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terms

1. Validity and Scope

1.1 As a client (hereinafter referred to as the Client), who seeks to utilize the skill and expertise of XpertScientific (hereinafter referred to as the Consultant), you agree to be bound by the following general terms and conditions. Any additional terms and conditions agreed to by the Client in writing, either as part of the proforma invoice (hereinafter referred to as the Quote) or as a separate consulting agreement (hereinafter the terms specified in the Quote and any separate agreement shall collectively be referred to as the Agreement), shall become part of these terms and conditions and specific terms.

2. Deliverables

2.1. The Consultant shall deliver the Deliverables specified in the Quote to the Client.

2.2. The Client will ensure that the Consultant is provided in good time with all information in its possession needed to enable the Consultant to deliver the Deliverables and the Consultant will be entitled to rely on that information.

2.3. The Client must promptly, following receipt of a written request from the Consultant to do so, provide written feedback to the Consultant concerning the Consultant's proposals, plans, designs and/or preparatory materials relating to the Deliverables and made available to the Client with that written request.

2.4. The Consultant shall use reasonable endeavours to ensure that the Deliverables are delivered to the Client in accordance with the timetable set out in the Quote. The Consultant shall promptly notify the Client of any delays.

2.5. The Consultant will exercise reasonable skill, care and diligence in the performance of the services in accordance with the standards of the Consultant's profession.

2.6. The Consultant cannot be held liable for any failure or delay in delivering a Deliverable if such a failure or delay is a direct or indirect result of
  a) inadequacies in the scientific design or approach proposed by the Client;
  b) failure by the Client to provide access to services or materials necessary to complete the work as specified in the Quote, including, without limitation, access to computing clusters, servers, shared drives, data sets; or
  c) inadequacies, faults, omissions or errors in the scientific materials supplied by the Client to the Consultant including, without limitation, data sets, code, scripts, graphs, tables, equations, formulas, and methods.

3. Compensation

3.1. The total fee payable by the Client to the Consultant is set out in the Quote. The Client shall pay this fee in separate instalments in accordance with the payment schedule set out in the Quote.

3.2. The Client must make all payments by bank transfer to the Consultant’s bank account as specified in the Quote. All bank transfers must be received in Euros and in full with possible currency conversion or bank transfer charges at the expense of the Client.

3.3. If the Client does not pay any amount properly due to the Consultant under this Agreement, in accordance with national and European legislation, the Consultant may charge the Client a late payment service fee of €40.00 or 10% of the amount due (whichever is greater), plus interest on the overdue amount at the rate of 8% per annum above the European Central Bank's main refinancing rate (which interest will accrue and be compounded daily until the date of actual payment).

3.4. If the Client requires any additional services or any change to the agreed Services, the Consultant will be entitled to an adjustment of the fees in accordance with the hourly fee set out in the quote and an estimate of the additional fees which may be due will be provided to the Client upon request.

3.5. Unless a flat fee has been agreed, expenses incurred for fulfilling these services, e.g., telephone, faxing, etc. will be reimbursed at cost upon the Consultant providing supporting documentation.

3.6. The fee for services rendered shall not exceed the hourly rate set out in the Quote. In the event that the Consultant shall employ the services of third parties any and all expenses, costs or liability for said employment or services shall be borne exclusively by the Consultant unless the Consultant has requested and received approval and authorization of the Client prior to such hiring or employment.

3.7. The Client shall have no liability for the cost of purchase of equipment, services and/or supplies unless the Consultant has requested and received the approval and authorization of the Client prior to such purchase.

3.8. Unless a flat fee has been agreed, the Consultant shall submit at least two itemized statements setting forth the time spent on each work package, services rendered, and expenses incurred. The first statement will be submitted halfway through the contract period and the second statement upon termination of the contract.

3.9. The parties agree that the Consultant will act as an independent contractor in the performance of its duties under this contract and not as an employee of the Client. The Consultant shall be solely responsible for all social security and income tax remittances.

4. Intellectual Property

4.1. All products and results of the Consultant’s services rendered hereunder (the "Work") are works made for hire. The Consultant acknowledges and agrees that the Work (and all rights therein, including, without limitation, copyrights) belongs to and shall be the sole and exclusive property of the Client.

4.2. The Consultant may invent new, original, and ornamental or useful inventions in the course of or related to the Consultant’s business relationship with the Client ("the Inventions"). The Consultant hereby assigns and/or transfers to the Client, its successors or assigns, the entire right, title, and interest in and to said Inventions, and any patent and patent applications deriving there from for any such invention.

