Akvo General Terms and Conditions

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The Akvo General Terms and Conditions consist of the following components:

General Terms and Conditions

Definitions and interpretations

“Akvo” means Stichting Akvo (Akvo Foundation with its incorporated organisational entities) who’s principal place of business is at ‘s-Gravenhekje 1A, 1011 TG Amsterdam.

Akvo and the Partner is individually a “Party” or collectively “Parties”.

For the purpose of the Akvo General Terms and Conditions “the Agreement” shall include any individual  Project Agreement, Programme Agreement or General Framework Agreement concluded between Parties  defining the scope of authorized services and deliverables to be performed by Akvo (“Services”) under the Agreement.

For the purpose of the Agreement “Work Product” shall include, without limitation, all designs, discoveries,  creations, works, devices, masks, models, work in progress, inventions, products, computer programs  (both source and object code), developments, drawings, notes, documents, reports, business processes,  information, advice and material Akvo makes, conceives or develops, alone or in collaboration with others  including any summary, abstract, portion or derivation thereof.

These General Terms and Conditions form part of any Agreement between the Parties for the supply of goods and services by Akvo to the Partner.

1 – Services

1.1 The scope of authorized services and deliverables to be performed by Akvo (“Services”) will be described  in the Agreement explicitly referencing to the Akvo General Terms and Conditions, incorporated herein by  reference.

1.2 The Services described in the Agreement are expressly not the internet software-as-a-service (“SaaS”)  which Akvo provides, but include without limitation: Akvopedia, Akvo Flow, Akvo Really Simple Reporting  (“Akvo RSR”) and Akvo Caddisfly. The Services Terms and Conditions for Akvopedia, Akvo Flow, Akvo RSR and Akvo Caddisfly are all covered in separate services terms and conditions, including but not  limited to: Akvopedia Services and Support Terms and Conditions, Akvo Flow Services and Support  Terms and Conditions, Akvo RSR Services and Support Terms and Conditions and Akvo Caddisfly Services and Support Terms and Conditions.

2 – Billing and payments

2.1 Akvo’s budget for performing the Services is described in the Agreement, referred to as “Total Budget”.

2.2 Each Agreement will contain a budget section with one or more of the following fees and/or costs: separate online product and service fees, staff support fees, workshop, travel, software development and other (hardware) costs. The Partner shall reimburse Akvo for reasonable, necessary, and pre-approved out-out-town travel, meals, transportation and accommodation expenses (which shall not exceed actual costs or agreed per diem) incurred by Akvo in connection with the Services. Air transportation shall be economy class, unless other arrangements are pre-approved by the Partner in writing. Invoices shall enumerate expenses actually incurred. Copies of receipts of expenses can be presented on request by the Partner.

In addition to Fees, Reimbursable Expenses, any applicable taxes incurred in connection with the Services  other than taxes imposed on Akvo’s income (“Taxes”) will be billed to, and paid by, the Partner.

2.3 Akvo will submit invoices for Fees, Reimbursable Expenses and Taxes to Client in accordance with the invoicing schedule mentioned in the Agreement.

2.4 The Partner shall pay each undisputed invoice within thirty (30) days of the date of the invoice. Client shall  notify Akvo in writing of any dispute regarding all or part of an invoice within twenty (20) business days from receipt of the invoice. In the even that The Partner does not timely provide such notice, the entire invoice shall be deemed valid. The undisputed portion of an invoice shall be paid in accordance with the procedures described herein. In the event The Partner fails to pay in accordance with those procedures, Akvo may, at its option, terminate the Agreement pursuant to Article 8 or suspend performance until payment is made.

2.5 Interest of 1.5% per month on the outstanding balance of an invoice will be charged on past due amounts (except on any fees that are disputed by the Client in accordance with Section 2.4). Payments by the Partner will thereafter be applied first to accrued interest and then to the unpaid principal balance.

