These Terms & Conditions are effective as of the later date of execution of the applicable statement of work/contract making reference to this agreement. Any and all references to “customer” shall be deemed to mean the customer set forth in an applicable Statement of Work or Contract. This agreement sets forth the general terms and conditions under which customer may engage Maloo Business Consulting to provide certain advisory, development, educational, operational and consulting services (“services”) on a project basis pursuant to a Statement of Work or other type of Contract that will be entered into between Maloo Business Consulting and customer (“sow”) for each engagement.
1 Governing Law
This Agreement shall be governed by and interpreted in accordance with the laws of The Netherlands and shall be subject to the exclusive jurisdiction of the Dutch courts.
2 Limited Liability
In no event shall Maloo Business Consulting or its suppliers be liable for any accidental, consequential, incidental or indirect damages of any kind (including without limitation, damages for loss of business profits, business interruption, loss of business information, or other pecuniary loss) arising out of the use or of the inability to use software or other products covered by this agreement. In no event shall Maloo Business Consulting’s liability for any claims whether in contract, tort or other theory of liability exceed the purchase price of the subject products or services, unless such limitation of liability is otherwise prohibited by law.
3 Force Majeure
Neither party shall be liable or deemed in default for any delay in performance under this Agreement resulting directly or indirectly from acts of God, war, insurrection, national emergency, fires, strikes, labor disputes or any other cause beyond the reasonable control of such party.
4 Copyright
The intellectual property rights, copyright and company trade secrets of Maloo Business Consulting vested in all software products, upgrades, multi-media software, hard-copy or electronic manuals and documentation are vested in Maloo Business Consulting, which reserves the right to use the software or material, or any part of it in other applications and for its own use. The software or material or any part of it shall not be used, reproduced, or disclosed to any person except in accordance with either an authorisation or a license, both in writing, first obtained from Maloo Business Consulting. No part of any software, or publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical photocopying, recording or otherwise, without the prior written permission of Maloo Business Consulting.
5 Confidentiality
Customer agrees to cooperate fully with Maloo Business Consulting in the performance of Maloo Business Consulting’s responsibilities hereunder and under any Statement of Work, and it shall make available to Maloo Business Consulting such information, documents, and data in its possession which Maloo Business Consulting reasonably deems necessary to perform its obligations. All information provided to Maloo Business Consulting which is proprietary or confidential in nature and so marked by Customer shall be treated by Maloo Business Consulting as confidential and shall not, except to the extent necessary in its performance hereunder, be disclosed to parties outside Maloo Business Consulting or Customer. Similarly, Customer shall treat as confidential all information that is proprietary or confidential in nature to Maloo Business Consulting and so marked by Maloo Business Consulting.
6 Services
Maloo Business Consulting shall use commercially reasonable efforts to provide the services described in each SOW, either directly or through a subcontractor. Client shall provide Maloo Business Consulting in a timely manner, at no charge, (i) reasonable assistance and cooperation, and (ii) all applicable software, equipment, documentation, content and other materials necessary for the purpose of enabling Maloo Business Consulting to perform such services. Maloo Business Consulting is not responsible for the provision of any direct support or maintenance, or new releases, enhancements or updates, of the deliverables in this statement of work.
7 Acceptance
Acceptance of Services shall occur upon demonstration that the applicable products are functioning in or the agreed deliverables have been completed in accordance with the Statement of Work. Minor omissions or substitutions in availability of certain features or functionality, or failures which do not affect the functioning of the entire system in more than a minor way are not grounds for rejection of services. Notwithstanding the foregoing, services will be deemed to have been accepted if Customer has not advised Maloo Business Consulting in writing of non-conformity (specifically identifying the particular scope and nature of nonconformity) with the Statement of Work within fifteen (15) days of completion of the services.
8 Deadlines
Maloo Business Consulting will endeavour to meet agreed deadlines, however, because of the nature of software development work these are not guaranteed and are estimates only.