4.3. Notwithstanding the above, the Consultant shall not assign and/or transfer any invention for which no confidential information of the Client was used, incorporated, or relied upon unless the invention results from any work performed by the Consultant for the Client.

5. Limitation of Liability

5.1. Nothing in these Terms and Conditions will limit or exclude any liability resulting from negligence, fraud or fraudulent misrepresentation, or limit any liabilities in any way that is not permitted under applicable law, or exclude any liabilities that may not be excluded under applicable law.

5.2. Notwithstanding the above, in no event will the Consultant be liable for any claims by the Client or any third party for any special, indirect, incidental, or consequential damages of whatsoever kind and howsoever arising, including, without limitation, breach of copyright or patent rights, whether or not the possibility of such damages has been disclosed to the Consultant in advance or could have been reasonably foreseen by the Consultant.

5.3. Due to the nature of scientific work, the Consultant cannot be held liable for the scientific outcome of the work. The Client’s sole and exclusive remedy for any claims against the Consultant with respect to the quality of work will be for the Consultant to
  a) re-perform the applicable work until there is no material defect or deficiency of which the Consultant was notified by the Client within fourteen (14) days of the completion of that portion of work (and in the absence of such notice, any portion of work will be deemed to be satisfactory to and accepted by the Client), or
  b) if such re-performance is not commercially feasible in the Consultant’s opinion, to refund to the Client a pro rata amount of the fees, excluding, for greater certainty, the expenses, attributable to such the applicable work.

5.4. The Consultant’s liability for any and all claims for direct damages will not, in any event, in aggregate exceed the fees (excluding, for greater certainty, the expenses) actually paid to the Consultant under this agreement in the preceding six (6) month period and the Consultant’s liability for all claims arising out of this agreement shall absolutely cease to exist after a period of six (6) months from the date of substantial performance of work, and following the expiration of such period, the Client will have no claim whatsoever against the Consultant. This limitation of liability shall not apply in the event of the Consultant's negligent breach of confidentiality.

6. Termination

6.1. The Consultant may terminate the Agreement at any time by giving notice to the Client if the Client commits a material breach of the Agreement which is not remedied within 14 days. Failure to pay fees and expenses on the due date will constitute a material breach. Notwithstanding the above, failure by the Client to pay the first instalment prior to the agreed start date of the Work will delay the agreed start date until such payment has been received by the Consultant.

6.2. The Client may terminate the Agreement by notice to the Consultant at any time with or without cause.

6.3. Upon termination, the Client will pay the Consultant all fees for work already carried out and expenses actually incurred and due up to the termination date.

6.4. Termination will not prejudice the accrued rights and liabilities of the parties.

7. Confidentiality

7.1. Each party agrees to protect the other party’s trade secrets, financial information (including, without limitation, costs, pricing, profit or margin information) employees’ information (including, without limitation, identity, skills and remuneration), inventions, know-how, formulas, code, specifications, research, data sets, and any other information that should reasonably be understood to be confidential or proprietary (“Confidential Information”) except to its employees, consultants and representatives who require Confidential Information in connection with the performance of its obligations under this Agreement.

7.2. Notwithstanding the above, either party may disclose the other party’s Confidential Information to the extent and to the persons or entities required under applicable governmental law, rule, regulation or order provided that either party (a) first gives prompt written notice of such disclosure requirement so as to enable the other party to seek any limitations on or exemptions from such disclosure requirement and (b) reasonably cooperates at the other party’s request in any such efforts.

8. General

8.1. No breach of any provision of this Agreement shall be waived except with the express written consent of the party not in breach.

8.2. If any provision of this Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions of this Agreement will continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant provision will be deemed to be deleted).

8.3. This Agreement may not be varied except by a written document signed by or on behalf of each of the parties.

9. Trademark and Copyright Notice

9.1. The XpertScientific logo is a registered trademark, indicated by the ® symbol. Its reproduction or use in all its forms and variations are subject to copyright. All additional content on the XpertScientific website (text, artwork and associated imagery) are copyright material of XpertScientific and their use is protected by law. All rights are reserved, including the right to reproduce the logo or web site material in any form whatsoever, including by photocopying, scanning, audiotape, videotape or electronically.

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10. Governing Law & Jurisdiction

10.1. This Agreement shall be governed by and construed in accordance with the laws of Spain, without giving effect to any choice of law or conflict of law provisions. The parties consent to the exclusive jurisdiction and venue in the courts of the city of Barcelona, Spain.