Services.

Stargue, N.V. (“Stargue”) will perform services (the “Services”) and provide the deliverables (the “Deliverables”) as specified in an attached engagement letter between Stargue and Client (the “Engagement Letter”), and in accordance with these Terms and Conditions.  Stargue’s performance of Services may include advice, recommendations, or other deliverables.  All decisions relating to the implementation of such advice and recommendations shall be made by and are the sole responsibility of the Client.  These Terms and Conditions form an integral part of the Engagement Letter and will govern the performance of the Services.

Fees and Invoices.

a)         Billing.

Client shall pay, based on the total estimated or fixed fee the following percent of such total upon executing the Engagement Letter: up to US$500,000: twenty percent (20%); US$500,000 to US$2 million: fifteen percent (15%); and, more than US$2 million: ten percent (10%).  In addition, anticipated non-routine significant out-of-pocket expenses or procurement fees shall be paid upon execution of the Engagement Letter.  Progress invoices shall be issued every two (2) weeks with any credit balance to be applied to the final invoice or refunded, as the case may be.  Invoices shall be sent to Client at the address set forth in the Engagement Letter.

b)         Payment.

Invoices shall be issued, and payment shall be made, in Antillean Guilders (ANG) or United States Dollars (USD).  If any portion of the invoice is to be paid in local currency, the amount of fees, expenses and other charges to be paid by Client in local currency shall be calculated using the official exchange rate in force on the date of payment.  Invoices not paid within thirty (30) days will be considered delinquent.
Any discount off of Stargue’s standard rates shall not apply to such delinquent invoices and the delinquent portion of the invoice will be subject to a late charge equal to the lesser of one and one half percent (1½%) per month or the maximum amount allowed by law.  Client shall provide written notice of any dispute with an invoice within twenty (20) days, and pay the undisputed portion of such invoice.  Without limiting its rights or remedies, Stargue reserves the right to suspend or terminate its services for failure to make timely payment.

c)         Taxes, Tariffs, and Duties.

All fees, expenses and other charges for the Services do not include any sales, use, excise, value added or other applicable taxes, tariffs or duties, payment that may be due on such amounts and shall be the sole responsibility of Client (excluding any applicable taxes based on Stargue's net income or taxes arising from the employment or independent contractor relationship between Stargue and its personnel).  In the event that such taxes, tariffs or duties are assessed against Stargue, Client shall reimburse Stargue for any such amounts paid by Stargue or, prior to payment, provide Stargue with valid tax exemption certificates with respect thereto.  If Client is required by law to make any tax deduction, withholding or payment from any amount paid or payable by Client to Stargue under this Agreement, the amount paid or payable to Stargue shall be grossed -up to the extent necessary to ensure that Stargue receives and retains, free of liability, a net amount equal to the amount that Stargue would have received and retained had no tax deduction or withholding been made.  The Client warrants that Stargue, its personnel and subcontractors shall be exempt from any taxes, duties, fees, levies and other impositions levied on Stargue, its personnel and subcontractors, if any, in respect of:
(a)        any equipment, materials, supplies brought into the country where Services are rendered (the “Country”) by Stargue, its personnel and/or subcontractors for the purpose of carrying out the Services and which, after having been brought in such Country, will be subsequently withdrawn there from by them;
(b)        any equipment imported for the purpose of carrying out the Services and/or Deliverables and which, upon payment by Client, is treated as property of the Client;
(c)        any property brought into the Country by Stargue, any of its subcontractors and personnel (other than nationals or permanent residents of the Country) for their and/or for their family’s personal use and which will be subsequently withdrawn there from by them upon their departure from the Country.  Any such taxes, duties, fees, levies and other impositions described above that Stargue, its personnel and subcontractors may be legally required to pay shall be invoiced to Client as out-of–pocket expenses.

Changes in Scope of Work.

Stargue will inform Client of the effect on fees and/or the Schedule that will result from Client requested changes that affect the scope or duration of the Services or nature of the Deliverables.  Stargue shall not be bound by any change requested by Client until such change has been accepted in writing by Stargue.  If the Services are being performed at a fixed price the additional Services resulting from such change will be billed on a time and materials basis at Stargue’s standard rates.

Termination.

Either party may terminate the Engagement Letter on thirty (30) days written notice of a material breach which remains uncured at the end of such thirty (30) day period.

Ownership.

a)         Ownership of Deliverables.

Subject to these Terms and Conditions, upon full payment for each accepted Deliverable, such Deliverable will become the property of Client.  To the extent that any Stargue Information, as defined below, is incorporated into such Deliverables, Stargue will grant Client, upon full payment for such accepted Deliverable, a royalty-free paid -up, perpetual, worldwide, non-exclusive license to use such Stargue Information as part of the Deliverables.

b)         Stargue Information.

