ABS Technology Terms + Conditions
The terms of this Agreement shall apply (in the absence of any specific written agreement signed by both parties for the services required) each time the Customer engages ABS to provide services. All services provided will be described in one or more of the following: (i) a description of services or applicable services quote; (ii) any mutually agreed Statement of Work (“SOW”), as applicable. The documents described in (i) and (ii) above shall be referred to as “Service Documents”.
1.1 “Applicable Law” shall mean any international, federal, state, or local statute, regulation, or ordinance, expressly including without limitation those relating to individual privacy or the distribution of email and other one-to-one digital messages.
1.2 “Order” or “Orders” shall mean the request for Customer’s purchases of Services from ABS that are executed by the parties from time to time and may be part of a Statement of Work or Quote, which shall be governed by the terms of this Agreement.
1.3 “Services” shall mean the implementation, integration, consulting, and/or similar services described in a Statement of Work and provided by ABS employees and subcontractors.
1.4 “Statement of Work” or “SOW” shall mean the document describing the scope and schedule of Services, if any, to be performed by ABS for Customer. An SOW may be a stand-alone document or incorporated into an Order and shall be governed by the terms of this Agreement.
2.1 ABS is relying on the assumptions as may be set out in any Service Document (“Assumptions”) and other information provided by the Customer to provide the Services on the terms set out in this Agreement and any of the Service Documents. During the provision of the Services, ABS may analyze the Customer’s information technology environment and other factors relevant to the Services, and compare this with any data provided by the Customer and the Assumptions to determine whether this data and these Assumptions differ. If a material discrepancy with respect to the level of performance of the Customer’s environment, other information provided by the Customer, or the Assumptions is found, the parties shall meet to negotiate equitable changes to any affected Service Document, any agreed service levels and/or charges, as appropriate. Prior to agreeing any such changes, ABS retains the right to suspend the services, carry out such services as are reasonable considering the discrepancies or increase the charges to cover any increased costs it incurs as a result of such findings and any agreed service levels shall not apply.
3. COMMENCEMENT OF SERVICES
3.1 Requests for Service; Quotes and Orders. All Orders must specify ABS’ quotation (if any), and reference the Service(s) requested. The Customer may place orders in writing, by email, or by facsimile transmission. The terms of this Agreement shall apply each time an order for services is submitted by Customer and accepted by ABS.
3.2 Commencement of Professional Services and/or delivery of equipment and/or software is contingent upon execution of the Service Documents and the receipt of a valid Purchase Order. Lead-times to commence work may vary significantly and are dependent upon resource availability and product lead times as applicable.
3.3 Further, in the event that ABS is unable to commence the provision of all or part of the Services by any milestone specified in a Service Document due to any delay or default attributable to the Customer (which shall for these purposes include the delay or default of any Customer contractor), then the Customer shall defend, indemnify, and hold harmless ABS and its representatives from and against any and all losses arising out of or in connection with any such delay or default.
4. SERVICES CANCELLATION AND RESCHEDULING
4.1 Cancellation. Customer agrees that any cancellation or rescheduling of services within 15 Days of Installation Start Date set forth in the Service Documents or during the Kick-Off Call, will result in a payment to ABS of 25% of the total services budget not to exceed $5,000, in order to compensate ABS for reasonably anticipated costs and expenses associated with such cancellation or rescheduling of services. Should the project be terminated prior to completion, Customer will be responsible for all services performed between start date and termination date. All cancellations and rescheduling requests must be made in writing and submitted to the designated ABS Project Manager.
4.2 Rescheduling Any rescheduling requests must be made in writing and submitted to the assigned ABS Project Manager 3 days (72 hours) prior to departure for onsite arrival. Any rescheduling request made after the 3 day window will result in additional charges on a time and materials basis, in addition to any payment required by Section 4.1. Rescheduling may also be required, and additional charges as set forth above incurred, if ABS personnel arrive onsite and encounter environmental conditions that will require additional onsite time or additional travel to complete the tasks assigned. These conditions that are outside of ABS control, may include, but are not limited to: missing equipment, electrical issues, vender or carrier delays, and/or limited access.
5. ACCEPTANCE OF SERVICES
5.1 All completion and acceptance notifications and acknowledgements regarding Services performed will be made in writing, by email, or by facsimile transmission.
