1. GENERAL PROVISIONS
1.1. This Legal Framework (hereinafter – “Legal Framework”) together with the proposal delivered to the Customer (hereinafter-“Proposal”) constitute the Master Service Agreement (hereinafter – “Agreement”) between Naviu GmbH with its registered office in Berlin, address: Pappelallee 78-79, 10437 Berlin, EU-VAT ID: DE352378535 (hereinafter – “Contractor”) and the Customer defined in the Proposal (hereinafter – “Customer”).
1.2. In the event of any discrepancy between the Legal Framework and the Proposal, the content of the Proposal shall prevail.
2. SERVICES
2.1. The Contractor commits to render the services described in the Proposal to the Client (hereinafter - “Services”), and the Client commits to pay remuneration for the Services as specified in the Proposal.
2.2. The Services shall meet technical specifications and the requirements described in Project Specification of the Proposal. Any additional requirements must be mutually agreed by the Parties in text form (e.g. email).
2.3. The Services shall be performed in accordance with the common industry and Contractor’s own working methods.
2.4. The Customer is obliged to provide the Contractor with any and all information, documents, materials and data necessary to commence the Services prior to Start Date. During the Services provision, the Customer shall cooperate with the Contractor in regard to the reasonable requests for information, and shall promptly but no longer than 3 (three) working days from such request, provide the Contractor with the data, documentation, and material necessary for the performance of the Services by the latter. The Contractor shall not be liable for any delay, non-performance or improper performance of Services resulting from the Customer's failure to provide or late provision of any requested items.
2.5. The Contractor may engage third parties (subcontractors/partners) to provide the Services under this Agreement without Customer’s consent, but in any case, the Contractor is liable to the Customer for the actions of such persons regarding the performance of the Services under this Agreement.
3. INTELLECTUAL PROPERTY
3.1. Copyright and all other Intellectual Property Rights and title(s) to the Material and all amendments, changes and enhancements thereto, shall belong to the Customer from the moment and subject to full payment of all fees for services performed hereunder. “Intellectual Property Right” means any and all patents, utility models, designs, the copyright for the program/product (or individual elements), specifications, schemes, protocols, reports, databases, domain names, trademarks, trade names, and any other intellectual property rights, whether registered or not and applications for any of the aforementioned respectively as well as any trade secrets. “Material” means all documents and other material generated during or as a result of performing the Services under this Agreement, including, but not limited to, concepts, drawings, schematics, storyboards, products developed using different technology as well as any other materials, documentation, and amendments, new versions and updates of the same.
3.2. The exclusive property rights for usage of the Intellectual Property allows the Customer to use it in any form and in any way with no preconditions.
3.3. Taking into consideration that the Contractor provides different software development services and for these purposes third-party platforms can be used, the Contractor can grant/license to the Customer only those Intellectual Property rights, which are considered to be his according to the third party platform policy. The Customer guarantees to hold the Contractor from bringing any actions, claims or litigations regarding the Intellectual Property rights to the Materials developed under this Agreement which are not in the Contractor’s possession.
3.4. The Contractor does not have or reserve any rights to the Intellectual Property under this Agreement.
3.5. The Fee for the Services includes royalties for the transfer to the Customer of the full scope of the intellectual property rights created as a result of the work (services) under this Agreement.
3.6. The Contractor is entitled to use the fact of working for the Customer, Custromer’s name, trademark and logo as a promotional reference, a case study and in marketing materials.
3.7. The Contractor shall ensure that its personnel and subcontractors assign copyrights and all other Intellectual Property Rights to the Material to be reassigned forward to the Customer. The above-mentioned copyright includes the free right to make changes to the Material and to further assign copyright. In the event the Material contains any product developed with no-code technology, the Contractor shall provide the Customer with full access to such product and accompanying documentation. To the extent that any applicable law or treaty prohibits the transfer or assignment of any moral rights or rights of restraint, the Contractor waives those rights as to the Customer, its successors, licensees and assignees on the terms of this Agreement. Where the applicable law excludes the assignment of intellectual property rights, the Contractor hereby grants the Customer the exclusive, transferable, sublicensable, worldwide, unlimited and fully compensated right to use the Intellectual Property Rights to the Material at its free discretion.
