“Buyer Data” means: (i) all data in any form provided by Buyer to Supplier, or (as applicable) entered in or used in conjunction with any software or platform provided by Supplier to Buyer, Buyer’s authorized Affiliates and Buyer’s Users; (ii) Buyer’s Customers’, Employees’ or Users’ personal identification information, and (iii) any and all input, feedback, responses, or other communications directed to Buyer by Buyer’s Users or Customers, by any means, including without limitation by, through or using Supplier software or platform and (iv) any reporting, analysis, or recommendations incorporating or related to any Customer or User input, feedback, responses or communications generated by Supplier and provided to Buyer.
“Change Order” means a written modification to the Goods or Services as described in a Purchase Order, Statement of Work or Order Form, approved and signed by authorized representatives of the Parties, and incorporated into the Purchase Order, Statement of Work or Order Form.
“Contract” means: (i) a Purchase Order incorporating these terms and conditions (which include the Data Processing Agreement and the Service Level Agreement,) and any Amendment or Addenda or (ii) this MTC, along with any Amendment, Addenda, Statement of Work, Order Form, Change Order, or other authorized documentation that together constitute the full agreement of the Parties.
“Customer” means a natural or corporate person who: (i) has obtained or is seeking to obtain any form of product or service from Buyer, including without limitation publications, memberships, certification examinations, training, online or in-person event access, awards, informational materials or licensing rights; or (ii) has visited a website published or sponsored by Buyer; or (iii) has responded to a solicitation, survey, invitation, or other outreach by Buyer.
“Data Controller” means the entity that determines the purposes and means of the Processing of Personal Data.
“Data Processor” means the entity which Processes Personal Data on behalf of the Data Controller.
“Data Subject” means the individual to whom Personal Data relates.
“Deliverables” means all Goods and Services identified in the Contract.
“Designated Representative” means any individual named by a Party who will act as the liaison with the other Party for communications relating to the Purchase Order or Contract, otherwise known as “Supplier Designated Representative” and “Buyer Designated Representative”. Each Designated Representative will be identified to the Parties in writing and may, as necessary, appoint a further designee in writing.
“Material Breach” means a breach by a Party of: (i) the confidentiality, privacy, intellectual property rights or data security provisions of the Purchase Order or Contract, or (ii) a breach of another provision of this Purchase Order or Contract that has a material impact on the value or benefit the non-breaching Party derives from this Contract.
“Personal Data” means any information relating to an identified or identifiable person.
“Processing” means any operation or set of operations which is performed upon Personal Data, whether or not by automatic means, such as collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction (“Process”, “Processes” and “Processed” shall have the same meaning).
“Purchase Order” means the document describing and authorizing the purchase of Goods or Services, issued to the Supplier by Buyer and includes the terms and conditions of purchase.
“Statement of Work” means a detailed description of Goods or Services as may be provided by Supplier to Buyer pursuant to the Contract, and agreed to by the Parties, including without limitation the type and scope of the project, authorized service providers, hourly billable rate for services or price quoted for the project, estimated time for the commencement and completion of the project, milestone dates and projected accomplishments by such dates, deliverables, and reporting procedures for tracking and communicating the progress of the Services.
“Services” means the professional services to be provided by Supplier, as described in more detail in a Statement of Work, Order Form, Change Order or other authorized documentation incorporated into the Contract, and Supplier’s obligations under the Contract.
“User” means, as applicable, a person who is authorized to access and use, and who accesses and uses, any software or platform provided pursuant to or related to a Contract.
“Work Product” means materials developed specifically for Buyer and delivered to Buyer by Supplier as deliverables under a Contract.
The delivery dates specified in any Purchase Order or delivery schedule stated on any Statement of Work or Order Form shall be of the essence. Supplier shall immediately notify Buyer in writing of any incident or cause which prevents delivery of Goods or Services on the dates scheduled, specifying the reason for delay and if possible the estimated revised delivery date. If Supplier fails to so notify Buyer, Buyer shall be entitled to compensation for any additional actual, substantiated costs or expenses incurred by Buyer that could have been avoided if Supplier had properly notified Buyer. Supplier shall, at no extra cost to Buyer, take all necessary actions (including overtime work, urgent freight etc.) to reduce the delay period to a minimum and to mitigate the impacts thereof to Buyer. Whenever Supplier, for reasons not attributable to a force majeure event, does not meet the established delivery date for Goods or Services, Buyer shall be entitled to receive liquidated damages, notwithstanding and in addition to all other remedies available to Buyer, at the rate of two percent (2%) of the value of the delayed Goods or Services for each complete week of delay up to a maximum of ten percent (10%) of the total value of the delayed Goods or Services. If delay in delivery is such that Buyer is entitled to maximum penalty and if the Goods or Services still are not delivered, Buyer may terminate the Purchase Order or Contract in whole or in part without penalty. In no event shall Buyer be prevented from exercising termination rights under the Purchase Order or Contract during any delay period.