5.2 Upon notification that ABS has completed Services, Customer has five (5) working days to schedule appropriate personnel to review the particular services performed and acknowledge the completion of the services as stated in the applicable Service Documents or by signing the supplied Customer Site Acceptance document. Customer’s failure to respond within the designated five (5) day period signifies Customer’s acceptance and authorizes ABS to send Customer an invoice for the Services and Customer agrees to make payment in full according to Section 5.
In order to refuse acceptance of the services performed, Customer must, within the five (5) day response period, indicate non-acceptance on the Customer Site Acceptance document and immediately provide written notification to ABS, describing why Customer is rejecting the services performed. ABS shall make reasonable efforts to correct the problem after the receipt of such notice, given it is within ABS’s scope to do so. Customer’s failure to respond within the designated five (5) day period signifies Customer’s acceptance and authorizes ABS to send Customer an invoice for the Services and Customer agrees to make payment in full.
6.1 This Agreement will remain in full force and effect until terminated by either Party.
6.2 Either party may terminate this Agreement, in whole, with thirty (30) days written notice.
6.3 Either party may terminate this Agreement, in whole or in part, effective immediately, if the other party commits a material breach of this Agreement and the breach is not cured within thirty (30) days of receipt of written notice thereof from the injured party. Upon expiration of the cure period, all rights and obligations of the parties under this Agreement will automatically terminate effective as of the date of notification, except for rights of action accruing prior to termination, payment obligations and any obligations that expressly or by implication are intended to survive termination.
7. NON PAYMENT
7.1 Notwithstanding the termination provisions set forth hereinabove, ABS shall be entitled to terminate this Agreement with immediate effect upon written notice to the Customer in the event that the Customer fails to pay any sums due to ABS and such sums remain outstanding thirty (30) days after written notice from ABS.
8.1 Either party shall be entitled to terminate this Agreement with immediate effect upon written notice to the other party in the event that: (i) the other party passes a resolution for its winding-up or the making by a court of an order for the winding-up or the dissolution of the other party (except for the purpose of a solvent amalgamation or reconstruction); (ii) the other party becomes subject to an administration order or receivership or has its assets possessed or sold by a secured party; or (iii) the other party makes an arrangement or composition with its creditors generally or makes an application to a court for protection from its creditors generally or such similar action in the applicable country.
9. ABS’S INTELLECTUAL PROPERTY
9.1 Subject to the limited rights expressly granted hereunder, ABS reserves all rights, title, and interest in and to the ABS developed programs or software, including all related patent, copyright, trademark and other intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein. In addition, ABS shall own all rights, title, and interest, including all intellectual property rights, in and to any improvements to any upgrades, modifications, refinements, or enhancements (collectively, “Improvements”) developed by or for ABS in connection with providing the Services or Products to Customer, even when such Improvements result from Customer’s request. To the extent, if any, that ownership in such Improvements does not automatically vest in ABS by virtue of the Agreement or otherwise, Customer hereby transfers and assigns to ABS all rights, title, and interest that Customer may have in and to such Improvements.
10.1 Customer understands that ABS shall bear no responsibility for the performance, repair or warranty of any of Customer’s software or hardware products or any software, hardware product or service provided to Customer by a third party, and Customer shall look solely to the third party provider for all remedies and support with regard to such products or service.
11. SERVICES WARRANTY
11.1 ABS warrants that the Services will be performed in a professional and workmanlike manner consistent with applicable industry standards. This warranty will be in effect for a period of thirty (30) days from the completion of the applicable Services (the “Warranty Period”). If during the Warranty Period, ABS receives written notice from Customer of non-conformity with the performance of the Services set forth in the applicable Service Documents, ABS will, as Customer’s sole and exclusive remedy and ABS’ entire liability for any breach of the foregoing warranty, at its sole option and expense, promptly re-perform any Services that fail to meet this limited warranty or refund to Customer the fees paid for the non-conforming Services. THE FOREGOING STATES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR WARRANTY CLAIMS RELATED TO THE SERVICES, AND ABS HEREBY DISCLAIMS ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED.