3.8. This Agreement shall not give a Party any direct, indirect or implied right or license to use or otherwise exploit Intellectual Property Rights belonging to the other Party, except as otherwise specified in this Agreement.
3.9. The Contractor warrants that the Material(s) supplied by it according to this Agreement shall not infringe any Intellectual Property Rights and/or other rights of a third party.
3.10. The Customer shall not be entitled to use and manage any unpaid portion of Intellectual Property and such use or management shall constitute a breach of this Agreement and subject the Customer to liability.
3.11. The Contractor has no right to use for its own purposes or for the interests of any other persons any Intellectual Property of the Customer or created by the Contractor in order to this Agreement, if the Parties have not agreed otherwise in writing.
3.12. The Customer possessing the exclusive property right preserves its effect during the whole duration term of the copyright on all territories of the world, including all countries.
4. CONFIDENTIALITY
4.1. Confidential Information means any information that is transmitted by one Party to the other in any form, and by the Party transmitting (communicated) as non-disclosure information, including: all ideas, improvements, inventions, methodologies, works and other innovations of any nature that have been invented, devised, developed, produced or embodied by the disclosing Party; trade secrets or other information that should have legal protection as Confidential Information (including, but not limited to:
● information on the industrial, scientific and commercial experience of the Parties,
● information on the management, structure and characteristics of the Parties,
● formulas, methods, databases, marketing and new product plans, production,
● methods of advertising, packaging and marketing, marketing plans,
● product plans
● technical plans,
● business strategies,
● information on strategic allies and partners,
● financial information,
● information of a technical nature,
● methodologies and techniques, forecasts,
● information on the Party's personnel,
● consumer lists,
● trade secrets, properties, specifications,
● information on potential and actual consumers, suppliers,
● confidential information, as well as all other types of documentation that are transmitted by one Party to the other).
4.2. Each Party receiving Confidential Information of the other Party shall keep in confidence all Confidential Information of the other Party and shall not disclose it, whether in oral, written or any other form, to any third party or use the Confidential Information of the other Party for any purpose other than for the purpose of performing this Agreement.
4.3. A receiving Party shall have the right to (a) copy Confidential Information only to the extent necessary for the purpose of performing this Agreement; (b) disclose Confidential Information only to those of its Employees/Contractors who need to know Confidential Information for the purpose of performing the Services under this Agreement; and (c) disclose Confidential Information to its own advisors provided that such advisors are bound by confidentiality provisions at least as restrictive as contained in this Section 5.
4.4. Notwithstanding the foregoing, the confidentiality obligation shall not be applied to any material or information (a) which is generally available or otherwise public other than as a direct or indirect result of disclosure on the part of the receiving Party or any person employed or engaged by the receiving Party contrary to their respective obligations of confidentiality; or (b) which a Party has received from a third party without any obligation of confidentiality; or (c) which was in the possession of the receiving Party prior to receipt of the same from the other Party without any obligation of confidentiality related thereto; or (d) which a Party has developed independently without using material or information received from the other Party; or (e) which the receiving Party shall disclose pursuant to a law, decree, or other order issued by the authorities or judicial order, provided that in this case, the receiving Party shall give the other Party written notice of such requirement prior to disclosing so that the other Party may seek a protective order or other appropriate relief.
4.5. Each Party agrees that it shall take all reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information of the other Party. Without limiting the foregoing, each Party shall take at least those measures that such Party takes to protect its own confidential information.
4.6. Each Party shall cease using Confidential Information received from the other Party promptly upon termination of this Agreement or when the Party no longer needs the Confidential Information in question for the purpose of performing this Agreement. Unless the Parties separately agree on the destruction of such Confidential Information, the Parties return such material in question and all copies thereof.
4.7. The confidentiality obligations described in this Agreement shall remain in force notwithstanding termination of this Agreement, no longer however than for 5 years after termination date.
5. NON-SOLICITATION
5.1. The Customer agrees that during term of this Agreement and 3 (three) years from the date of its expiration/termination/dissolution/fulfillment, the Customer shall refrain from soliciting of any person to be known as the Contractor’s employee/partner/contractor.