3 – Independent contractor

3.1 It is expressly agreed that Akvo shall perform the Services under the Agreement as an independent contractor with complete control and responsibility for its employees, subcontractors, suppliers and  agents, and sole responsibility for the means and methods of performance and without direction or control  by The Partner.

3.2 Nothing in the Agreement shall be constructed as creating a single enterprise, agency, joint venture or employer-employee relationship between the Parties hereto, and neither Party shall represent itself to any  third party to be an owner, officer, agent or employee of the other Party.

4 – Ownership of Work Product and Deliverables

4.1 Akvo is an organisation that expressly works with Work Products and makes Work Product public under  several different open source licenses for computer software and other open licenses, including but not limited to, the GNU Affero General Public License, the Creative Commons licenses and the Open Data Commons Open Database License version 1.0 or higher..

4.2 The Partner agrees to promptly disclose and describe to Akvo any and all Work Products that The Partner is sharing with Akvo, which should not be a joint Work Product published under an open source license or  a Creative Commons license. The Partner furthermore agrees to mark such Work Products clearly with “Not a Contribution”.

5 – Changes and Delays

5.1 If changes in the nature or extent of the Services requested by the Partner in writing or necessitated by  changing conditions of law or professional standards, Force Majeure Events, scheduled delays due to  lack of Client Cooperation (as defined below), or events beyond Akvo’s reasonable control, cause  an increase or decrease in the cost of, or the time required for, performance of any part of the Services in  the Agreement, the Parties, shall in good faith, negotiate an equitable adjustment in the price to be paid,  the delivery schedule, or both, and shall modify the affected Agreement accordingly.

5.2 For the purpose of the Akvo General Terms and Conditions, “Force Majeure Events” include strike,  lockout, earthquake, hurricane, flood, fire or other acts of nature, war, rebellion, civil disorders, acts of  terrorism, laws, regulations, acts of civil or military authorities (including the denial or cancellation of any export or other necessary license), unavailability of materials, carriers, or communication facilities, and  any other unforeseeable causes beyond the reasonable control of the Party whose performance is  affected (except for financial inability). Any Party so impacted in whole or in part by a Force Majeure Event  shall promptly give the other Party notice of the Force Majeure Event, including reasonably full particulars  about the event. Both Parties shall use all reasonable efforts to minimize the consequences of any Force Majeure Event.

5.3 The Parties acknowledge and agree that Akvo’s ability to perform the Services in a timely and cost-effective manner is conditional upon its receiving The Partner’s reasonable cooperation (“Cooperation”),  including but not limited to The Partner’s good faith and timely provision to Akvo of information and  resources reasonably requested by Akvo in connection with performing the Services under the  Agreement. The Partner’s failure to provide Cooperation may result in a change to the delivery schedule  and in such event, the Parties shall modify the affected Agreement accordingly.

5.4 Each Party will give prompt written notice to the other Party whenever a Party observes or becomes  aware of any development that affects the scope or timing of the other Party’s performance of its  obligations hereunder other than the partner’s payment obligation or the Services under the Agreement.

6 – Limitations of liability

6.1 Except with respect to any indemnification obligations set forth in Section 7 and the payment of interest under article 2.5 neither party will be liable to the other Party for any indirect, incidental, special, punitive or consequential damages (including, but not limited to, a loss of earnings, profits, products, data or goodwill, economic loss, delay, extended overheads, regulatory fines or penalties and all costs and expenses related to regulatory fines or penalties, and business interruption damages) in any action or for any claim or cause of action in contract, tort or any other legal claim or cause of action, whether or not a Party might have been advised of the possibility of such damages.

6.2 Except with respect to any indemnification obligations set forth in article 7 each Party’s total aggregate liability in any action or for any claim or cause of action in contract, tort or any other legal claim or cause of  action related to or arising out of the Agreement, or Akvo’s performance of the Services shall be limited to the fees paid or payable pursuant to the Agreement covering the Services or Work Product that gives rise  to liability.

