Agreements
Section 1 – Scope
(1) These terms and conditions (hereinafter: “Terms”) shall apply to all business relationships between a customer and Axxis Consulting (hereinafter: “Axxis”) with respect to the products traded and services rendered by it.
(2) Any and all orders and agreements shall only be valid and binding if they are duly countersigned by Axxis in written form and shall only impose an obligation in the extent set forth in den written contractual agreement (service contract).
(3) Amendments and supplements to these Terms as well as contradictory / supplementary terms – in particular terms and conditions of the customer – shall not be accepted by Axxis, unless Axxis issues an explicit confirmation in writing.
(4) With respect to licenses of third parties (e.g. SAP) sold by Axxis the terms and conditions of the producer shall apply.
(5) Regulations and provisions of an individual written agreement (including its schedules) between Axxis and the customer shall prevail in case of contradictions and uncertainties.
Section 2 – Acceptance
(1) Axxis shall inform the customer in writing, if and when a service is ready for acceptance.
(2) The customer shall examine the deliverables within fourteen (14) days upon provision of the deliverables and receipt of the notice on the readiness for acceptance (“Acceptance Period”). Upon expiry of the Acceptance Period the customer shall promptly notify Axxis in writing, whether he accepts the deliverables and / or services provided or not. The customer shall not be entitled to refuse acceptance for immaterial defects.
(3) Axxis shall cooperate in the acceptance examination to an adequate extent.
(4) Defects of the service shall be recorded in the acceptance protocol. Said defects shall be described in detail by the customer. The defect rights are deemed reserved with respect to all defects mentioned in the acceptance protocol. Axxis shall remedy defects within a reasonable period. Upon successful remedy Axxis shall again make the deliverables available for acceptance; the preceding proceeding shall apply mutatis mutandis.
(5) If the customer does not issue a statement on the acceptance of the deliverables within 14 days upon expiry of the Acceptance Period without giving reasons, the deliverables and / or the services shall be deemed accepted by the customer. A deliverable and / or service shall also be deemed accepted, if the customer uses the service in productive operation for a period exceeding ten (10) days.
Section 3 – Prices and Payment Conditions
(1) All listed prices are net prices and shall be understood exclusive of statutory value-added tax. Axxis shall be bound by to the prices for a period of four weeks, unless otherwise agreed in the contract.
(2) The customer shall only be entitled to settle or withhold due sums if the claims have been admitted by Axxis in writing or have finally been confirmed by a court.
(3) All sums due from either of the Parties to the other Party which are not paid on the relevant due date (without prejudice to any other right or remedy of any Party) shall bear interest from day to day at the annual rate of 10% per annum.
(4) In case of travel outside the agreed upon main project location, travel costs and time will be charged. Travel costs shall be calculated – at the discretion of Axxis – either in an amount corresponding to the official kilometre allowance or by furnishing the actual costs incurred.
(5) Project-related expenses and charges shall be charged separately in accordance with the offer accepted by the customer.
(6) In case of programming work 50% will be invoiced as of order placement and 50% as of delivery / acceptance of the programme, if not regulated separately in the corresponding agreement.
(7) Support services (e.g. via telephone) shall be invoiced monthly ex post. Other deliveries and services shall be invoiced upon provision thereof.
(8) Invoices shall be due for payment without deduction upon 14 days of the date of the invoice, if not regulated separately in the corresponding agreement. In case of default of payment, Axxis reserves the right to assign, sell or transfer for collection the claims vis-à-vis the customer to factoring companies. The costs associated therewith, such as reminder and collection costs, shall be borne by the customer.
(9) If payment conditions are not met, all claims shall become due. In such case, Axxis shall be entitled to execute outstanding deliveries and services only against prepayment and to withdraw from the contract upon setting a deadline, as well as to claim for damages.
Section 4 – Customer’s Obligations
(1) The Customer cooperates with respect to the order completion to the extent necessary and free of charge by e.g. providing employees to the extent foreseeably necessary, working space, hardware and software, data and telecommunication facilities.
(2) The Customer will provide all required and relevant cooperation specifically for those project phases that require their active participation, such as user training, user acceptance testing and providing relevant data for migration (e.g. master data and open balances) as per the mutually agreed upon project schedule.
(3) The Customer will pay all undisputed invoices timely and within the agreed upon payment terms.
(4) The Customer shall adhere to the Mutual Respect and Zero Tolerance for Abuse Clause as stated within this General Terms and Conditions.
