Allyn International Services, Inc. Consulting Services General Terms and Conditions
1. Scope of the General Terms and Conditions
The following General Terms and Conditions (T&C) shall apply to all current and future consulting service contracts except 3PL services between the Client (hereinafter "Client") and Allyn International Services, Inc. (hereinafter "Allyn"). Exceptions to the general T&C, in particular, also T&C laid down by the Client shall only apply if they have been expressly agreed to and confirmed in writing by Allyn.
All consulting service contracts and other agreements are only binding if confirmed by both parties and duly signed; they are mutually binding only to the extent set forth in the written contractual agreement.
2. Scope and realization of the service contract
The scope of service is determined according to the written contract, addendums and a listing of applicable contract specifications. Changes to the scope of consulting services require a written agreement between the client and Allyn. Dates of service completion are only provided as approximation and will not be binding unless expressly marked so in writing.
Allyn has the right to select employees assigned to the respective project by itself. Allyn reserves the right to decide whether Services will be provided at Client’s site or at other locations. Although employees of Allyn might provide Services at Client’s site, the management and direction for all on sites is an Allyn responsibility. Allyn may contract with other external service providers unless in performance of the contract unless contractually prohibited by service contract.
If increased costs are caused by the Client's failure to timely meet its duty to co-operate, Client shall reimburse Allyn for all incremental costs. The time for performance, where agreed, shall be extended by additional time required for the resumption of performance after elimination of such obstruction. Allyn is not responsible for delays or lack of performance due to Acts of God.
3. Duty of disclosure by the client
It is the responsibility of the client to ensure that all documents and information needed for the performance and completion of the contract are made available to Allyn on a timely basis without having to be specifically requested, and that Allyn be informed of all occurrences and circumstances that are of significance to the implementation of the contract.
4. Intellectual Property and Copyrights
Allyn retains copyright and all intangible property rights with respect of Allyn software used in the performance of services. Allyn also retains copyright to other software and intangibles developed
within the scope of services provided by Allyn, unless otherwise documented.
5. Limitation of liability
Allyn hereby represents and warrants to Client that it has insurance policies in place as required by law.
At client sites where Allyn has a significant presence, Client shall maintain general liability insurance coverage which includes Allyn as an additional insured, and shall furnish to Allyn a Certificate of Insurance from its insurance carrier(s) certifying that insurance coverage is in effect and will not be canceled or materially changed without Allyn’s written consent.
Allyn will endeavor to ensure that all transactions are reviewed per the requirements and
specifications of Client. Client is responsible for the accuracy and timeliness of all data and is liable for all taxes, interest, penalties and other fees as may be assessed by the government for non-compliance, omissions, errors and audits.
ALLYN DISCLAIMS ANY AND ALL EXPRESS OR IMPLIED WARRANTIES IN CONNECTION WITH ITS SERVICES AND SHALL HAVE NO LIABILITY IN CONNECTION WITH ANY SUCH CLAIM. FURTHER, IN RESPECT OF THE NATURE OF THE SERVICES, THE CONSIDERATION AND PRICES CHARGED, AND THE OTHER TERMS AND CONDITIONS OF THE CONTRACT, ALL OF WHICH HAVE BEEN NEGOTIATED AND AGREED WITH THESE LIMITATIONS IN MIND, NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT, CLIENT ACKNOWLEDGES AND AGREES THAT ALLYN SHALL NOT BE LIABLE FOR ANY CLAIMS, LOSSES, OR DAMAGES OF ANY KIND, EXCEPT TO THE EXTENT DIRECTLY CAUSED BY ALLYN’S SOLE GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT. CLIENT'S SOLE AND EXCLUSIVE REMEDY FOR ANY BREACH, NEGLIGENCE, OR OTHER LEGAL FAULT OF OR CLAIMS, LOSSES, OR DAMAGES CAUSED BY ALLYN, OTHER THAN TO THE EXTENT DIRECTLY CAUSED BY ALLYN’S SOLE GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT, SHALL BE TO TERMINATE THIS AGREEMENT. WITHOUT LIMITING THE FORGOING AND EVEN IN THE EVENT ALLYN MAY BE LIABLE UNDER THE IMMEDIATELY PRECEDING SENTENCE OR THE OTHER TERMS AND CONDITIONS, ALLYN SHALL IN NO CASE BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO DAMAGES FOR LOST REVENUE, LOST PROFITS, BUSINESS INTERRUPTION, LOST INFORMATION OR DATA, COMPUTER INTERRUPTION AND THE LIKE) OR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES ARISING FROM OR RELATED TO THE USE OF ALLYN’S SERVICES.