Client acknowledges that Stargue provides consulting services to other Clients and agrees that nothing hereunder shall be deemed or construed to prevent Stargue from carrying on such business.  In particular, Client agrees that, notwithstanding anything to the contrary set forth herein:
(i) Stargue shall have the right to retain a copy of each of the Deliverables for its records;
(ii) as part of Stargue’s provision of the Services hereunder, Stargue may utilize proprietary works of authorship, pre-existing or otherwise, that have not been created specifically for Client, including without limitation software, methodologies, templates, flowcharts, architecture designs, tools, specifications, drawings, sketches, models, samples, records and documentation, as well as copyrights, trademarks, service marks, ideas, concepts, know-how, techniques, knowledge or data, and any derivatives thereof, which have been originated, developed or purchased by Stargue or by third parties under contract to Stargue (all of the fore going, collectively, “Stargue’s Information”);
(iii) Stargue’s Information and Stargue’s administrative communications, records, files and working papers relating to the Services shall remain the sole and exclusive property of Stargue and
(iv) Client hereby grants to Stargue a perpetual, royalty free, irrevocable, worldwide, nonexclusive license to use the Deliverables and to create and use derivative works derived from the Deliverables, so long as in doing so Stargue does not disclose Client’s identity or Confidential Information.

Acceptance.

When Stargue has completed any separate Deliverables, Client, with Stargue's cooperation and assistance, may conduct acceptance tests to verify whether the Deliverable substantially conform to the applicable Specifications.  Client shall have fifteen (15) days after completion, or such other period as may be mutually agreed upon, (the “Acceptance Period”) to test the Deliverable.  If Client notifies Stargue of any material non-conformities with the Specifications in any of the Deliverable (collectively "Non-conformities") in writing within the applicable Acceptance Period, Stargue promptly shall use reasonable efforts to correct such Non-conformities at its own expense and notify Client when the corrections are complete.  Client then shall have the right to test the corrected Deliverable.  If Client does not notify Stargue of any material Non-conformities within the Acceptance Period or if Client uses the Deliverables in a production environment or otherwise in connection with Client’s conduct of its business, Client shall be deemed to have accepted the Deliverables.  Should Stargue fail to correct a Nonconformity within thirty (30) days, or other agreed time, of receiving written notice of it, Client may terminate the Services.  Stargue’s maximum liability to Client for failing to correct such Nonconformity shall be to refund the fees and expense paid by Client to Stargue for the Deliverable or portion of the Deliverable that is nonconforming.

Liabilities and Remedies for Infringement.

a)         Stargue hereby agrees to indemnify, hold harmless and defend Client from and against any and all claims, liabilities, losses, expenses (including reasonable attorneys' fees), fines, penalties, taxes or damages (collectively, "Liabilities") asserted against Client by a third party to the extent such Liabilities result from the infringement of the Deliverables upon any third party's trade secret, trademark, copyright or patent issued as of the date of this Agreement; provided, that Client
(i) promptly notifies Stargue of any third party claim subject to indemnification hereunder,
(ii) gives Stargue the right to control and direct the preparation, defense and settlement of any such claim, and
(iii) gives full cooperation to Stargue for the defense of same.  The foregoing provisions shall not apply to any infringement arising out of:
(i) use of the Deliverables other than in accordance with applicable documentation or instructions supplied by Stargue or for other than Client’s internal purposes;
(ii) any alteration, modification or revision of the Deliverables not expressly authorized in writing by Stargue;
(iii) Client’s failure to use or implement corrections or enhancements to the Deliverables made available by Stargue;
(iv) Client’s distribution, marketing, or use of the Deliverables for the benefit of third parties; or
(v) the combination of the Deliverables with materials not supplied by Stargue.
b)         In case any of the Deliverables or any portion thereof is held, or in Stargue’s reasonable opinion is likely to be held, in any such suit to constitute infringement, Stargue may within a reasonable time, at its option, either:
secure for Client the right to continue the use of such infringing item; or replace, at Stargue's sole expense, such item with a substantially equivalent non-infringing item or modify such item so that it becomes non-infringing.
In the event Stargue is, in Stargue’s reasonable discretion, unable to either procure the right to continued use of the allegedly infringing item or replace the allegedly infringing item as provided in clauses (i) and (ii) of the immediately preceding sentence, the allegedly infringing item shall be returned to Stargue, and Stargue’s maximum liability for such infringement shall be to refund to Client the amount paid to Stargue for such item.
c) In the event that Client provides Stargue with access to software, specifications, content or other Client-provided materials (“Client Materials”), Client hereby agrees to indemnify, hold harmless and defend Stargue from and against any and all Liabilities incurred by or asserted against Stargue in connection with any third party claim to the extent such Liabilities result from the infringement of any third party's trade secret, trademark, copyright or patent rights.