7 – Indemnification

7.1 Each Party will indemnify and hold harmless the other Party, it’s officers and employees against all suits, claims, damages, liability and expenses (including reasonable legal expenses) by third Parties of any kind, arising out of the indemnifying Party’s acts or omissions in relation to its participation in the Agreement.

7.2 The Party seeking indemnification under this Section will: (a) notify the indemnifying party in writing within  thirty (30) days after the indemnified party receives notice of the claim; (b) give the indemnifying Party sole  control of the defence and all related settlement negotiations, provided that the indemnifying Party shall not settle any claim in hereunder without the indemnified Party’s written consent if such settlement  imposes any liability on the indemnified party, or contains or implies any wrongful action or inaction or any  admission of wrongdoing by or with respect to the indemnified Party; and (c) provide the indemnifying Party with reasonable assistance, at the indemnifying Party’s sole expense, in the defence of the claim.

8 – Termination of services

8.1 For the purpose of the Akvo General Terms and Conditions, “Default” shall mean a Party’s breach of a  material obligation under the Agreement . In the event of a Default by one Party, the other Party may terminate the Agreement by providing thirty (30) days written notice of termination to the other Party  describing the grounds for Default on which the termination is based, provided that the Party receiving the  termination notice shall have the right to cure such Default within thirty (30) days from receipt of the notice. If the Party receiving the termination notice does not cure the Default within thirty (30) days, the Agreement will be terminated. If the Party receiving the termination notice concludes that it cannot cure  the Default within thirty (30) days, it shall so inform the other Party promptly and the Agreement will be immediately terminated.

8.2 In the event that the Agreement expires or is terminated for any reason, (i) the Partner shall pay Akvo for the portion of the Services, if appropriate on a pro rata basis, performed and the Reimbursable Expenses and taxes incurred prior to the effective date of termination, (ii) Akvo shall return any unutilised working advances to the Partner (iii) Akvo shall deliver to the Partner any Deliverables and/or Work Product, completed or then in progress, in Akvo’s possession: provided, however, that all such deliverables and/or work product delivered to the Partner under this Section shall be provided to the Partner “as is” and any warranties, expressed or implied, including, without limitation, implied warranties of merchantability and fitness for a particular purpose are hereby disclaimed. The Partner assumes any and all risks associated with any use or dissemination of all or any portion of the deliverables and/or Work Product that is delivered upon termination of the Agreement in accordance with this Section. 

8.3 The Partner will give prompt written notice to Akvo if the Partner observes or becomes aware of any  perceived defect in Akvo’s performance of the Service under the Agreement and Akvo will respond to  such notices in accordance with its obligations under the Agreement.

9 – Warranties

9.1 Akvo warrants to The Partner that: (i) the Services shall be performed in a professional and workmanlike  manner and in accordance with the prevailing industry standards by Akvo’s personnel and contractors and reasonably  believed by Akvo to be competent and fully trained and qualified; (ii) Akvo is the sole and exclusive  creator of the Deliverables and Work Product provided to the Partner hereunder, other than contributions  of open source or openly licensed Work Products provided by the community surrounding the Work  Products which Akvo produce, and Akvo’s performance of its obligations under the Agreement will not  violate, infringe or misappropriate upon the intellectual property or proprietary rights of a third party; (iii) Akvo is under any pre-existing obligations inconsistent with its obligations under the Agreement; 

9.2 The forgoing warranties are in lieu of all other warranties, express or implied, including, but not limited to,  the implied warranties of merchantability and fitness for a particular purpose, which are expressly  disclaimed.

10 – Assignment and successors

10.1 Neither Party may not transfer or assign the Agreement or any benefit, obligation, duty, right or claim  arising out of or related to the Agreement without the prior written consent of the other Party.

10.2 The Agreement shall be binding upon and shall inure to the benefit of the Parties hereto, and their  authorised heirs, administrators and successors and assigns.