12. CUSTOMER RESPONSIBILITIES
12.1 It is the Customer’s responsibility to backup data on the Customer’s system. ABS IS NOT RESPONSIBLE FOR ANY LOSS OF, COURRUPTION OF, OR DAMAGE TO DATA OR RECOVERY OF DATA, PROGRAMS OR LOSS OF USE OF SYSTEM(S) OR NETWORK.
12.2 The Customer acknowledges that ABS’ performance and delivery of the Services are contingent upon: (i) the Customer providing safe and hazard-free access to its personnel, facilities, equipment, hardware, software, network and information ; (ii) the Customer’s timely decision-making, notification of relevant issues or information and granting of approvals and/or permission; and (iii) designating a primary Point of Contact (PoC) to whom all communications will be directed.
12.3 The Customer will promptly obtain and provide to ABS any required licenses, approvals or consents necessary for ABS’ performance of the Services.
12.4 The Customer shall perform all of the Customer Responsibilities set out in the Service Documents. The Customer shall provide reasonable assistance, cooperation, timely decisions and support in connection with the provision of the Services by ABS. The Customer shall provide ABS with access to and use of all that information, data, and internal resources as is reasonably necessary to deliver the ABS Services. The Customer represents and warrants that all information and data supplied to ABS under this Agreement is current, complete and accurate.
12.5 The Customer shall provide, where applicable, secure access to adequate work space, supplies, facilities (including local and wide area networks), telephones, power, and lighting (“Customer Facilities“) at no charge to ABS. Customer Facilities must be within reasonable proximity to where Services are to be performed. The Customer shall provide timely access and use of Customer Facilities and any assets belonging to the Customer or any assets which the Customer is entitled to use (“Customer Assets”) to enable ABS to perform the Services. ABS may not use Customer Facilities and Customer Assets for any purpose other than the provision of Services under this Agreement without the prior written consent of the Customer.
12.6 The Customer shall ensure that, in the course of accessing or using Customer Facilities and Customer Assets, ABS shall not be exposed to any materials or conditions which are classified or identified as hazardous, toxic, or unsafe under applicable law and the Customer shall comply with all local health and safety law and regulations in respect of such Customer Facilities and Customer Assets and shall defend, indemnify, and hold harmless ABS and its representatives from and against any and all losses arising out of or in connection with any such claim against ABS or its representatives by any ABS employee, ABS sub-contractor or other third party.
12.6.1 The Customer shall inform ABS Project Manager of all Safety and compliance requirements on the client site.
12.7 The Customer shall be responsible for obtaining all consents, approvals, and licenses required by the Customer’s suppliers, the Customer’s licensors, the Customer’s lessors, the Customer’s government regulators and other third parties which are necessary to support or permit the provision of Services by ABS under this Agreement, at no cost to ABS (“Required Consents”). In the event that one or more Required Consents cannot be obtained by the Customer, the parties shall cooperate with each other and take reasonable steps to resolve the matter, provided however that ABS shall not be liable for failure to provide Services or to achieve service levels under any SOW to the extent such failure is caused by or a result of the Customer’s failure or inability to obtain any such Required Consents. ABS shall execute such non-disclosure agreements as the applicable suppliers, owners, licensors or lessors may reasonably request as a condition of providing Required Consents.
12.8 The Customer shall be responsible for carrying out equipment and technology upgrades, refreshes and replacements for any equipment and technology that is out of scope, as specified in accordance with the provisions of the Service Documents
12.9 The Customer acknowledges that any training provided will not lead to a vendor certification and is not certified by a vendor unless otherwise stated in the Service Documents.
