessary or useful for the exploitation of the work products (hereinafter referred to as "Background Intellectual Property"), Expert hereby grants to Client a non-exclusive, non-transferable royalty-free, perpetual license to such Background Intellectual Property in connection with such work products. Expert shall retain all right, title and interest in the Background Intellectual Property. Client acknowledges that the Expert has the right to maintain for its record keeping purposes a copy of all work products, subject to the confidentiality restrictions of this Agreement.

 

Section 5. Termination

This Agreement can be terminated at any time by either Party except during the fulfilment of any Work Statement. During the fulfilment of any Work Statement, either Party can terminate the Agreement upon giving 10 (ten) business days' notice to the other Party. Notwithstanding any such termination, Client shall be liable for all service fees, and other expenses and costs incurred by certace and the Expert on Client's behalf up to the date of termination. In the event of termination of this Agreement, the obligations of the parties under Sections 4, 6, 8, 10, 11, 13, 14 and 16-22 shall survive.

 

Section 6. Fees, Expenses and Payment

certace shall be paid the service fees and other amounts set forth in each Work Statement. If Assignment-related travel is required by Client, the expense allowance shall be covered by Client.  If Client requires certace to provide Services during weekends or public holidays, such work shall be compensated at the fees agreed in the relevant Work Statement. Assignment-related travel is considered not to be working time. certace shall bill Client on a monthly basis. Payment terms shall be net twenty-one (21) days. All objections by Client to an invoice must be made in writing to certace within fourteen days after the date of the invoice. If no objections are received by certace within such fourteen-day period, the invoice shall be deemed accepted by Client. If payment has not been received as set forth herein, certace reserves the right, in addition to any other rights it may have, to (i) suspend the Services until such payment is made in full, (ii) charge interest on the amount past due at the lesser of 1.5% per month or the maximum allowed by law and (iii) invoice Client for all costs of collection including reasonable attorney's fees. Excluding certace's own payroll and income taxes, Client shall be responsible for payment of all taxes, including VAT, state, local or municipal sales taxes, if any, levied upon the Services provided under this Agreement.  If Client is claiming tax-exempt status, Client shall provide certace with tax-exemption certificates prior to the start of an Assignment.

 

Section 7. Independent Contractor Relationship

The Parties understand and agree that the persons assigned by certace to perform the Services under this Agreement are Experts retained by certace. Under no circumstances are such persons to be considered Client's employees or agents and neither certace nor the Expert shall hold out themselves as employees, agents, officers, managers, directors or representatives of Client. certace and Expert shall perform its obligations under this Agreement as an independent contractor and not as an agent or joint venture partner of Client. certace shall assign the performance of the Services as defined in the Work Statement to the Expert who shall be exclusively responsible for the performance of the Services. The Expert is an independent consultant and is not an employee, agent, officer or joint venture partner of certace.

 

Section 8. Experts

The Expert named in the Work Statement for the provision of the Services shall not be removed or reassigned without Client's prior consent. certace shall make each of its experts aware of Client's standards of conduct, confidentiality obligations and any other relevant Client policies that Client provides to certace upon booking of the Work Statement. certace shall require its experts who perform Services related to this Agreement and the corresponding Work Statement(s), to agree in writing to be bound to terms that are comparable in scope to the provisions of this Agreement.

 

Section 9. Non-Solicitation

Subject to Section 10 during the term of this Agreement and for twelve (12) months thereafter, Client will not, directly or indirectly, encourage or solicit to hire, or otherwise hire or engage for performance of services any expert of certace who Client becomes aware of in connection with this Agreement. Client also agrees that it will not refer such expert directly to subsidiaries, parent companies, partnerships, holdings or investors related to Client without processing such request through certace. Client also agrees that it will not induce any such expert to recruit or refer experts of any kind to Client or third parties nor will Client co-operate with any efforts of such expert to do the same.

 

Section 10. Option to Hire Talent

Nothing in this Section 10 is intended to constrain the employment of any expert. Subject to Client's prior written notice to certace, the right to a reasonable wind-down period described below, and full payment of the buyout fee described in this Section 10, Client may, at any time during or after the term of this Agreement, opt to directly engage or employ any expert. Such wind-down period is typically thirty (30) days, but may be reasonably adjusted by certace based on the expert's then-existing commitments to certace related to certace's business, including but not limited to commitments to other Clients.

With respect to each Client-Hired Expert (defined below), Client will within thirty (30) days of hiring or engaging such expert, pay certace a placement fee equal to a minimum 30% of such person's total first year compensation (or equivalent) from all sources, including, without limitation, consulting fees, commissions, base salary, bonus and the fair market value of any non-monetary compensation. certace's expenses incurred replacing a Client-Hired Expert hired hereunder cannot be ascertained with certainty, so the parties agree that the buyout fee is a reasonable estimate of certace's expenses to find, recruit, assess, and replace each Client-Hired Expert, and otherwise operate its business with respect to such replacement expert. "Client-Hired Expert" means an expert who meets both of the following two criteria: (1) the expert is introduced to Client by certace under a Work Statement or in preparation thereof, and (2) the expert is hired as an employee of or otherwise engaged by Client (a) during the term of such expert's work for Client under or in connection with this Agreement or in preparation thereof or (b) during the twelve (12) months' period immediately following such Services.

