Terms and Conditions
Effective Date: September 19, 2024
- 1. Definitions
1.1 “Agreement” shall mean these Terms and Conditions govern the provision of services by IT Craft YSA GmbH, a duly registered and acting under the laws of Republic of Germany, or ITCraftIntl OU, a duly registered and acting under the laws of Republic of Estonia (“Contractor”) to client (“Client”) who engage Contractor through a signed Statement of Work (“SOW”). The legal entity of Contractor that is a party to each SOW shall be specified in such SOW. These Terms and Conditions are the legally binding agreement between the Contractor and the Client.
1.2 “Specialist" shall mean a developer, project manager, product manager, designer, QA engineer, manager, and/or any other personnel of Contractor that is engaged by Contractor to provide the Services.
1.3 “System” shall mean email, Zoom, Google Meet, Slack, phone connection or another means of communication between Parties hereunder.
1.4 “Task” shall mean a list of specifications outlining the development and operational requirements of the work product to be produced by the Contractor during the Services provision.
1.5 Collectively, the Client and Contractor are referred to as the “Parties” and each separately as a “Party“.
- 2. Services
2.1 Statement of Work (SOW): Each engagement under this Agreement shall be governed by a separate Statement of Work (SOW) that references these Terms and Conditions. These Terms and Conditions are an integral part of the SOW.
2.2 Description of Services: Contractor shall provide Client with technical and other services as may be agreed by Parties, which may include but are not limited to web development, front-end development, back-end development, system architecture, testing, quality assurance, analytics, design ("Services") on the terms and conditions of the Agreement and the SOW and Client shall accept rendered Services and work product and pay for Services provided on terms and conditions stipulated in the Agreement and the SOW.
2.3 Scope and Specification: Parties agreed that the scope, type of engagement, specification of the Services, methods of their performance, timeframes and costs of the Services provided shall be mutually agreed in the SOW executed under this Agreement, and via the System.
2.4 Performance: Contractor shall perform the Services with reasonable skill and care, in accordance with industry standards. Contractor has the right to engage third parties for provision of Services without receiving consent from the Client. In such a situation, the Contractor is responsible for paying all ordinary and necessary expenses of the third parties it engages. Parties have agreed that the obligations and warranties of third parties engaged under this Agreement by the Contractor related to intellectual property rights and confidentiality will be similar to the obligations of the Contractor described in this Agreement.
2.5 Delivery: If applicable to the nature of the Services, work products provided under the SOW shall be subject to upload by Contractor to the storage location defined by the Client unless otherwise agreed by Parties.
2.6 Tasks: The Services commence with initial consultation and specification of Tasks through mutual agreement via the System. The Client may propose Task adjustments or its modifications, pending Contractor approval. Once requirements are clarified and Task specifications agreed, the Contractor proceeds with Task execution and Services delivery. The Client must provide necessary information, materials and access in advance and promptly notify the Contractor of any operational changes impacting the Service. Parties agree that Services provision terms could be postponed for the term of Client`s answer for Contractor requests, transfer of the information by the Client or the terms of approval by the Client.
2.7 Tools: If the performance of Client’s Tasks requires some special tools, equipment, hardware or network infrastructure components, Client shall provide Contractor with such objects or cover the costs incurred by the Contractor to acquire such tools.
- 3. Payment Terms
3.1 Invoicing and Payment: Client shall pay Contractor for the Services as specified in each executed SOW. All payments are non-refundable.
3.2 Payment Terms: Payments for invoices shall be due within the timeframe specified in the SOW. If no timeframe is specified, payments shall be due within ten (10) business days of receipt of the invoice by Client. All amounts due hereunder shall be paid by transferring the funds to the bank account of Contractor specified in the appropriate invoice. Payment of the invoice issued by the Contractor signifies the Client’s acceptance of the Services provided in the respective period and confirms that the Contractor has fulfilled its obligations under this Agreement, without any objections from the Client.
3.3 Late Payments: After thirty (30) days of non-payment, the Contractor reserves the right to apply interest at a rate of 0.5% per day on any unpaid invoices. This shall not affect any more extensive rights.