13.1 If a separate, written nondisclosure agreement exists between ABS and the Customer, that agreement will control and will apply according to its terms and conditions to all confidential information the parties exchange with each other. If no separate written nondisclosure agreement exists between ABS and the Customer, the following terms listed below in this Section will apply to the confidential information the parties exchange with each other:
The Customer and ABS acknowledge that, in the course of dealings between the parties, each party may acquire information or materials about the other party, its business activities and operations, its technical information, customer information and trade secrets, and other proprietary information which are of a confidential or proprietary nature (whether written or oral). Information will be treated as confidential (i) if it is marked or accompanied by documents clearly and conspicuously designating them as “confidential” or the equivalent; (ii) if it is identified by the disclosing party as confidential before, during or promptly after the presentation or communication; or (iii) might reasonably be considered to be confidential given the nature of the information or the circumstances of disclosure. Each party shall use the same degree of care, but no less than a reasonable degree of care, as the party uses with respect to its own similar information to protect the information and to prevent (i) any use of information not authorized in this Agreement, (ii) dissemination of information to any employee of the party without a need to know, (iii) communication of information to any thirty party, or (iv) publication of such information. Each party shall ensure that its employees, to whom disclosure of such information has been made, shall be subject to similar obligations of confidentiality as those set out in this Section. Neither party shall, nor shall permit its employees to, use such information for any purpose other than in the performance of its obligations under this Agreement. These restrictions of confidentiality will not apply, however, to any information which (i) was known to the receiving party before receipt from the disclosing party; (ii) is or becomes publicly available through no fault of the receiving party; (iii) is rightfully received by the receiving party from a third party without a duty of confidentiality; (iv) is disclosed by the disclosing party to a third party without a duty of confidentiality on the third party; (v) is independently developed by the receiving party without a breach of this Agreement; or (vi) is disclosed by the receiving party with the disclosing party’s prior written approval. If a receiving party is required by a government body or court of law to disclose information, the receiving party agrees to give the disclosing party reasonable advance notice so that the disclosing party may contest the disclosure or seek a protective order. Each party warrants that it has the right to disclose its confidential information. Each party agrees to return to the other party, or to destroy (and to certify the destruction in writing to the other party), all materials containing any confidential information of the other party, regardless of the media and regardless by whom prepared, within ten (10) business days after demand for the materials or in any event within ten (10) business days after termination or expiration of this Agreement. Each party agrees to return to the other party any other materials belonging to the other party, regardless of the media and regardless by whom prepared, within ten (10) business days after demand for the materials or in any event within ten (10) business days after termination or expiration of this Agreement. The parties further agree that this Section shall remain in effect for a period of three (3) years from the termination date of this Agreement. The terms and conditions of this Agreement shall be deemed to be confidential information. No press release or announcement of publicity concerning this Agreement or any matter arising under or pursuant to it shall be made by the Customer without the prior written consent of a duly authorized ABS representative.
14.1 The Customer accepts responsibility for, and agrees to indemnify and hold ABS harmless from, any and all liability, damages, claims or proceedings arising out of (i) the failure of the Customer to obtain the appropriate license, intellectual property rights, or any other permissions, regulatory certifications or approvals required to support any Service Description, SOW, or Technical Specification Form or ABS’ performance of the Services, or (ii) any inaccurate representations regarding the existence of an export license.
15. EMPLOYMENT INDEMNITY
15.1 The Customer shall keep ABS fully indemnified against any claims, costs, demands, awards, compensation or other liability of any nature arising out of the termination of the employment rights (by way of redundancy or otherwise) or deemed transfer of any employment rights of any employees of the Customer, or the previous supplier providing the Services for the Customer, resulting from the entering into or termination of any Services, SOW or this Agreement (in whole or in part) for whatsoever reason.
15.2 In the event that any member of ABS personnel (whether employed or engaged by ABS or one of its contractors or agents) brings a claim against ABS as a result of any act or omission of the Customer or any of the Customer’s employees, contractors or agents (including any claim arising from a request by the Customer that the individual be removed from providing any part of the Services), the Customer shall cooperate with ABS in defending any such proceedings and shall indemnify and hold ABS harmless in respect of any award of compensation or other payment made by a court or tribunal or any monies paid in respect of any settlement and all legal costs and any disbursements incurred by ABS in dealing with any such claim.
16.1 To give notice under this Agreement, the notice must be in writing and sent by postage prepaid first-class mail, receipted courier service, facsimile telecommunication or electronic mail to the address which appears on the Customer’s invoice or to such other address as any party shall specify by notice in writing to the other party and will be effective upon receipt.
17. SECTION HEADINGS
17.1 The section headings contained in this Agreement are inserted for reference purposes only and shall not affect the meaning or interpretation of this Agreement.
18. ASSIGNMENT; SUBCONTRACTING
18.1 The Customer may not assign this Agreement without the prior written consent of ABS. ABS has the right to subcontract the performance of the Services provided under this Agreement (in full or in part), and upon prior written notice to Customer, ABS may assign this Agreement to an affiliate or to a successor to all or substantially all of its assets.
