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Terms & Conditions Winkle Ltd.
1.1 In these terms & conditions, the following capitalized terms shall have the meaning as set out below:
- Agreement: any statement of work or other agreement which Winkle enters into with a Client regarding the provision of Services;
- Client: the natural person or company that has entered into an Agreement with Winkle;
- IP Rights: all intellectual property and ancillary rights, such as copyrights, trademark rights, patent rights, design rights, trade name rights, database rights and related rights, as well as know how rights and performances on a par with patentable inventions;
- Party/Parties: Winkle and/or Client;
- Service: all service provision and results thereof of whichever nature and under whichever name that Winkle performs or must perform under terms of an Agreement with the Client;
- Terms & Conditions: these terms & conditions of Winkle;
- Winkle: Winkle Ltd., having an office at 123 North Union Ave., Suite 107, Cranford, NJ 07016.
2.1 These Terms & Conditions are applicable to all legal acts of Winkle, all legal relationships between Parties and all offers and Agreements based whereon Winkle provides Services to the Client.
2.2 Departures from and additions to these Terms & Conditions are only valid if agreed by the Parties in writing.
2.3 The applicability of purchasing or other conditions of the Client is expressly rejected.
2.4 If any provision of these Terms & Conditions is void or voidable or is or becomes entirely or partly invalid for any other reason, the other provisions of these Terms & Conditions will remain in full force and effect. Winkle will replace the invalid provision with a provision that is valid and of which the legal consequences, having regard to the content and purpose of these Terms & Conditions, corresponds as far as possible with those of the invalid provision.
2.5 Winkle reserves its right to modify the provisions of these Terms & Conditions. Winkle shall inform the Client of any modification and these new Terms & Conditions shall enter into effect one (1) month after the Client has been informed of the modification. If the Client does not agree with any modification of these Terms & Conditions, it is entitled to terminate the Agreement for its convenience as of the moment the new Terms & Conditions become valid.
3. Offers and Agreements
3.1 All offers and quotations of Winkle remain valid for a period of 30 (thirty) days, unless otherwise specified in the specific offer or quotation.
3.2 The Client warrants the accuracy and completeness of the information provided to Winkle Terms & Conditions Winkle Ltd. Page 2/6 by or on his behalf and upon which Winkle bases its offer. If these particulars prove to be inaccurate or incomplete, Winkle will have the right to amend the offer or to terminate the Agreement.
3.3 An Agreement is constituted when it is signed by both Parties or when Winkle, with consent of the Client, has started with the execution of the Services agreed upon by the Parties. In the latter case, the unsigned agreement shall form the Agreement between Parties.
4. Provision of Services
4.1 Winkle will make every effort to provide to the Client the Services laid down in the Agreement. All Services will be carried out on the basis of a best efforts obligation.
4.2 Winkle is entitled to postpone the execution of the Services until the moment the Client has created and communicated a PO-number (Purchase Order number), if applicable.
4.3 If the Service is rendered in phases, Winkle will be entitled to postpone the commencement of work of any phase until the Client has approved the results of the preceding phase in writing.
4.4 Amendments or additions to agreed Services at the request of the Client may only take place with the written consent of Winkle. Winkle is not obliged to implement an amendment or addition and may require a separate written agreement be concluded in respect thereof.
4.5 If there are amendments or additions which result in a change to the scope of the agreed Services, for example through additional work, the extra activities arising therefrom will be paid for in accordance with the rates of Winkle that are applicable at the time of the performance of the work. In so far as a fixed price has been agreed for the Services, Winkle will on request inform the Client in writing about the financial consequences of the extra activities as referred to in this article.
4.6 The turnaround time of a contract is dependent on various factors and circumstances, such as the quality of the data and information provided by the Client and the cooperation of the Client and relevant third parties. Stated delivery dates are therefore not regarded as strict deadlines, unless the Parties have expressly agreed otherwise in writing.
4.7 The Client accepts that additions or amendments to the Agreement may influence the agreed or expected time of completion of the Services and the reciprocal responsibilities of Winkle and the Client. The fact that (the demand for) additional work arises during the implementation of the Agreement will not entitle the Client to cancel or terminate the Agreement.
5.1 The Client bears the risk for the selection, the use and the application of the materials, software, websites, databases and other products as well as the Services within his organization and is responsible for carrying out safety procedures and proper systems management.
5.2 The Client indemnifies Winkle against claims by third parties, including employees of Winkle, who may incur property damage or personal injury while at the Client location resulting from the actions or negligence of the Client or unsafe conditions within its organization. If use is made during the implementation of the Agreement of computer, data or telecommunication facilities, including Internet, the Client will be responsible for the correct selection of the means required therefor and the timely and full availability thereof, except for facilities resorting under the direct use and control of Winkle. Winkle will never be liable for damages or costs due to transmission errors, breakdowns or non-availability of
Terms & Conditions Winkle Ltd. Page 3/6 such facilities unless the Client proves that such damages or costs are attributable to intent or willful recklessness on the part of the management of Winkle.