11 – No third party beneficiaries

11.1 With the exception of the Indemnified Persons, the covenants, conditions and terms of the Akvo General  Terms and Conditions shall be, to the extent of permitted by law, for the sole and exclusive benefit of the  Parties hereto and their respective permitted successors and assigns.

12 – Ruling law, mediation and arbitration

12.1 The Agreement shall be governed by and construed in accordance with the substantive and procedural laws of the state of The Netherlands, excluding its choice of law provisions and conflicts of laws principles. The parties specifically exclude from application to the Agreement that law known as the United Nations  Convention on the International Sale of Goods.

12.2 In the event of a conflict or inconsistency between an Agreement with a Partner and these Terms and Conditions, the Agreement with the Partner shall prevail. The Akvo General Terms and Conditions with respect to the subject matter hereof, supersedes the terms of any discussions or any other communications, except for services terms and conditions covering SaaS as stated in section 1.2 or a separate confidentiality article in the Agreement covering confidentiality as stated in section 14. If any provision of the Akvo General Terms and Conditions is held invalid, that provision shall be deemed amended to achieve as nearly as possible the same economic effect as the original provision and the remainder of the Akvo General Terms and Conditions shall continue in full force and effect. No term or provision hereof will be considered waived by either Party, and no breach excused, unless such waiver or consent is in writing signed by such Party.  No consent by a Party to, or waiver of, a breach, whether express or implied, will constitute consent to, waiver of, or excuse of any other, different or subsequent breach.

12.3 The parties shall seek amicably to settle any controversy or claim arising out of or relating to the  Agreement, or the breach thereof. In the event of any controversy or claim arising out of or relating to the Agreement, or a breach thereof, remains unresolved thirty (30) days after either party gives written notice  of the existence of such dispute, the parties hereto agree first to try and settle the dispute by mediation,  administered by the Netherlands Arbitration Institute (NAI) under the NAI Mediation Rules. If settlement is  not reached within sixty (60) days after service of a written demand for mediation, any unresolved  controversy or claim arising out of or relating to the Agreement shall be settled by arbitration in accordance with the NAI Arbitration Rules of the Netherlands Arbitration Institute. The seat of the  arbitration shall be The Hague, The Netherlands.

12.4 One (1) arbitrator shall settle the arbitration. The arbitrator shall be appointed by the Netherlands Arbitration Institute within twenty-one (21) days of receipt of the request for arbitration. The arbitrator is  authorized to award to the prevailing party, if any, as determined by the arbitrator its costs and expenses,  including attorneys’ fees. The arbitrator may not award punitive, exemplary, or consequential damages,  nor may the arbitrator apply any multiplier to any award of actual damages, except as may be required by  statute. The arbitrator shall have the discretion to hear and determine at any stage of the arbitration any  issue asserted by any party to be dispositive of any claim or counterclaim, in whole or part, in accordance  with such procedure as the arbitrator may deem appropriate, and the arbitrator may render an award on  such issue.

13 – Confidentiality

13.1 Neither Party shall offer confidential information to the other Party without clearly marking the information “Confidential” and “Not a Contribution”. 

13.2 Each Party shall keep in full confidence (i) any information offered to it by the other Party with the mark “Confidential” and (II) information about the organisation and the activities of the other Party to which they have become privy other than via publicly accessible media, and warrants to the other Party the confidentiality vis-à-vis third parties of any business information (such as information pertaining to business resources, business management, and other data). The Parties undertake to impose this obligation on third parties engaged by the Parties in performance of the agreement.  The confidentiality undertaking in this Article does not apply if disclosure of information is required by applicable law, a judgement of a competent court of justice or arbitral tribunal or by any order, decree or decision of any institution having legal authority over the Party involved.

13.3 Akvo is at all times free to engage third parties, consultants, sub-contractors, for the execution and performance of the Services.

14 – Miscellaneous

14.1 The Parties will mutually refrain from statements and/or acts that can injure the reputation of the other.

Last updated 26 January 2016