Client shall take all necessary precautions to prevent the occurrence of any injury to persons or to property during the performance of work and ensure that Client and its personnel neither pose a threat to Allyn’s safe work environment nor the integrity of its business operations. Except to the extent that any injury or damage is directly due to Allyn's sole gross negligence or intentional misconduct, client shall release, defend, hold harmless and indemnify Allyn, its directors, officers, employees, agents, representatives, successors and assigns, whether acting in the course of their employment or otherwise, against any and all suits, actions or proceedings, at law or in equity, and from any and all claims, demands, losses, judgments, damages, costs, expenses or liabilities, including without limitation claims for personal or property damage, resulting from or in any way connected any act or omission of Client’s personnel, Client its agents, employees or subcontractors in connection with, but not limited to, all of the representations, warranties or covenants contained in this Agreement. In addition, client shall indemnify, defend and hold Allyn harmless from and against any claims, costs or expenses, including, but no limited to, reasonable attorney’s fees, arising out of or in connection with any employment claims. Client agrees to include clause in all related subcontracts.
6. Confidentiality and data protection
All techniques, designs, drawings, processes, inventions, equipment, proposals, specifications, and such information concerning the products, services or equipment disclosed by either Allyn or Client shall be held confidential and shall not be disclosed by either party without prior written consent except as otherwise required for performance of the services.
7. Fees and payment
The fee and expense reimbursement shall be agreed upon by the Client and Allyn per service contract. Payment terms are net 30 days unless otherwise agreed upon in service contract. If implementation of the contract is prevented by the client after the contract has been signed (for ex. due to cancellation), the business consultant is nonetheless entitled to payment for the stipulated scope of consultation services. If the execution of the contract does not occur due to circumstances which are substantially caused by Allyn, then Allyn shall only be entitled to receive the part of the fee which corresponds to those services already performed. This particularly applies if, despite cancellation, Allyn‘s services up to that point are usable by the client. Apart from apparent deficiencies, any complaint about Allyn‘s services does not justify the retention of fees owed to Allyn.
If the Client is delinquent on a due payment, Allyn reserves the right to rescind the contract effective immediately and assert a claim for damages.
Pricing is not inclusive of any applicable VAT or state and local sales and use taxes or withholding taxes or any other taxes or fees. These will be billed in addition as applicable. Pricing is not inclusive of any bank fees. Each party is responsible for their own bank fees.
8. Governing law and jurisdiction
Unless and except as these T&C contain provisions to the contrary, the laws of the State of Florida shall govern these Conditions. By accepting the services provided under these conditions, the Client irrevocably agrees to the exclusive jurisdiction of the courts of the said state in and for Lee County, Florida and submits to the personal jurisdiction of said courts.
9. Force Majeure
Each party shall be excused from performance under the Agreement to the extent that such party is prevented from performing, in whole or in part, by delays caused by an act of God, war, civil disturbance, labor dispute, or other cause beyond its reasonable control. The non-performing party shall promptly give notice of its non-performance to the other party. The non-performing party shall make all commercially reasonable efforts to remove such cause of nonperformance. All other obligations not affected by such cause of nonperformance shall be in full force and effect during the period of time that the affected obligation is suspended during the continuance of such cause of non-performance.
10. Termination
In the event the Client terminates the Contract (aka Agreement or SOW) with Allyn prior to the Contract expiration date, the Client shall pay Allyn an early termination fee equal to the lesser of 180 days of the accrued total fees or the remaining fees due to Allyn from the Client through the end of the Contract period.
11. Non-Solicitation
Non-Solicitation: During the term of Contract (aka Agreement or SOW) and for the twelve (12) month period following its expiration or termination, neither party shall directly or indirectly intentionally solicit, offer employment, employ or retain any employee or former employee of the other without the prior written consent of such other party. In the event the Client violates this clause, the Client will pay a penalty equal to three times the total amount of the current monthly service fees paid by the Client to Allyn. This penalty will be paid by the Client to Allyn within 30 days of retaining Allyn’s employee or former employee.
(Allyn T&C 2025 v2.1)