GENERAL TERMS AND CONDITIONS OF RESEARCH, ANALYSIS & PROJECT SERVICES

Analysis, Research and Development Services, Feasibility studies, Market reports & Analysis, Engineering work and similar services ("Project") contracted to or through Naiss, any of its partners, directors, advisors, representatives or affiliates (“Consultant”) are subject to the following General Terms and Conditions as set forth in this agreement.

1. SCOPE AND ACCEPTANCE

The Project shall comprise the work defined in the quotation of Consultant. The quotation is non-binding and valid for thirty (30) days from the date of issuance. The quotation is subject to change or withdrawal prior to written acceptance by Customer. All purchase orders or agreements issued by Customer are subject to acceptance by Consultant by means of a written confirmation or signed agreement.

The scope of the Project is exclusively controlled by a written confirmation or signed agreement or by Customer online acceptance of this Terms and Conditions ("Agreement").

2. PERIOD OF PERFORMANCE

Where the quotation or the Agreement includes a period of performance or deadlines, these shall only be deemed to be binding after express acknowledgement by Consultant. Should Consultant recognize that the binding period of performance or the binding deadline cannot be met then it shall notify to Customer of the reasons for delay and shall agree on an appropriate adjustment with Customer.

3. COMPENSATION FEES AND TAXES

The compensation fee shall be a fixed price unless otherwise agreed by both parties, Consultant and Customer. Notwithstanding this, the contracting parties may agree that the fee will be charged according to cost, where applicable with a maximum cost limit. VAT and other taxes in effect or later levied shall be added to the fee in each case, if applicable. Consultant shall immediately notify Customer if it foresees that the result intended by this Agreement cannot be achieved at the agreed fee. Consultant shall simultaneously propose an adjustment of the fee to Customer. Should this be necessary for reasons which were neither foreseeable when the Agreement was concluded nor the responsibility of Consultant and if no other agreement is reached with Customer, then the adjustment proposed by Consultant shall be binding.

4. PAYMENT TERMS

Unless otherwise specified in this Agreement, Consultant will invoice Customer, and Customer will immediately pay such invoice on receipt for each installment in accordance with the agreed payment schedule and due date. The due date shall be the date stated in the invoice. Payments shall be made without a cash discount and with an indication of the invoice number and Project reference to the account designated by Consultant. All invoices shall be payable within fourteen (14) after date of invoice.

Agreements are subject to Consultant's on-going credit review and approval. Setoff against claims of Consultant shall only be allowed if the counterclaim is uncontested or if it is the subject of a final court decision.

Customer may only exercise a right of retention if its counterclaim is based on the same contractual relationship. Customer shall pay legal interest plus 1% on any amount not paid when due. If Customer fails to pay any amount when due, in addition to any other rights or remedies available to Consultant at law or in equity, Consultant may discontinue the performance under this Agreement, or deduct the unpaid amount from any amounts otherwise owed to Customer by Consultant under any agreement with Customer.

In any action initiated to enforce the terms of the quotation or this Agreement following a Customer default, Consultant shall be entitled to recover as part of its damages all costs and expenses, including reasonable attorneys’ fees, in connection with such action.

5. PROJECT RESULTS AND RIGHTS OF USE

The Project result shall be made available to Customer after completion of the Project in accordance with the quotation or this Agreement. Customer shall be granted a non-commercial, non-exclusive right of use of Project results for internal use exclusively unless specified otherwise. Consultant will retain full copyright of project results, protected works, data, materials and know-how created during the performance of the Project. If during the performance of this Agreement already existing industrial property rights or copyrights of Consultant or its partners, directors, advisors or representatives are used which are required for Customer's use of the result of the Project, then Customer shall be granted a non-exclusive, royalty-bearing right of use under a separate agreement unless other obligations entered into by Consultant preclude this.

6. LIABILITY

Consultant shall be responsible for applying professional care and good workmanship and for complying with accepted scientific and business standards but not for actually achieving the Project goal. The liability of Consultant, or any of its partners, directors, representatives, affiliates or agents in the case of violation of obligations and tort shall be limited to intent and gross negligence. Consultant will never be liable for any damage resulting from the failure of Customer to timely provide complete and accurate information. In any case the liability for any shortcomings in the execution of the Project will be limited to the amount of the compensation fee that Consultant has received in relation to the Project. In addition, Consultant will only be liable for a maximum of the fees that Consultant has received for the last six (6) months relating to the Project. Should Consultant neither fulfill the performance as agreed upon nor do so at the time due nor in the manner agreed upon, then Customer may only demand compensation in lieu of performance if Customer has unsuccessfully set an appropriate deadline for the performance by Consultant including the statement that it would otherwise reject acceptance of the performance after the passing of that deadline.