(5) If the Customer does not comply with his cooperation or other obligations as stated above, Axxis shall either be released from rendering any of its services until fulfilment of the necessary requirements by the customer or Axxis shall be entitled to invoice the additional costs incurred due to the deficient fulfilment of the necessary requirements.
(6) In the event that Axxis stops providing services (including but not limited to hosting, helpdesk, support, etc) due to Customer’s failure to comply with their obligations, the Customer explicitly agrees to waive their rights to hold Axxis accountable for any liabilities, damages, losses or injuries the customer might experience as a result, and instead will hold Axxis harmless for such damages or losses.
(7) If the project is delayed due to decisions and / or actions by the customer, by customer appointed 3rd parties, and/or force majeure, and without any fault of Axxis (e.g. non-availability of Key Users, delay of decisions and / or sign-off by more than 2 weeks, temporary company closure, request for temporary project stop, etc), then the customer is liable for payment of work done by Axxis prior to such delay. Both parties agree that in the event the project is delayed by more than 90 days because of such reasons, the amount due for the subsequent milestone will be due immediately, and Axxis shall have the right to terminate this project for cause in accordance to Section 15 – Termination.
Section 5 – Warranties
(1) Insofar as the condition of the services is not explicitly agreed, Axxis shall render the services qualitatively and quantitatively in a manner that they are suitable for the use anticipated in the contract, otherwise for normal use and shall be in a condition which is common in services of the same type and which can be expected by the customer by the type of service.
(2) Axxis warrants that the services are free from rights of third parties, which limit or exclude the use by the customer in accordance with the content and purpose of the contract.
(3) If a defect exists, the customer shall have the statutory rights, insofar as nothing to the contrary is set forth below.
(4) In case of a defect of the services Axxis shall primarily rectify the service by – at the discretion of Axxis – rendering a new and non-deficient service or remedying the defect. A remedy of the defect may also be effectuated by Axxis pointing out a reasonable possibility to the customer to avoid the effects of the defect.
(5) The agreed limitation of liability shall apply to claims for damages or reimbursement of expenses.
(6) If claims are brought against a party in connection with the services on grounds of the actual or alleged violation of rights of third parties, the parties shall inform each other promptly thereof. The parties shall coordinate the defence of such claims in close alignment, with Axxis taking the lead. Axxis shall hold the principle harmless from all claims, costs (including reasonable legal costs), damages, expenses and other disadvantages which arise in connection with the violation of rights of third parties. This shall not apply if the customer amends the service in breach of the contract and the violation of rights of third parties would not have occurred, if the service had not been amended in breach of the contract.
(7) In case of a legal defect Axxis shall – at its discretion – either (i) provide the customer with the right to use the services as agreed or (ii) to substitute the services or change them in such a manner that the alleged violation is cancelled (however, the contractually agreed use of the customer shall thereby not be unreasonably interfered with) or (iii) to terminate the contract and reimburse the customer for the prepaid remuneration for the period following the termination date.
(8) The customer shall notify Axxis of all defects promptly and in writing and shall furnish a detailed description of the defect or, if this is not feasible, the symptoms of the problem as well as any information which may be useful for remedying the defect and which are available to the customer.
Section 6 – Liability
(1) All reciprocal obligations and liabilities hereunder are exhaustively defined in this Agreement, and the express obligations and warranties made by the parties in this Agreement are in lieu of and to the exclusion of any other warranty, condition, term, undertaking or representation of any kind, express or implied, statutory or otherwise relating to anything supplied or services provided under or in connection with this Agreement including (without limitation) as to the condition, quality, performance, merchantability or fitness for purpose of any deliverables or any part of them.
(2) Notwithstanding anything to the contrary in this Agreement (including, for the avoidance of doubt, any Work Order):-
(3) A shortcoming in the fulfilment of any agreement cannot be enforced against Axxis in the event of force majeure.
In the context of these General Terms and Conditions, force majeure should in any event, but not exclusively, be understood to mean: circumstances or events beyond the control and will of Axxis – regardless of whether these circumstances or events occurred at the time of signing any agreement or were foreseeable – as a result of which Axxis cannot reasonably be held to fulfill its obligations under the Agreement. These circumstances or events include, but are not limited to: war, fire, natural disasters, labour disputes, power outages, strikes, epidemics, government regulations and / or similar rules, embargoes, non-compliance (due to bankruptcy or otherwise) by suppliers, subcontractors or any other third party / parties engaged by Axxis for the implementation of the agreement, seizures, the unavailability of (the systems of) financial institutions and / or telecommunication services and (attempts at) the unauthorized intrusion into and / or the unauthorized use of the systems, networks and databases that belong to Axxis and / or on which Axxis depends, as well as all work performed by them unknowingly by others than Axxis or third parties engaged by it.