6. Obligations of the Client
6.1 The Client must fully, properly and promptly make available to Winkle (upon demand by Winkle) all data, documents, equipment, software, materials or employees and give all cooperation deemed necessary or desirable for the implementation of the Agreement, before as well as during the Agreement. The Client must furthermore take all measures necessary for the implementation of the Agreement and make available the facilities necessary therefor.
6.2 The Client must accurately inform Winkle about the work to be carried out and the circumstances under which this must take place.
6.3 For continuity of the work the Client will appoint a contact person or contact persons who will act as such for the duration of the work by Winkle. The contact persons of the Client will have the necessary
experience, specific subject knowledge and insight into the desired objectives of the Client.
6.4 If the Client does not promptly or fully comply with the obligations stated in this article, Winkle
will be entitled to suspend the implementation of the Agreement (in full or in part) and/or charge the Client any additional costs according to the current standard rates of Winkle. This will be without prejudice to the right of Winkle to exercise any other legal and/or agreed right.
7. Price and payment
7.1 Unless expressly stated otherwise cost estimates and budgets will only serve for purposes of information and no rights or expectations can be derived therefrom. Winkle will only be obliged to inform the Client when a cost estimate or budget has been exceeded if the Parties have so agreed.
7.2 Winkle will be entitled to adjust the applicable prices and rates upon written notice of at least 30 (thirty) days. Winkle will in any event have such right to adjust prices when the price increase is the result of increase of wages, transport costs and/or purchase prices.
7.3 Unless agreed otherwise between Parties, Winkle shall invoice 50% of the total amount of the Agreement prior to the provision of its Services and Winkle is entitled to suspend the commencement of the provision of Services until the moment of reception of this payment. Winkle shall invoice the remaining 50% after the provision of its Services.
7.4 Payments to Winkle must be made within 30 days of the invoice date, and without any entitlement to discount and/or set-off, unless otherwise agreed in writing or stated on the invoice.
7.5 If the Client fails to make payment (in full) during this term, the Client shall be in default
regarding its payment obligations and will be liable for interest equal to the statutory commercial interest rate.
7.6 After the Client is in default regarding its payment obligations, Winkle may hand over the claim for collection. In that event all costs incurred by Winkle in connection with overdue payments, such as legal costs and extra-judicial and judicial costs, including the costs of legal assistance, bailiffs and collection agencies, will be payable by the Client. The extra-judicial costs are fixed at no less than 10% of the invoiced amount.
7.7 Complaints in relation to invoices and/or the Services will not suspend the payment obligations of the Client regarding undisputed invoices. Terms & Conditions Winkle Ltd. Page 4/6.
8.1 All IP Rights vested in any Party before conclusion of the Agreement shall not be transferred to the other Party, unless specifically agreed otherwise in writing.
8.2 Unless the Parties have otherwise expressly agreed in writing, the IP Rights regarding all test results, advices, reports, and other results of the Services specifically developed/rendered by Winkle or/to Client pursuant to the Agreement shall be vested in the Client.
8.3 After assignment of the IP Rights as laid down in the previous paragraph, the Client grants Winkle a royaltyfree, worldwide, sublicensable and transferrable right to use the results of the Services for promotional and internal business purposes only.
8.4 The assignment of IP Rights as laid down in this article expressly does not apply to materials that are not the result of the Services specifically provided for the Client, such as – among other materials –
Winkle’s models, look and feel, templates, questionnaires, surveys, software, platforms, (digital) tools
and other Winkle materials used for the generic provision of Services. The Client will not be permitted to remove, change, modify or reverse engineer any specification regarding the confidential character or the relevant IP Rights in the software, files, equipment or materials.
8.5 Winkle may introduce technical facilities (or cause such facilities to be introduced) for the protection of the software, files, equipment or materials regarding an agreed restriction to the content or the duration of the right of use. The Client will not be permitted to remove or bypass any such a technical facility (or cause it to be removed or bypassed).
8.6 The Client will not be permitted to remove, change, modify or reverse engineer (or cause such to be made), to use or to allow third parties to use the materials protected by Winkle’s IP Rights.
8.7 If and to the extent that Winkle makes use of materials protected by the Client’s IP Rights during the performance of the Services, the Client guarantees that it is authorized to grant Winkle access to and the use of such materials for the purpose of the execution of the Agreement. The Client indemnifies Winkle against all damage and costs which Winkle suffers or incurs as a result of a claim of a third party in respect of such use.
9.1 The liability of Winkle due to an attributable breach of its obligations and/or on account of an unlawful act will be limited to compensation for direct damage suffered by the Client. However, under no circumstances will the total liability of Winkle for direct damage, of whatever nature, exceed the invoice value of the Agreement. Under no circumstance and in no event will Winkle be liable consequential damages, incidental damages, punitive damages, loss and/or damage of data, or loss of profits and lost sales.