7. LIMITATION OF LIABILITY

THE TOTAL LIABILITY, IF ANY, OF CONSULTANT FOR ALL DAMAGES AND BASED ON ALL CLAIMS, WHETHER ARISING FROM BREACH of CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, INDEMNITY, STRICT LIABILITY OR OTHER TORT, OR OTHERWISE, ARISING FROM A SERVICE IS LIMITED TO THE PRICE PAID HEREUNDER FOR THE SERVICE.

8. DISCLAIMER

IN NO EVENT SHALL CONSULTANT BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES, INCLUDING WITHOUT LIMITATION, LOST REVENUES OR PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES WHETHER ARISING FROM BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, INDEMNITY, STRICT LIABILITY OR OTHER TORT.

9. SPECIAL CONDITIONS FOR DELIVERY AND WORK PERFORMANCE WITHIN THE PROJECT

Where Consultant, on the basis of an express commitment owes performance or delivery of tangible results corresponding to the accepted state-of-the art as the result of the Project then in the case of defects the relevant provisions from the General Terms and Conditions of Service of Consultant shall only be applicable subject to the following Sections.

Should the result of the Project generated by Consultant prove to be defective, then Consultant shall first be given the opportunity to supplementary performance - depending on the nature of the result of the Project, the defect and other circumstances also repeatedly - either by means of remedying the defect or substitute delivery. Should Consultant reject supplementary performance or if supplementary performance cannot be achieved or Customer cannot reasonably be expected to accept supplementary performance, then Customer may either terminate this Agreement or demand reduction of the fee owed (reduction). The right to termination may be exercised only in case of a serious defect. Such right lapses if Customer does not declare the termination of the Agreement within fourteen (14) days after receiving notification of rejection or failure of supplementary performance or at the latest fourteen (14) days after the date at which it is recognized that Customer cannot reasonably be expected to accept supplementary performance.

Customer shall immediately examine the Project result supplied by Consultant and report any defects found without undue delay. Consultant only warrants for recognizable defects if it has been notified thereof within a period of fourteen (14) days from the date of delivery. Claims due to defects shall be statute-barred in accordance with the provisions of Section 10.  

10. STATUTES OF LIMITATION

The claims of Customer for breach of duty and tort shall be statute barred within three (3) months. This shall not apply where legislation prescribes longer periods of time according to California, US law or regulations or Consultant is liable due to intent or gross negligence. Should acceptance of the Project result be agreed upon, the statute of limitations on claims due to defects pursuant to Section 10 shall commence upon acceptance, otherwise upon delivery. Negotiations between the contracting parties over claims or over circumstances giving rise to claims shall suspend the statutes of limitation. The suspensive effect shall end if one of the contracting parties has not complied within four (4) weeks with the request.

11. RETENTION OF TITLE

Consultant retains full ownership of the result of the Project. Customer shall only be granted the right of use of Project results according to Section 5 after full payment of the agreed fee.

12. CONFIDENTIALITY

During discussions leading up to this Agreement, and during the course of performing the Project work, it is anticipated that Consultant and Customer will learn confidential and/or proprietary information of the other. Parties will keep confidential, and not use, except in connection with the performance of the Project work as defined hereunder in this agreement, any information which is provided in writing and marked as confidential by either party, or if disclosed orally, described in a writing within 30 days after disclosure, including without limitation any information which relates to any Project Research to be performed under this Agreement, any information which either party may acquire with respect to the other party’s business, and any information relating to new products, customers, pricing, know-how, processes, and practices, ("Confidential Information.") The obligations of confidentiality and non-use of Confidential Information shall survive the termination or expiration of this Agreement for a period of two years, unless or until:

(a) such information shall become known to third parties or shall become publicly known through no fault of Consultant, or

(b) such information was already in a party’s possession, as evidenced by sufficient proof or written documentation prior to the disclosure of such information to the informing party, or
(c) such information shall be subsequently disclosed to either party on a non-confidential basis by a third party who, to the best of the receiving party’s knowledge, is not under any obligation of confidentiality.

(d) such information is specifically authorized by the informing party, in writing, to be disclosed.

(e) such information is required to be disclosed by applicable law or order of a court of competent jurisdiction in which case the disclosing party agrees to notify  the other party of such requirement so that party may take steps to narrow or avoid disclosure.

13. PUBLICATION AND ADVERTISING

Customer shall not be entitled to publish the result of the Project including identification of the author without prior consultation and written approval from Consultant. Such consultation shall take into consideration that, for instance, applications, and/or registrations of intellectual property rights are not impaired. For purposes of advertising, Customer may only mention the name of Consultant with their express consent, which consent shall not be unreasonably withheld. Consultant retains the right to publish Project results partially or totally as well as derivations of it always in compliance with confidentiality clauses set forth in these Terms of Service and/or in any additional Confidentiality Agreement in existence with the Customer.