Indemnity.

Client hereby agrees to indemnify, hold harmless and defend Stargue from and against all Liabilities incurred by or asserted against Stargue in connection with any third party claim to the extent such Liabilities result from the use of: (i) the Deliverables other than in accordance with applicable documentation or instructions supplied by Stargue or for other than Client’s internal purposes; (ii) any altered, modified or revised version of the Deliverables that was not expressly authorized in writing by Stargue;
(iii) Client's failure to use or implement corrections or enhancements to the Deliverables made available by Stargue; (iv) Client's distribution, marketing, or use of the Deliverables for the benefit of third parties; or (v) the Deliverables combined with materials not provided by Stargue; provided that Stargue shall (i) promptly notify Client of any third party claim subject to indemnification hereunder, (ii) give Client the right to control and direct the preparation, defense and settlement of any such claim, and (iii) give full cooperation to Client for the defense of same.

Limitation on Warranties.

THIS IS A SERVICES ENGAGEMENT. STARGUE WARRANTS THAT IT WILL PERFORM SERVICES HEREUNDER IN GOOD FAITH. STARGUE DISCLAIMS ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

Limitation on Damages.

In no event shall either party nor their respective employees, officers and directors be liable for consequential, special, indirect, incidental, punitive or exemplary damages, costs, expenses, or losses (including, without limitation, lost profits and opportunity costs).  Client agrees that Stargue, its employees, officers and directors shall not be liable to Client for any actions, damages, claims, liabilities, costs expenses, or losses in any way arising out of or relating to the services performed hereunder for an aggregate amount in excess of the fees paid by Client to Stargue in performing the Services. The provisions of this Paragraph shall apply regardless of the form of action, damage, claim, liability, cost, expense, or loss, whether in contract, statute, tort (including, without limitation, negligence), or otherwise.

Cooperation.

Client shall cooperate with Stargue in its rendering of the Services, including, without limitation, providing Stargue with reasonable facilities and timely access to appropriate data, information and personnel of Client.  Client acknowledges that when Client’s personnel are to work with Stargue's personnel, Client’s failure to assign Client personnel having skills commensurate with their role in connection with the Services could adversely affect Stargue's ability to perform.  To the extent that Client’s failure to assign such personnel, or other failure to perform its obligations interferes with Stargue’s ability to perform, milestone dates, if any, shall be adjusted accordingly and, for fixed fee engagements, additional Services provided by Stargue attributable to such failures by Client shall be billed at Stargue’s standard rates.  Client acknowledges and agrees that Stargue may, in performing its obligations pursuant to this Agreement, be dependent upon and using data, material, and other information furnished by Client without any independent investigation or verification thereof, and that Stargue shall be entitled to rely upon the accuracy and completeness of such information in performing the Services.

Mediation.

If either party is not satisfied with the other party’s performance of its obligations, a written description of the problem shall be provided to the other party and a good faith effort to resolve the problem via non-binding mediation shall be made by both parties prior to proceeding to Arbitration or litigation.

Arbitration.

Any Claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by binding arbitration administered by the International Chamber of Commerce (“ICC”) in accordance with its Rules of Conciliation and Arbitration.  The language of Arbitration shall be English.  The arbitration shall be heard and determined by a panel of three (3) arbitrators appointed in accordance with the Rules of the ICC, and each such arbitrator shall have experience and familiarity with consulting related disputes.  The arbitration proceeding shall occur in the Netherlands Antilles, each party shall bear its own costs relating to such arbitration, and the parties shall equally share the arbitrators’ fees, and the arbitration and all related proceedings and discovery shall take place pursuant to a protective order entered by the arbitrators that adequately protects the confidential nature of the parties’ proprietary and confidential information. In no event shall any arbitration award provide a remedy beyond those permitted under this Agreement, and any award providing a remedy beyond those permitted under this Agreement shall not be confirmed, no presumption of validity shall attach, and such award shall be vacated.

Confidentiality.

“Confidential Information” means all documents, software, reports, data, records, forms and other materials Stargue and Client provide to each other in the course of the engagement: (i) that have been marked as confidential; (ii) whose confidential nature has been made known; or (iii) that due to their character and nature, a reasonable person under like circumstances would treat as confidential.  Notwithstanding the foregoing, Confidential Information does not include information which: (i) is already known to the other party at the time of disclosure; (ii) is or becomes publicly known through no wrongful act of the other party; (iii) is independently developed without benefit of the other’s Confidential Information; or (iv) is received by or from a third party without restriction and without a breach of an obligation of confidentiality.  Neither party shall use or disclose to any person, firm or entity any Confidential Information without the other’s express, prior written permission.  Notwithstanding the foregoing, Confidential Information may be disclosed to the extent required by law or court order, provided that the party owning such Confidential Information is given reasonable notice and opportunity to seek to prevent or limit its disclosure.  These confidentiality restrictions and obligations shall terminate one (1) year after the expiration or termination of the engagement.