3.4. Offsetting, right of retention: A right of retention or offsetting against counterclaims is only permitted if the counterclaims are undisputed or have been legally established.
3.5 Suspension of Services: If Client fails to make payment within the specified period and such payment remains unpaid for more than ten (10) days after notification of the payment default, Contractor may, at its sole discretion and without prejudice to its other rights or remedies, suspend or discontinue the provision of the Services and restrict Client access to Contractor's project environment and infrastructure, including but not limited to GIT and staging servers. The Client will then have an additional two (2) weeks to settle the outstanding invoice(s). During this two-week period, the Contractor will not provide Services to the Client. To resume Services and regain access, the Contractor may request that the Client pay the full amount of the relevant invoice(s) along with an additional monthly payment. This additional monthly payment will be an average of the monthly payments made by the Client over the last three (3) months (or based on the available months if there are fewer than 3) and will cover the period of two (2) weeks of forced downtime during which Services were suspended and will act as a deposit. The Parties may mutually agree on how this deposit will be applied in further cooperation (e.g. as a partial payment for the last month of Services). If the Client does not make this payment within the two-week period, the Contractor may terminate the Agreement. Notwithstanding any suspension or discontinuation of Services, all obligations of the Client for Services rendered prior to such suspension or discontinuation shall remain in full force and effect. Contractor shall not be liable for any delay or failure to perform resulting from such suspension of Services.
3.6 Taxes: Each Party will pay taxes, fees and other obligatory payments related to the provision of Services, which each of them has to pay under the applicable laws in the amount, according to the procedures and under the terms provided by the applicable laws. Nevertheless, Client has to pay all banking fees related to the transfer of funds to the bank account of the Contractor.
3.7 Currency: All payments shall be made in the currency specified in the SOW. If no currency is specified, payments shall be made in USD.
3.8 Additional Services: In the event the Client requests additional services outside the initial scope outlined in the SOW, such services shall be paid in accordance with the Contractor’s invoice. The Parties may agree on the cost or methods of estimating such additional services via the System.
3.9 Expenses: Client shall reimburse Contractor for any Client-approved out-of-pocket expenses incurred by Contractor in connection with providing Services Client.
- 4. Confidential Information
4.1 Definition: "Confidential Information" refers to any information disclosed by one Party (the "Disclosing Party") to the other Party (the "Receiving Party") during the term of the Agreement that is marked as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. This includes, but is not limited to: trade secrets, business plans, strategies, and financial information; technical data, inventions, patents, copyrights, and any related applications; operational and system information, software, source code, and designs; personal data of employees, contractors, clients, or customers; any other information that is designated as confidential.
4.2 Protection: The Receiving Party will not use any Confidential Information except to the extent necessary for the purpose of business partnership (the “Purpose”) and the Receiving Party will not disseminate or in any way disclose any Confidential Information to any person, firm, business or governmental agency or department, except as such disclosure is expressly permitted in this Agreement. The Receiving Party agrees to use commercially reasonable efforts to protect the confidentiality, integrity, and security of the Disclosing Party's Confidential Information. The Receiving Party shall ensure that only authorized personnel with a legitimate need to know have access to the Confidential Information, and shall advise such personnel of their confidentiality obligations.
4.3 Exceptions: Confidential Information does not include information that: (i) is publicly known at the time of disclosure or becomes publicly known through no fault of the Receiving Party; (ii) was in the Receiving Party's possession before receipt from the Disclosing Party without any obligation of confidentiality; (iii) is independently developed by the Receiving Party without reference to or use of the Disclosing Party's Confidential Information; (iv) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or if the Receiving Party is legally obliged to disclose the information.
4.4 Return or Destruction: Upon termination or expiration of the Agreement or upon the Disclosing Party's written request, the Receiving Party shall promptly, at the Disclosing Party's option and upon request, either return or destroy all Confidential Information of the Disclosing Party.