 

Section 11. Other Mandates

During the term of any Work Statement, the Expert identified in any Work Statement shall not provide services which might conflict with the duties under such Work Statement and shall remain free from any conflicts of interest that would impair the proper performance of the Services.

 

Section 12. Confidentiality

Client may have already and may in the future disclose to the Expert, from time to time, all forms and types of Client's financial, business, marketing, operations, scientific, technical, economic and engineering information, whether tangible or intangible, including, without limitation, know-how, trade secrets and all other proprietary information (collectively, "Confidential Information").

For a period of three (3) years after disclosure, Expert will hold in confidence, will not disclose to any third party, will use at least commercially reasonable efforts to prevent unauthorized access to, and will not use (except for the purpose of considering a new, revised or continuing business relationship between the Parties hereto, and the performance of certace's rights and obligations under any business relationship between the Parties) any Confidential Information of Client.

 

Section 13. Use of Trademark and Business Name

Client agrees that certace can use Client's name, trademark or service mark for business development purposes, including but not limited to, business presentations and reference client lists.

 

Section 14. Representations

certace represents

  1. to select the Expert in a careful, diligent and professional manner and ensure that the Expert has skill and experience commensurate with the requirements for the provision of the Services defined in the Work Statement;
  2. that it will hold personal data of Client in confidence in compliance with applicable data protection laws;
  3. that its officers, directors, employees and experts at all times comply with all relevant anti-corruption and anti-bribery legislation.

Other than those contained in this section, certace makes no other representations or warranties with respect to the Services.

 

Section 15. Limitation of Liability

certace, its employees or experts shall not be liable for any error of judgment or for any damage incurred or loss suffered by Client, or Client's directors, officers or shareholders in connection with this Agreement and the corresponding Work Statement(s), unless such damage or loss arises from gross negligence or willful misconduct. Both Parties understand and agree that neither Party will be liable for any punitive, incidental, consequential or indirect damages, and each Party hereby waives any right to seek such damages against the other Party. Notwithstanding the above, the total liability for any damage arising under any Assignment and this Agreement shall in no event exceed CHF 10’000.

This limitation applies to any claim irrespective of its legal basis (i.e., contract, tort or otherwise).

 

Section 16. Entire Agreement

This Agreement and the Work Statement(s) referred to herein, as well as any Amendments (as defined below), shall constitute the entire agreement between the Parties and supersede all previous or subsequent communications, representations and understandings, whether oral or written, between the Parties.

In the event of a conflict in terms between this Agreement and the terms of any Work Statement, the terms of this Agreement control except if the Parties in any Work Statement have agreed otherwise in deviation from this Agreement and have expressly mentioned such deviation.

 

Section 17. Amendments

No amendments or other variation to this Agreement ("Amendment") – to the exclusion of Work Statements – shall be effective unless in writing and signed by an authorised person on behalf of each Party. Work Statements are validly executed if scanned copies of signed versions are exchanged electronically unless a Party objects within five (5) days after the exchange.

 

Section 18. Severability

If any provision of this Agreement is determined to be unenforceable or invalid, the remaining provisions of this Agreement shall remain in full force and effect.

 

Section 19. Force Majeure

certace and Client shall not be liable for any failure to perform or delay in performance of its obligations under this Agreement or any Work Statement(s), resulting from the elements, acts of God or any other cause beyond the reasonable control of the Party failing to perform.

 

Section 20. Notices

Any notices required under this Agreement shall be made in writing. Notices shall be delivered in person or sent by e-mail with confirmation by registered mail on the subsequent day at the latest to the addresses in the Work Statement(s). Notice shall be effective upon receipt.

 

Section 21. Execution

This Agreement is not binding upon either Party until it is signed by authorised corporate representative(s) of Client and certace.

 

Section 22. Governing Law

This Agreement is governed by and shall be construed in accordance with the substantive laws of Switzerland, and the Parties submit to the exclusive jurisdiction of the courts of the canton of Zurich, venue being Zurich.

 

Exhibit A

Sample Work Statement

Work Statement

Assignment parameter

Client contact person: Max Mustermann
Assignment summary: Lorem ipsum dolor sit amet consectetuer
Expected deliverables:
   1) Lorem ipsum dolor sit amet consectetuer
   2) Lorem ipsum dolor sit amet consectetuer
Expected assignment period: Month Day, Year until Month Day, Year
Place of Performance: Remote
- Background Intellectual Property: if applicable

Expert parameter

Expert name: Firstname Lastname
Expert role: e.g. Data Strategist
- Service fee per day € XXXX per day plus taxes
Expenses: No travel expenses will occur for remote assignments
- Expected period: Month Day, Year until Month Day, Year
Expected workload: Expected X days per week (XX%), total maximum XX days

 

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