5.2. The Contractor’s employee/partner/contractor means any legal or private person (including a sole proprietor) who has an employment contract or other agreement/legal relationship with the Contractor, as well as any legal or private person (including a sole proprietor) whose employment contract or other agreement/legal relationship with the Contractor, was terminated not earlier than 3 (three) months before the execution of the Agreement.
5.3. The Customer, in this case, is taken to mean the Customer as a legal entity, or the Customer’s employee, or the Customer’s affiliate, or the Customer’s partner, or any other person acting on behalf or for the benefit of the Customer.
5.4. The solicitation of any person known as the Contractor’s employee/partner/contractor is taken to mean the purposeful behavior of the Customer, resulting in the subsequent conclusion of an employment contract or other agreement with the above-mentioned persons:
5.4.1. the Customer’s offer to the Contractor’s employee/partner/contractor in any form (verbally, in writing or using any means of communication, excluding any advertisement on vacancies in specialized publications and on specialized Internet sites addressed to any number of unspecified persons), including negotiating the possibility of such offer;
5.4.2. the Customer’s behavior is aimed at convincing the Contractor’s employee/partner/contractor to accept the employment offer or other form of cooperation with the Customer.
5.5. Upon and subject to the terms and conditions of this Agreement, Non-Solicitation of employees is of a civil law character and regulates relations between the Parties and cannot be interpreted as limitation or restriction of the labor or any other rights of the Contractor’s employees.
5.6. The actions of the Customer specified in these clauses will be a violation of the Customer’s obligations arising from this Agreement, and will also be the reason for the Contractor’s damage claiming and penalty recovery from the Customer in accordance with this Agreement.
5.7. In case the Contractor gets positive knowledge that the Customer is or may be in violation of the above non-solicitation obligations, the Contractor shall immediately send the Customer a written claim for ceasing any solicitation actions within 30 (thirty) calendar days after receiving the above-mentioned claim and obligate the Contractor to provide sufficient evidence on the cessation of such violation to the Contractor.
5.8. The Customer is obliged to pay the Contractor liquidated damages in 100,000 (one hundred thousand) EUR for each of the Contractor’s employee/partner/contractor solicited by the Customer. Further claims for damages exceeding the amount of liquidated damages are not excluded and the Customer is obliged reimburse in full for the damages caused by such violation, including the Contractor’s expenses or any other costs relating to the selection of a new employee/contractor instead of the employee/contractor recruited by the Customer, as well as damages for losses, including future lost profits from cooperation with the Customer and other projects in which the employee/contractor was engaged in.
5.9. Liquidated damages will not relieve a Party of its obligation under this Section 5. Liquidated damages should not be regarded as buyouts.
6. TERM AND TERMINATION
6.1. This Agreement enters into force and is valid for the period indicated in the Proposal.
6.2. The Contractor may terminate the Agreement, when the Customer is in arrears with payment of any amounts due under the Agreement and does not settle the payments upon a call for payment indicating additional payment deadline of 14 days.
6.3. Each Party may terminate the Agreement:
6.3.1. in case of either Party defaults in any obligation pursuant to this Agreement, and if the default is not cured following 7 (seven) calendar days by the defaulting Party;
6.3.2. in case of defaults of clauses ‘CONFIDENTIALITY’ and/or ’NON-SOLICITATION’ of this Agreement with immediate effect.
7. LIABILITY, INDEMNITY, AND INSURANCE
7.1. In no event shall either Party be liable for any indirect, incidental, or consequential damages or expenses, including, but not limited to, loss of profits and lost savings.
7.2. Other than with respect to claims asserting fraud or gross negligence, Parties entire liability for all claims related to this Agreement will not exceed the aggregate amount for Services provision as defined in this Agreement.
7.3. IN NO EVENT, WHETHER AS A RESULT OF BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, PRODUCT LIABILITY, OR OTHERWISE, SHALL THE PARTIES BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION, LOSS OF PROFITS, LOSS OF USE OR DATA OR INTERRUPTION OF BUSINESS OTHER THAN AS SPECIFIED IN THIS AGREEMENT.
7.4. The limitations of liability under this Section 10 of the Agreement shall not apply to (a) damages caused by willful misconduct or gross negligence; (b) breach of Section 6 “CONFIDENTIALITY” hereof; and (c) breach of Section 8 “NON-SOLICITATION” hereof.