(4) Every claim against Axxis expires after the expiration of a period of three (3) months after the incident-causing incident has become known to the user, subject to the written acknowledgment of the claim by Axxis.
(5) The customer acknowledges and agrees that the allocation of risk contained in this Clause 6 is reflected in the Contract Cost and is also a recognition of the fact that any software developed or implemented by Axxis under this Agreement cannot be tested in every possible combination and it is not within Axxis’ control how and for what purpose such software may ultimately be used by the customer.
Section 7 – Confidentiality
(1) The parties shall be obliged to keep confidential all confidential information and business secrets of the other party which have become known in connection with the fulfilment of the contract and are explicitly marked as confidential or protected or which must be considered confidential or protected on basis of the circumstances of their announcement or their nature (“Confidential Information”). Confidential Information of Axxis (or licensors such as SAP) shall in particular be:
(2) The parties shall be obliged to keep confidential all Confidential Information of the other party; the recipient shall be entitled to disclose Confidential Information to its employees and third parties insofar as is necessary for the use of the rights and the fulfilment of the obligations under the contract. The parties further ensure that all employees and third parties, to which Confidential Information has been disclosed for the purpose of fulfilling the contract, enter into the same or similar confidentiality obligations.
(3) Both parties diligently store the Confidential Information of the respective other party and the customer.
(4) The above-mentioned obligations shall not apply to information for which the receiving party (“Recipient”) is able to prove that the information (a) has been publicly available as of the time of disclosure vis-à-vis the Recipient (without an action or omission by the Recipient or one of its employees or agents which would constitute a breach of contract), (b) has been in the possession of the Recipient or known to him prior to receipt by the disclosing party, (c) has been disclosed by an alleged entitled third party to the Recipient or (d) has been developed by the Recipient without reference to the disclosing party, or e) is required to be disclosed pursuant to any statute, law, rule or regulation of any governmental authority or pursuant to any order of court of competent jurisidiction.
(5) Furthermore, the customer shall be obliged to keep any Confidential Information related to the object of the contract, in particular, with respect to the documentation of the development as well as the content of the agreement entered into with the customer, confidential from third parties. Employees and so forth, who have access to the objects of the contract, shall be instructed in writing about the copyright and the confidentiality obligation vis-à-vis Axxis and be obliged to adhere thereto. The customer diligently stores the objects of the contract to prevent misuse.
Section 8 – Intellectual Property Rights
(1) Upon full payment of the agreed upon remuneration Axxis will grant the customer the simple, irrevocable, in terms of territory, period of time and content unrestricted right to use the work results (also of the respective parts thereof) with respect to all types of use known as of the time of the conclusion of the contract. The services shall also include all ideas, inventions, algorithms, procedures, specifications, hand books, documentations, tests as well as other documents, material and data collections and so forth, developed prior or during the performance of the contract. If a service does not yet exist in complete form, also the respective parts shall be regarded as service in the meaning of section 8.However, it is expressly clarified that the customer is entitled only to use the software and is not granted any rights to access, modify, or own the source code of the software.
(2) The above-mentioned stipulation shall explicitly not be applicable to the use of SAP software and services using a subscription model. With respect to the use of SAP services, exclusively the terms of use granted in the subscription offer and the terms within the SAP End-User License Agreement apply.
(3) Any add-on solutions developed by Axxis for the customer shall remain intellectual property of Axxis, and Axxis shall have the rights to re-sell such solutions without limitations regarding territory, period of time or otherwise, unless otherwise agreed upon in writing.
Section 9 – Restrictive Covenants
(1) Both Axxis and the customer mutually undertake not to recruit persons directly involved in performing the Services, neither for themselves nor for any third parties.
(2) Each Party further represents and warrants to, and undertakes with, the other Party (the “Affected Party”) and its successors in title that it (whether alone or jointly with any other person, and whether directly or indirectly, and whether as shareholder, participator, partner, promoter, director, officer, agent, manager, employee or consultant of, in or to any other person) shall not during the duration of this Agreement and for a period of one (1) year after the date of termination or expiry of this Agreement (“Termination Date”):
Solicit or endeavour to entice away from or discourage from being employed by the Affected Party any person who was at the Relevant Date an officer or employee of the Affected Party whether or not such person would commit a breach of contract by reason of leaving service;
employ or engage or attempt to employ or engage or negotiate or arrange the employment or engagement by any other person, firm or company of any person who was at the Relevant Date, or was at any time during the period of 1 year prior to such date, an officer or employee of the Affected Party;
(3) If, during the term of this Agreement or for twelve months thereafter, the customer directly or indirectly retains the services (whether as an employee, independent contractor or otherwise) of any employee of Axxis (or ex-employee within three months of the employee’s termination from Axxis) who has provided services to the customer on behalf of Axxis, then the customer shall pay damages to Axxis in the amount of Fifty Thousand SGD (50,000 SGD). Both parties agree that this amount is a fair and equitable amount to compensate Axxis for all costs of having to hire a new employee, opportunity costs, training costs and the like.