- 5. Intellectual Property Rights
5.1 Ownership: As part of the Services, the Contractor agrees to create a "work product" for the Client, which shall belong exclusively to the Client. The ownership of the work product, including any copyrights or other intellectual property rights pertaining to it, shall be conditionally transferred to the Client upon Contractor's receipt of full payment for each specific work product. "Work product" encompasses the finished product, drafts, notes, materials, mockups, hardware, designs, inventions, patents, code, and any other materials that the Contractor conceives, creates, designs, develops, invents, works on, or reduces to practice as part of these Services. Upon full payment for the work product, the Client shall have the right to use the work product in any manner it deems fit, including modification, destruction, or sale. After the transfer of the work product to the Client following full payment, the Contractor will not retain any rights to the work product, except for those explicitly granted back to the Contractor by the Client in writing. The Contractor's remuneration for the assignment of rights to any intellectual property objects to the Client is included in the total payments for the Services provided under the SOW.
5.2 Pre-existing and Independently Developed Intellectual Property: Nothing in this Agreement shall prevent the Contractor from utilizing general know-how, expertise, skill, and understanding acquired before or during the Services. The Client acknowledges the Contractor's right to use open-source or third-party intellectual property under free-software licenses for service provision and work product creation. The Contractor retains all rights to pre-existing intellectual property, including patents, copyrights, trademarks, trade secrets, know-how, source code, and design objects, granting the Client a non-exclusive, worldwide, royalty-free license to use such pre-existing intellectual property incorporated into work product solely for internal business operations. The Contractor retains ownership of all pre-existing intellectual property used during Service provision and reserves the right to use it for other clients.
5.3 Post-Termination IP Recovery: Upon the expiration or termination of the Agreement, the Client shall have a period of three (3) months to retrieve any intellectual property provided under this Agreement, including but not limited to source code and documentation. It is the Client’s responsibility to ensure the timely retrieval of such intellectual property. Following this three-month period, the Contractor will be relieved of any obligations related to the storage, maintenance, or preservation of the Client’s intellectual property.
- 6. Non-solicitation Obligations
6.1 Non-solicitation: During the term of the Agreement and for a period of twenty-four (24) months immediately following its termination, neither Party, nor their affiliates or subsidiaries, shall directly or indirectly hire or engage, whether as an employee, independent contractor, consultant, or in any other capacity, any person who is or was an employee, contractor, agent, representative, or assign of the other Party involved in the performance or management of this Agreement without the prior written consent of the other Party.
6.2 Notification: Each Party agrees to promptly notify the other Party if any of their current or former employees, contractors, agents, representatives, or assigns attempt to circumvent this provision or otherwise seek employment or engagement with the other Party.
6.3 Involvement Fee: If the Party or its affiliates wish to hire or engage any individual from the other Party who provided services during the Agreement, the hiring Party must pay an "Involvement Fee" within ten (10) business days of starting the cooperation. The Involvement Fee will be mutually agreed upon by the Parties. If not agreed upon, the hiring Party shall pay an Involvement Fee equal to the individual's average monthly compensation over the last twelve (12) active months of their association, multiplied by 12. This Fee is due regardless of the engagement's outcome, expertise, or conditions. Failure to pay forfeits the right to hire or engage the individual as outlined herein.
- 7. Return of Materials
7.1 Return Obligation: Upon termination of the Agreement or upon Client's written request, Contractor shall promptly either return or destroy all materials and documentation provided by Contractor under this Agreement.
- 8. Term and Termination
8.1 Term: This Agreement becomes effective as of the effective date of the SOW. The term of this Agreement shall be specified in the SOW. If no term is specified, the Agreement will remain in effect until terminated as provided herein.
8.2 Termination for Convenience: Either Party may terminate this Agreement for convenience upon thirty (30) calendar days' prior written notice to the other Party.
8.3 Termination for Cause: Either Party may terminate this Agreement immediately if the other Party commits a material breach and fails to cure such breach within fourteen (14) calendar days after receiving written notice of the breach.
8.4 Effects of Termination: Upon termination, Client shall pay for all Services provided up to the termination date and return or destroy all Contractor materials. The Sections 2, 3, 4, 5, 6, 9, as well as any other provisions which by their nature should survive, shall survive the termination or expiration of this Agreement for any reason.