19. INDEPENDENT CONTRACTOR
19.1 The parties are independent contractors. Neither party will have any rights, power or authority to act or create an obligation, express or implied, on behalf of another party except as specified in this Agreement.
20. ENTIRE AGREEMENT; ORDER OF PRECEDENCE; SEVERABILITY
20.1 This Agreement (with attachments) is the entire agreement between ABS and the Customer with respect to its subject matter and supersedes all prior oral and written understandings, communications or agreements between ABS and the Customer. No amendment to or modification of this Agreement, in whole or in part, will be valid or binding unless it is in writing and executed by authorized representatives of both parties. In the event of a conflict between the terms of this Agreement, SOW, OR ABS’ standard Terms & Conditions of Sale and Service (“T’s & C’s”), the terms of these documents will be followed according to the following order of precedence: (1) this Agreement, (2) the applicable Order (3) SOW (4) the T’s & C’s. If any provision of this Agreement is void or unenforceable, the remainder of this Agreement will remain in full force and will not be terminated.
21. CHANGE ORDERS
21.1 Additions or modifications to the Services may be accomplished through the use of a “Change Order”. A Change Order must be in writing and signed by each party in order to be effective. The procedure for creating a Change Order is as follows: (1) Customer shall submit a written request to ABS specifying the additions or modifications to the Services desired (the “Change Notice”); and (2) if ABS is prepared to add to or modify the Services as requested by the Customer, it shall prepare and submit an amendment to the Service Documents (the “Change Order”) to Customer which shall include a description of the changes to the Services and any additional fees. On obtaining the Customer’s written signature to the Change Order, the Change Order will become part of the Service Documents.
22. FORCE MAJEURE
22.1 Neither party shall be liable to the other party for any failure to perform any of its obligations (except payment obligations) under this Agreement during any period in which such performance is delayed by circumstances beyond its reasonable control including, but not limited to, fire, flood, war, embargo, strike, riot or the intervention of any governmental authority (a “Force Majeure”). In such event; however, the delayed party must promptly provide the other party with written notice of the Force Majeure. The delayed party’s time for performance will be excused for the duration of the Force Majeure, but if the Force Majeure events lasts longer than thirty (30) days, the other party may immediately terminate the applicable Service Documents by giving written notice to the delayed party.
23.1 Neither Party shall, during the term of any specific service being performed by ABS and for one (1) year after termination thereof or completion of the Services hereunder, solicit, offer to hire or hire an employee or contractor of the other party or an Affiliate thereof whom it knows participated in the performance of Services under such Service Documents or assist in the hiring of such employee or contractor by any other party without the prior written consent of the employer of such employee.
23.2 Notwithstanding the foregoing, the Parties agree that hiring of an employee involved in providing Services under this agreement through a general solicitation in the media in response to an unsolicited inquiry directly during the time period described in 23.1 above will entitle the former employer to liquidated damages from the hiring Party, consisting of an amount equal to the hired employee’s one (1) year’s gross salary at the time of leaving the former employer.
24. DISPUTE RESOLUTION
24.1 The parties will attempt to resolve any claim, or dispute or controversy (whether in contract, tort or otherwise) against ABS, its agents, employees, successors, assigns, or ABS Affiliates (collectively for purposes of this paragraph, “ABS”) arising out of or relating to this Agreement, ABS’ advertising, or any related purchase (a “Dispute”) through face to face negotiation with persons fully authorized to resolve the Dispute or through mediation utilizing a mutually agreeable mediator, rather than through litigation. The existence or results of any negotiation or mediation will be treated as confidential. Notwithstanding the foregoing, either party will have the right to obtain from a court of competent jurisdiction a temporary restraining order, preliminary injunction or other equitable relief to preserve the status quo, prevent irreparable harm, avoid the expiration of any applicable limitations period, or preserve a superior position with respect to other creditors, although the merits of the underlying Dispute will be resolved in accordance with this paragraph. In the event the parties are unable to resolve the Dispute within thirty (30) days of notice of the Dispute to the other party, the parties shall be free to pursue all remedies available at law or equity.
Last Updated: September 2019