9 Warranty
A 90 day warranty begins upon delivery of any fixed price job. No warranty applies to work done on an hourly basis. This includes bug fixing. Maloo Business Consulting disclaims all other warranties, either express or implied, including, but not limited to implied warranties or merchantability and fitness for a particular purpose, with regard to the software, the accompanying written materials, and any accompanying hardware.
10 Time & Materials Work (Hourly Rate)
Maloo Business Consulting may agree to undertake work on an hourly rate basis (“time and materials”) and may provide an estimated time to complete this work. Such estimates are not binding and all hours designated as performed will be charged at the agreed rate. If during the course of such work Maloo Business Consulting determines that the job will require substantially more hours than estimated Maloo Business Consulting may advise the customer who may then choose not to complete the task. In this case, all hours spent will be charged to the customer. A request for an estimate on a particular piece of work, or a request to investigate a particular issue, will be charged to the customer. The minimum time chargeable for onsite work is 4 (four) hours per person per visit, plus travel in accordance with section 17 Expenses below. The minimum time chargeable for off-site work is 2 (two) hours per person per request.
11 Pre-Paid Work
Maloo Business Consulting may offer by negotiation a discounted rate to clients pre-paying time in blocks of 40 hours on the project. Pre-paid rates become effective upon the day of payment. Rates revert to standard if pre-payment is not maintained.
12 Fixed Price Work
Maloo Business Consulting may agree to perform certain work or provide a software product for a fixed price in accordance with an agreed specification. In this case, the specification is binding and additional or previously unspecified work will be to the customer’s account. A 25 (twenty five) percent payment is required prior to commencement, and the balance payable upon completion of work or at monthly or other intervals as agreed in the applicable Statement of Work.
13 Support
Software will be supported either on a Time and Materials (hourly) basis, or under a Pre-paid Maintenance Support Agreement.
14 Development Work Credit
The Client acknowledges that Maloo Business Consulting may claim credit in its own promotional material for the development of a project; and to develop and publish a case study on the work performed. The Client may request that details identifying the Client not be published.
15 Training & Documentation
Training and documentation, if required, are chargeable parts of a project. If documentation has not been specifically requested, estimated or quoted, it will not be supplied. All custom documentation, including additions, deletions, and amendments is to the customer’s account.
16 Goods & Services Tax (GST/VAT/BTW/MWSt)
All prices quoted whether on an hourly basis or a fixed price basis are exclusive of GST/VAT/BTW/MWSt unless otherwise stated.
17 Expenses
Any expenses are not included in the daily rate and will be billed as incurred. Maloo Business Consulting does not charge any expenses for customers where their office is located within the Netherlands. For all other locations (international) the Customer will be billed for actual expenses which will be fair and responsibly aligned with standard business practices. Billing of expenses will be associated with the period of work that is billed per invoice.
18 Invoice payment
Maloo Business Consulting will send its invoices at the end of the agreed-on work period for assignments shorter than 4 weeks. Maloo Business Consulting will send its invoices in a bi-weekly period for assignments longer than 4 weeks.
An invoice due date is standard 30 days after the invoice creation date, unless a different period is stated or agreed on.
A reminder will be send out around the due date of each invoice if no payment is yet received. This will be repeated every forthnight untill payment is complete or other conditions are becoming active.
If The Customer is not paying the invoice within a period of 90 days passed the invoice due date, Maloo Business Consulting will add an additional charge to the outstanding amount at a rate of 5% over the total outstanding amount for the invoice per the amount of outstanding months. For example and outstanding invoice for $5000 will be charged $250 * 3 when not paid before the 90 days past due date.
If The Customer is not paying the invoice within a period of 120 days passed the invoice due date, Maloo Business Consulting will add not only the previous listed charge but will also contact a debt collector agency to retrieve all outstanding invoices for that Customer and will include all costs made to retrieve the outstanding amount.