- 9. Limitation of Liability
The liability of the parties shall be limited as follows:
9.1 Liability in the event of simple negligence on the part of one of the parties is excluded, unless it concerns a breach of material contractual obligations. This shall also apply to its executive bodies, legal representatives, employees or other vicarious agents.
9.2 Insofar as a party is obliged to pay damages, the amount of such damages shall be limited to the service fee for the past one (1) month. If the contractual relationship has been in force for a shorter period, the amount of the remuneration paid shall be taken as the basis. Any indirect, incidental, consequential, special, exemplary, or punitive damages (including but not limited to, loss of profits, loss of business, or loss of goodwill) are excluded.
9.3 The limitation of liability does not apply to liability for intentional conduct, gross negligence, for guaranteed characteristics, for injury to life, limb or health or under the Product Liability Act.
- 10. Representation and Warranties
10.1 Mutual Representations: Each Party represents and warrants that it has the full power and authority to enter into this Agreement and to carry out its obligations under this Agreement, and that it will perform its obligations in compliance with all applicable laws and regulations.
10.2 Warranty: There is no warranty for service contracts. If a contract for work or a contract for work and materials is concluded in an exceptional case, a warranty period of one (1) month shall apply. The period shall apply from acceptance of the services. Acceptance must be granted immediately after completion. Minor defects that have no influence on functionality do not prevent acceptance. Use or operation shall also be deemed acceptance. Except as expressly provided in this Agreement, and to the extent permitted by applicable law, Contractor makes no representations or warranties of any kind regarding the Services or work product. Contractor expressly disclaims all implied warranties, including warranties of merchantability, fitness for a particular purpose, and any other implied warranties relating to the capabilities, safety, utility, or commercial application of the Services and work product.
- 11. Governing Law and Dispute Resolution
11.1 Governing Law: This Agreement shall be governed by and construed in accordance with the laws of the country where the Contractor has its registered office.
11.2 Dispute Resolution: Any dispute arising out of or relating to this Agreement shall be resolved exclusively in the courts of the country where the Contractor has its registered office. Each Party consents to the jurisdiction of such courts.
- 12. General Provisions
12.1 Changes to Terms and Conditions. The Terms and Conditions in effect as of the effective date of the SOW shall govern the SOW. Any subsequent changes, modifications, additions, supplements, suspensions, discontinuations, or deletions to these Terms and Conditions shall not apply to the SOW unless both Parties agree to such changes in writing. If any changes to the Terms and Conditions are necessary, they must be documented and signed by authorized representatives of both Parties to be enforceable.
12.2 Force Majeure: Neither Party shall be liable for any failure or delay in performing its obligations under this Agreement if such failure or delay is due to causes beyond its reasonable control, including but not limited to acts of God, war, terrorism, strikes, or governmental orders. The affected Party shall promptly notify the other Party of the occurrence of such an event and shall use reasonable efforts to mitigate the impact of the event.
12.3. Publicity: Unless otherwise agreed in writing, Client grants Contractor a worldwide, royalty-free, non-exclusive, revocable license to use, copy, and publicly display any information about Client, including Client's logo, business name, and publicly available intellectual property, for the purpose of enhancing Contractor's portfolio. This includes adding such information to Contractor's website, informational resources, marketing materials, promotional activities, press releases and social media accounts as case studies or other descriptive formats.
12.4 Entire Agreement: This Agreement, together with all executed SOWs, constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior agreements, understandings, negotiations, and discussions.
12.5 Severability: If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions shall continue in full force and effect.
12.6 Assignment: Neither Party may assign its rights or obligations under this Agreement without the prior written consent of the other Party, except that either Party may assign this Agreement to an affiliate or successor entity without such consent.
12.7 Relationship of Parties. The Parties agree and acknowledge that the relationship between them is that of principal and independent contractor and not a partnership, joint venture or an employer and employee relationship.
12.8 Headings. The section headings in this Agreement are used exclusively for convenience and shall not affect the interpretation of this Agreement.
12.9 Negotiation of Additional Conditions. The SOW may contain additional provisions regarding the Services, which will supplement and/or supersede any conflicting terms in this Agreement. The Client may enter into a separate agreement with the Contractor on other conditions that are not covered by this Agreement.