All of Supplier’s work shall be subject to acceptance by Buyer. Unless otherwise set forth in a Purchase Order or Contract, the acceptance period shall be thirty (30) days from Buyer’s receipt of the Goods or Services. Supplier’s Goods and Services will be accepted if they meet the requirements of the Purchase Order or Contract. Unless otherwise set forth in a Purchase Order or Contract, acceptance procedures will be as follows: i) Fixed Fee Goods and Services: following Buyer’s receipt of Deliverables, Buyer will verify, in its reasonable discretion, that each Deliverable conforms in all material respects to the specifications set forth in the applicable Purchase Order or Contract. Acceptance of Deliverables that meet such specifications shall not be unreasonably withheld, delayed or conditioned by Buyer; (ii) Time and Materials Services Engagement: when payment for the Services is on a time and materials basis, Services will be deemed accepted upon performance, provided that Services are compliant with the professional services warranty as set forth in the Purchase Order or Contract. Notwithstanding the foregoing, acceptance does not preclude or waive any future warranty claim by Buyer; (iii) Constructive Acceptance. if Deliverables are provided on a time and materials basis, with acceptance upon performance, or another acceptance right upon performance or delivery is set forth in a Purchase Order, Statement of Work or Order Form, Buyer’s acceptance of Supplier Deliverables shall be deemed to have occurred if Buyer does not: (a) notify Supplier to the contrary in writing within thirty (30) days from the date the Deliverable was delivered to Buyer, and (b) specify in reasonable detail all deficiencies and nonconformities in the Deliverable of which Buyer knows or should know through reasonable inspection following Buyer’s inspection of each Deliverable.
Supplier is responsible for obtaining in writing all rights, assignments, and permissions from any subcontractors, individuals, or entities assisting Supplier in the execution of the Purchase Order or Contract or whose materials will be used in the execution of the Purchase Order or Contract, and shall deliver to Buyer a copy of all such writings. Supplier shall also be responsible for paying any fees owed to such subcontractors, individuals, or entities. Supplier agrees to indemnify and hold Buyer harmless against any loss, damage, expense, or cost, including reasonable attorneys’ fees, arising out of any claim, demand or suit asserting that any materials or Deliverables delivered to Buyer by Supplier infringe any copyright, patent, trade secret, trademark, or other right.
Notwithstanding the above, any proprietary tools, techniques, processes, materials, systems, generalized ideas, concepts, know-how, methods or skills, in any format, which Supplier possessed prior to initiating work on a Buyer Purchase Order or Contract, or that otherwise are intrinsic to Supplier’s business, or that is provided in the same or substantially similar form to multiple customers of Supplier (“Supplier IP”), shall be and remain the sole property of Supplier. Supplier hereby grants to Buyer a non-exclusive, non-transferable, irrevocable, world-wide, permanent, fully paid license to use, copy, modify, sublicense and display such Supplier IP as the same are incorporated into Supplier’s Deliverables for Buyer. As applicable, Supplier will disclose to Buyer the Supplier IP that will be used in or with the Deliverables delivered to Buyer and will clearly delineate any instances where Supplier IP will be used with, but not be included in the Deliverables. Further, Supplier will identify to Buyer instances where it is embedding or using third party intellectual property in or with the Deliverables delivered to Buyer, including without limitation software, open source tools, commercial tools, frameworks, accelerators, or libraries.
Buyer may totally or partially cancel the Purchase Order or Contract, without incurring any cost, by providing thirty (30) days’ advance written notice to Supplier in any of the following cases: (i) whenever, in the sole opinion of Buyer, delays in the manufacturing, assembly or delivery of Goods or Services could prevent Supplier from meeting the delivery times, quality levels, requirements or material project deadlines specified in the Purchase Order or Contract; (ii) Buyer has determined in its sole judgment that the Goods or Services do not meet expected standards of quality or efficacy or otherwise do not meet Buyer’s reasonable expectations; (iii) in the event that there is a material change in Buyer’s strategy, business plan, market assessment, risk assessment, financial condition, or other change which in Buyer’s sole judgment requires termination of the Purchase Order or Contract; (iv) the event of a “Change of Control” of Supplier. For the purposes of this Clause “Change of Control” means the likelihood of one or more persons acting together taking the control of the Supplier so that, in the reasonable opinion of Buyer, its interests are adversely affected. Such “Change of Control” shall take place when, after the direct or indirect acquisition of the Supplier, the Supplier belongs to the same group as the acquirer or acquirers of its shares according to applicable law.
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