9.2 The liability of Winkle due to attributable breach of an Agreement will in all instances arise only if the Client immediately gives proper written notice of default, whereby a reasonable period within which the attributable breach may be remedied is stipulated, and Winkle after this period still fails in the performance of its obligations, except in the case of lasting attributable failure. The notice of default must contain a description of the breach that is as complete and detailed as possible, to enable Winkle to respond adequately.
9.3 A condition for the creation of a right to damages will always be that the Client must report the damage to Winkle in writing as soon as possible after it arises. Notwithstanding any Terms & Conditions Winkle Ltd. Page 5/6 statute or law to the contrary, anyclaim for damages against Winklemust be filed within 12 months from the inception or accrual of the claim; otherwise, any such claim is expressly
10. Indemnities and warranties
10.1 The Client is itself responsible for the use of the Services of Winkle and the results of these Services. Winkle warrants that it shall render its Services in accordance with article 4.1 but does not guarantee the correctness, integrity, reliability, fitness for a specific purpose or completeness of any result or consequence of the Services.
10.2 Unless otherwise agreed, Winkle will not be responsible for the purchase and/or proper operation of the infrastructure of the Client or that of third parties. Winkle will not be liable for damage or costs due to transmission errors, failures or non-availability of computer, data or telecommunication facilities, including Internet.
10.3 The Client guarantees the correctness, completeness and actuality of all information, materials, software, procedures and instructions which the Client provides to Winkle for the implementation of the Agreement, both before entering into the Agreement and during the execution thereof.
10.4 The Client guarantees that there are no rights of third parties which preclude making information, equipment, software, data or other materials available to Winkle for the purpose of use, adaptation, installation or incorporation by Winkle. The Client indemnifies Winkle against all damage and costs which Winkle may suffer or incur due to a claim by a third party based on the allegation that such making available, use, adaptation, installation or incorporation infringes any right of that third party.
10.5 The Client indemnifies Winkle against all damage and costs, including – but not limited to damage resulting from (alleged) infringements of IP Rights, claims by third parties, collection costs, the statutory commercial interest, loss of profits, penalties incurred and legal fees, which Winkle incurs or which result from (i) attributable breach of the Agreement by the Client, (ii) any action of the Client in the performance of this Agreement or (iii) an unlawful act.
11. Duration and termination
11.1 Neither Party is entitled to terminate an Agreement prematurely unless expressly agreed otherwise and at all times with due compensation for the Services rendered by Winkle up to the moment of termination and compensation of damages incurred by Winkle due to the termination, including loss of profits.
11.2 Parties are entitled to suspend their obligations or terminate in the event the (correct) fulfillment of obligations is impossible due to force majeure, if this force majeure has lasted for longer than thirty days, without incurring any liability for damages towards the other Party.
11.3 Termination of the Agreement on the ground of an attributable breach will only be permitted following a written notice of default that is as detailed as possible whereby a reasonable period is stipulated within which the breach may be remedied, unless otherwise stipulated in these Terms & Conditions or otherwise prescribed by law.
11.4 In the event of termination of the Agreement, for whatever reason, there will be no reversal of that which Winkle has already delivered and/or carried out nor the related obligation to make payment, unless the Client proves that Winkle is in default in respect of the material part of such performance.
Amounts for services performed and/or work provided in Terms & Conditions Winkle Ltd. Page 6/6
accordance with the Agreement will remain payable in full subject to the provisions of the preceding sentence and will become due and payable at the time of the termination.
12. Confidentiality and acquisition of staff
12.1 The Client will ensure that all information received from Winkle – including data, designs, documentation and software – which the Client knows or should reasonably know to be of a confidential nature, remains confidential. The Client will only use this information for the purpose for which it was provided and will not show it to third parties, make it public or make it otherwise available. The Client will take all necessary measures to protect the confidential character of the information in the same manner and to the same degree as the confidential information of the Client itself.
12.2 The Client will not be entitled during the currency of the Agreement nor for a period of one year after the end thereof to employ an employee of Winkle who is (or was) involved in the implementation of the Agreement or to otherwise use his services, directly or indirectly, unless Winkle has expressly consented thereto in writing.
13.1 The Client is not entitled to transfer rights and/or obligations arising from the Agreements to a third party.
13.2 Winkle is entitled to transfer its claims to payment of compensation to a third party. Winkle is furthermore entitled, under its own responsibility, to cause the Agreement to be carried out in full or in part by third parties or at any rate involve third parties in the implementation of the Agreement. The Agreements between Winkle and the Client will be governed by, construed and enforced in accordance with the laws of the State of New The Jersey, applicable to contracts executed, and to be wholly performed therein. The parties further agree that any action or proceeding arising out of or in connection with the Agreement shall be venued in the federal or state court of appropriate subject matter jurisdiction in New Jersey and consent to the jurisdiction of each of the said courts.