Non-Circumvention and Non-Compete.

Client shall not, without the prior written consent of Stargue, which consent Stargue may withhold in its sole discretion, (a) utilize any Confidential Information, including Stargue’s Information used in the performance of Services in course of the engagement with Client, to circumvent or compete with Stargue on the specific or similar Business Opportunities pursued during the engagement, or (b) utilize information lawfully furnished or disclosed to Client by a non-party to the engagement without any obligation of confidentiality and through no wrongful act of the receiving party, or information independently developed by Client relative to the engagement, to circumvent or compete with Stargue on the specific or similar Business Opportunities pursued during the engagement.  These restrictions and obligations shall terminate one (1) year after the expiration or termination of the engagement.

Limitation on Actions.

No action, regardless of form, arising under or relating to this engagement, may be brought by either party more than one year after the cause of action has accrued, except that an action for non-payment may be brought by a party not later than one year following the date of the last payment due to such party hereunder.

Independent Contractor.

It is understood and agreed that each of the parties hereto is an independent contractor and that neither party is, nor shall be considered to be, an agent, distributor, fiduciary or representative of the other.  Neither party shall act or represent itself, directly or by implication, as an agent of the other or in any manner assume or create any obligation on behalf of, or in the name of, the other.

Force Majeure.

Neither party shall be required to perform any term, covenant, or condition of this Agreement so long as such performance is delayed or prevented by force majeure, which shall mean any acts of God, wars, governmental laws, orders, requirements or actions, enemy or hostile governmental actions, strikes, labor or employment difficulties, civil commotions, fires, floods, accidents or breakdowns, or any other casualties or conditions which are beyond the reasonable control of either party and not due to the fault or negligence of such party. If, as a result of any of these conditions, either party fails to perform any obligations specified in this Agreement and gives written notice of same to the other party within ten (10) days of their occurrence, then such failure shall not be deemed a breach or default; and the applicable time periods in which to perform shall be extended, but only to the extent and for the period such condition exists.

Non-Solicitation of Employees.

Neither party shall, during the term of this Agreement and for one (1) year after its termination, solicit for hire as an employee, consultant or otherwise any of the other party's personnel who have had direct involvement with the Services, without such other party's express written consent.

Press Releases and Client List Reference.

Neither party shall issue any press release concerning Stargue’s work without the other’s consent.
Stargue may identify Client as a Client of Stargue and generally describe the nature of the Services in promotional material.

Survival.

The provisions of Paragraphs 5, 6, 7, 8, 9, 10, 13, 14, 15, 19, 20, 23, 24, and 25 hereof shall survive the expiration or termination of this engagement.

Travelers’ Bill of Rights.

Client acknowledges that Stargue has implemented a Bill of Rights that seeks to provide its personnel with the ability to have a quality life of the workplace and to diminish the high toll that traveling can effect on its personnel.  To that end, the Bill of Rights limits the amount of time Stargue’s personnel spend on out of town travel, and there may be occasions where such limits impact the weekly schedules of a particular engagement.

Assignment.

Neither party may assign, transfer or delegate any of the rights or obligations hereunder without the prior written consent of the other party, except that Stargue may assign its rights and obligations hereunder to any person or entity that (i) controls, (ii) is controlled by, or (ii) is under common control with Stargue and/or to any successor in interest to all or substantially all of the assets or business of Stargue, without the consent of Client.
Stargue shall have the right at any time and without prior consent or approval of Client to subcontract all or part of the Services and/or Deliverables to be provided under the Engagement Letter.

Severability.

In the event that any term or provision of this Agreement shall be held to be invalid, void or unenforceable, then the remainder of this Agreement shall not be affected, impaired or invalidated, and each such term and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law.

Entire Agreement & Governing Law.

These Terms and Conditions and the Engagement Letter, including Exhibits thereto, constitute the entire agreement between Stargue and Client with respect to the subject matter hereof and supersede all other oral and written representation, understandings or agreements relating to the subject matter hereof.  This Agreement between the parties shall be governed and construed under the laws of the Netherlands Antilles without any application of conflicts of law rules.

Governing Language.

The governing language for this Agreement shall be English, regardless of whether there is any current or future translation of this Agreement.

 

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