14. TERMINATION

Should no essential progress in work have been achieved within a significant period of performance then each contracting party shall be entitled to terminate this Agreement with thirty (30) days’ written notice ("Period of Notice") to the end of a calendar month. However, termination by Customer is excluded within a ninety (90) day's period since the beginning of the Agreement. Except as provided in this Section 14, there shall be no further right of termination.

Each contracting party shall be entitled to terminate this Agreement upon the other party’s material breach of this Agreement, provided that the terminating party has given the defaulting party no less than thirty (30) days’ prior written notice of such breach and the defaulting party has not cured such default by the end of the notice period. Upon termination Consultant shall submit within thirty (30) days the result of the Project achieved until expiry of the Period of Notice.

Customer shall be obliged to compensate Consultant for costs incurred up to the expiry of the Period of Notice. Should any Personnel costs be part of the Project, they shall be reimbursed as incurred up to the date of termination.

15. GENERAL TERMS

The following additional terms shall be applicable to this Agreement:

FORCE MAJEURE. Each party shall be excused from performing its obligations (except for payment obligations) arising from any delay or default caused by events beyond its reasonable control including, but not limited to, acts of God, acts of third parties, acts of any civil or military authority, fire, floods, war, embargoes, labor disputes, acts of sabotage, riots, accidents, delays of carriers, subcontractors or suppliers, voluntary or mandatory compliance with any government act, regulation or request, shortage of labor, materials or manufacturing facilities.

BANKRUPTCY. If Customer becomes insolvent, is unable to pay its debts when due, files for bankruptcy, is the subject of involuntary bankruptcy, has a receiver appointed, or has its assets assigned, Consultant may cancel any unfulfilled obligations, or suspend performance; however, Customer’s financial obligations to Consultant shall remain in effect.

ASSIGNMENT. Customer may not assign any rights or obligations in connection with the transactions contemplated by the quotation or the Agreement without the prior written consent of Consultant, which consent shall not be unreasonably withheld, and any attempted assignment without such consent shall be of no force or effect.

GOVERNING LAW AND COMPETENT COURT. All transactions contemplated by the quotation or this Agreement shall be exclusively governed by the laws of California, USA and all disputes shall be exclusively settled by the applicable court in California.

ENTIRE AGREEMENT. These General Terms and Conditions, the terms and conditions set forth in the quotation and in this Agreement constitute the entire understanding and agreement by and between the parties with respect to the transactions contemplated by the quotation or in connection with this Agreement and supersede any previous understandings or agreements between the parties, whether written or oral, regarding the transactions contemplated by the quotation or in this Agreement.

Divergent, contrary, or additional terms requested by the customer (“Customer”) shall not form part of this agreement between Consultant and Customer without the prior written consent of Consultant.

The pricing in the quotation is based upon the terms and conditions in the quotation. No additional terms, conditions, consents, waivers, alterations, or modifications shall be binding unless in writing and signed by the parties. Customer’s additional or different terms and conditions, whether stated in a purchase order or other document issued by Customer, are specifically rejected and shall not apply to the transactions contemplated by the quotation or this Agreement.

HEADINGS. The headings in the quotation and in this Agreement are intended for convenience only and shall not be used to interpret the quotation.

SEVERABILITY. If any provision of the quotation or in this Agreement is deemed to be illegal, unenforceable, or invalid, in whole or in part, the validity and enforceability of the remaining provisions shall not be affected or impaired, and shall continue in full force and effect.

NOTICES. Notices or other communications shall be in writing, and shall be deemed served if delivered personally, or if sent by facsimile transmission, by overnight mail or courier, or by certified mail, return receipt requested and addressed to the party at the address set forth in the quotation or in this Agreement.

PERFORMANCE. The failure of Customer or of Consultant at any time to require the performance of any obligation will not affect the right to require such performance at any time thereafter. Course of dealing, course of performance, course of conduct, prior dealings, usage of trade, community standards, industry standards, and customary standards and customary practice or interpretation in matters involving the sale, delivery, installation, use, or service of similar or dissimilar Products or services shall not serve as references in interpreting the terms and conditions of the quotation or in this Agreement.

OBLIGATIONS. Customer’s obligations are independent of any other obligations Customer may have under any other agreement, contract, or account with Consultant. Customer will not exercise any right of offset in connection with the terms and conditions in the quotation or in this Agreement or in connection with any other agreement, contract, or account with Consultant.