Section 10 – Services
(1) Services which are not covered by the explicit performance specifications shall be agreed upon separately. In this regard, the hourly rates set forth in the contracts shall apply.
(2) In the event the contracts do no explicitly state hourly rates, then the prevailing price list of Axxis for hourly rates of consulting services shall apply.
Section 11 – Mutual Respect and Zero Tolerance for Abuse Clause:
(1) Both parties agree to treat each other with respect and professionalism throughout the duration of the consulting engagement. The Company maintains a zero-tolerance policy towards any form of abusive behaviour, which includes but is not limited to:
(2) The Company reserves the right to terminate the consulting engagement immediately for cause in accordance to Section 15 – Termination without liability if any consultant experiences such behaviour from the client. This includes instances where such behaviour is directed towards the consultant directly or witnessed by the consultant within the client’s organization.
We are committed to maintaining a safe and respectful working environment for all our consultants, and any violation of this policy will be dealt with promptly and decisively.
Section 12 – Written Form / Electronic Procedure
(1) Amendments and supplements of the contract as well as all declarations of intent and declarations to exercise a right to influence a legal relationship, in particular terminations, reminders or the setting of deadlines shall be made in written form. The written form requirement may also be complied with by exchange of letters or by signatures conveyed in electronic form (telefax, conveyance of scanned signatures via e-mail, or other electronic procedures for entering into a contract made available by or on behalf of Axxis (e.g. Docusign procedure).
Section 13 – Data Protection
(1) The parties shall comply with the respective statutory data protection provisions, insofar as such provisions are applicable to the contract and the respective services.
Section 14 – Termination
(1) Termination of Convenience. The customer may terminate services within the project upon giving Axxis ninety (90) days’ prior written notice. In the event of such termination, the customer is liable for payment up to and until the date of termination
(2) Termination for Nonpayment. If the customer defaults in the payment when due of any amount due to Axxis and does not, within thirty (30) days after being given written notice, either: (a) cure such default; or, (b) indicate that the payment is in dispute and provide a detailed explanation of such dispute, then Axxis may terminate the contract or service agreement related to such non-payment.
(3) Termination for Cause. If either Party materially defaults (including but not limited to the willful, material and wrongful disclosure of Confidential Information) in the performance of any of its duties or obligations under this Agreement (except for a default in payments by the customer) which default is not substantially cured within thirty (30) days after written notice is given to the defaulting Party specifying the default, or, with respect to those defaults which cannot reasonably be cured within thirty (30) days, if the defaulting Party fails to proceed within thirty (30) days to commence curing said default and to proceed with all due diligence substantially to cure the default, but in any event does not substantially cure the default within ninety (90) days, then the Party not in default may, by giving written notice of termination to the defaulting Party, terminate this Agreement as of a date specified in the notice of termination (the “Termination Date”) such Termination Date being subsequent to the date of the notice of termination.
(4) Effect of Termination. In the event of Termination of this agreement, Axxis shall stop all work as of the date of termination set forth in the notice of termination. The customer shall owe Axxis for all Services performed and all Travel and Incidental Expenses incurred up to the effective date of termination set forth in the notice of termination. The customer shall not be obligated to pay for Services, Travel Expenses, or Incidental Expenses after the effective date of the termination to Axxis unless prior mutually agreed upon. Upon any termination of this Agreement each party shall also promptly return to the other all Materials owned by the other (except for copies authorized under this Agreement), all Confidential Information of other Party and upon request provide to the other written confirmation that all such items have been returned or destroyed.
Section 15 – Governing Law and Settlement of Disputes
(1) This Agreement shall be governed by and construed in accordance with the laws of the country in which the relevant subsidiary of Axxis is domiciled (i.e., either Singapore or Malaysia), without regard to its conflict of law provisions.
(2) Any and all disputes, controversies, and conflicts between the Parties arising out of or in connection with this Agreement shall, so far as is possible, be settled amicably between the Parties
(3) The Parties irrevocably agree that the courts of the country in which the relevant subsidiary of Axxis is domiciled shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).