7.5. The Contractor shall not be liable for any loss or damage suffered by the Customer that results from the Customer’s failure to follow any instructions given by the Contractor and/or the Contractor’s employee/contractor.
8. FORCE MAJEURE
8.1. The Parties are not liable for any delay of the Agreement performance as well as for any loss, damage, claims, and other expenses that occurred due to the circumstances or reasons that are out of the Parties’ control (hereinafter — “Force Majeure”). The said circumstances and reasons include, but are not limited to:
8.1.1. acts of war (whether declared or not), hostilities, invasion, the act of foreign enemies, terrorism or civil disorder;
8.1.2. ionizing radiations, or contamination by radioactivity from any nuclear fuel, or from any nuclear waste from the combustion of nuclear fuel, radioactive toxic explosive or other hazardous properties of any explosive nuclear assembly or nuclear component thereof;
8.1.3. a strike or strikes or other industrial action or blockade or embargo or any other form of civil disturbance (whether lawful or not), in each case affecting on a general basis the industry related to the affected Services and which is not attributable to any unreasonable action or inaction of the Parties and the settlement of which is beyond the reasonable control of them;
specific incidents of exceptional adverse weather conditions in excess of those required to be designed for in this Agreement which is materially worse than those encountered in the relevant places at the relevant time of year during the 20 (twenty) years prior to the date of signing of this Agreement;
8.1.4. tempest, earthquake or any other natural disaster of overwhelming proportions; pollution of water sources;
8.1.5. discontinuation of electricity supply, not covered by the agreement concluded with the utility company; or
8.1.6. other unforeseeable circumstances beyond the control of the Parties against which it would have been unreasonable for the affected Party to take precautions and which the affected Party cannot avoid even by using its best efforts, which in each case directly causes either Party to be unable to comply with all or a material part of its obligations under this Agreement.
8.2. The Parties agree that the affected Party should inform the other Party about Force Majeure circumstances by whichever of the possible ways, including, but not limited to, sending written notification by e-mail, as soon as possible, but not more than within 7 (seven) calendar days, describing the nature of Force Majeure circumstances occurred, its effect to the performance of the affected Party's obligations under this Agreement and the expected term of such circumstances.
8.3. Business problems of the Parties, such as shortages of raw materials, labor resources or failure of the Parties' partners to perform their obligations, shall not be considered as the Force Majeure and shall not relieve the Parties from liability for failure to perform or improper performance of their obligations under this Agreement.
8.4. The period of performance of obligations under this Agreement shall be extended in proportion to the duration of the Force Majeure described in this Article and the period reasonably necessary to mitigate its effects, provided that due notice of such Force Majeure has been given in accordance with this Agreement to the other Party.
8.5. If the duration of the Force Majeure circumstances exceeds 1 (one) month, each of the Parties shall be entitled to terminate the Agreement, provided that neither Party shall be entitled to claim damages from the other Party incurred as a result of such Force Majeure.
9. MISCELLANEOUS
9.1. Severability
9.1.1. Should any part of this Agreement for any reason be declared invalid, such decision shall not affect the validity of any remaining provisions, which shall remain in full force and effect as if this Agreement had been executed with the invalid portion thereof eliminated. It is hereby declared that the intention of the Parties is that they would have executed the remaining portion of this Agreement without including any such part, parts, or portions which may, for any reason, be hereafter declared invalid. Any provision shall nevertheless remain in full force and effect in all other circumstances.
9.2. Independent Contractor
9.2.1. Nothing in this Agreement shall be interpreted or construed as creating or establishing any partnership, joint venture, employment relationship, franchise or agency or any other similar relationship between Customer and/or its affiliates and Company and/or any of its Resources or employees, and it is specifically clarified that with respect to the Services, no employer-employee relationship will be established between Customer and Company or of its employees or Resources.
9.3. Assignment
9.3.1. The Agreement is not assignable or transferable by either Party without the written consent of the other Party.
9.4. Governing law and jurisdiction
9.4.1. This Agreement shall be governed by, construed and enforced in accordance with the laws of Germany.
9.4.2. Any disputes arising out of or in connection with this Agreement, including any questions regarding its existence, validity or termination, shall be resolved by German courts.
