2. Cooperation between the parties to the contract
2.1 PH shall receive from the client all the documents, information, and data necessary to deliver the agreed services in the form as requested by PH. As far as PH creates or adapts designs or provides design services for the client under this Contract, the client shall provide to PH a complete requirements specification as well as all the required test data in the form that PH requests. The user requirements specification shall become binding as soon as PH consents to it in writing. Upon request, PH shall provide support to the client in drawing up the user requirements specification against separate compensation.
2.2 The client shall use its best efforts to support PH in delivering the services and take all the measures required to attain the project goals which do not expressly fall under the obligations of PH. The client shall keep additional copies of all data handed over to PH on its own premises to ensure that restoration will be possible in case the data is damaged or lost. Support as well as services and products to be supplied by the client shall be provided at no cost to PH.
2.3 Each party shall name to the other party an appropriately qualified employee who shall be capable of providing relevant information required for the Contract to be executed and of either taking or initiating any necessary decisions.
3. Service delivery
3.1 The schedule and the detailed services shall be defined in the Contract. Unless otherwise agreed upon, PH shall deliver the services on its own premises. As far as PH performs activities on the client’s premises, the client shall provide adequately equipped workplace(s).
3.2 In delivering the services, PH shall have the right to use third parties or other companies from within the GDS Alliance Group. Unless otherwise agreed upon, the delivery of training services by PH shall not be included in the Contract.
4. Changes in deadlines and scope of services
4.1 The scheduled deadlines agreed upon in the Contract shall be extended appropriately if PH is prevented from delivering the agreed services for reasons for which PH is not responsible. Reasons for which PH is not responsible shall, without limitation, include any delays or substandard products/services/support supplied by the client, also mobilization of troops, war, insurrection, natural disasters, changes in laws after the conclusion of the Contract, strikes or lockouts (“force majeure”). Any additional expenses arising to PH from such events shall be borne by the client.
4.2 Changes in the scope of services in terms of quality and/or quantity (change requests), especially changes in the client requirements specification or the accepted specifications, shall be subject to written agreement, with the related deadlines and compensations having to be adjusted accordingly. Unless otherwise agreed upon, PH shall provide extra services only against applicable payment to be agreed in advance in writing.
5. Remuneration and retention of title
5.1 Unless otherwise agreed upon, PH shall calculate the amounts payable in compensation on the basis of hourly rates specified in the Contract. The amounts payable shall be charged at the end of each month on the basis of the reports on services delivered submitted by PH. As far as PH provides services at fixed prices (fixed or all-in prices), PH shall be entitled to request an advance payment of at least fifty percent (50%) of the fixed price (fixed or all-in price); and payment dates shall be agreed in the Contract dependent on the progress of service delivery (“milestones”). Irrespective of the pricing model, PH’ prices shall be always considered net prices exclusive of VAT or any other applicable taxes, which shall be charged separately.
5.2 Service delivery on site at the client’s shall be charged at a half day’s rate at least. The markups generally applicable at PH shall be charged for services delivered outside normal working hours (Sunday to Thursday, 10.00 a.m. to 7.00 p.m.); on Fridays, Saturdays or public holidays as well as on days which are generally non-working days at PH.
5.3 Payment shall be due within ten (8) days from the date of invoice without deductions. If the client defaults in payment, PH shall be entitled to claim interest on arrears as legally applicable. Should the client’s default in payment exceed 14 days, PH shall have the right to cease the delivery of all services without the need of so notifying the client in advance and to make the compensation for all services already provided immediately due and payable notwithstanding any dates fixed for payment.
5.4 Travel time of PH employees shall be considered working time. In addition, the client shall reimburse travel costs at the same rate as they occur. In the case of travel by car, the legally applicable mileage-based flat rate shall be charged. In the case of travel by train, the price for a first-class ticket shall be charged; in the case of travel by airplane, the price for a business class ticket shall be charged. Other ancillary expenses, such as telephone costs, shall be charged as incurred.
5.5 The client shall not have the right to withhold or offset payment on the grounds of any warranty claims or other claims unless approved of in writing by PH or asserted by court order. Until the compensation due to PH has been paid up in full, plus interest and cost, PH shall reserve the title to all goods delivered by PH. Unless otherwise agreed upon, the client shall not have the right to use the products and services delivered by PH until having fully paid up all amounts due to PH.
5.6 All fees, taxes and duties arising under this Contract, such as for instance legal transaction fees, import taxes or withholding taxes, shall be borne by the client. In case PH is charged with any such fees, taxes or duties, the client shall fully indemnify PH against any payments thereof.
6. Rights to results, confidentiality
6.1 Unless otherwise agreed upon, the client receives no rights to the results produced by PH other than those specifically granted in this Section 6. Without limiting the generality of the foregoing, client shall not modify, create derivative works from, distribute, publicly perform, publicly display or sublicense the results.
6.2 As far as the delivery of services by PH includes the delivery of services supplied by third parties, the special terms and conditions (in particular license conditions) of the respective vendor shall prevail.
6.3 Each of the parties to the Contract shall maintain secrecy vis-a-vis third parties concerning all information, documents and data disclosed to them in the context of the Contract and marked as confidential. The obligation to maintain secrecy shall not apply to documents, information and data which are already general state of the art in the public domain at the time they are handed over to the respective other party or later become general state of the art in the public domain without any fault on the part of the receiving party or in respect of which the receiving party can prove that they either (a) were already state of the art at the receiving party’s when they were handed over, or (b) later became state of the art and know-how at the receiving party’s independently of any communication with the other party to the Contract, or (c) were disclosed to the receiving party by third parties, e.g. under a license agreement. The obligation to maintain secrecy shall remain in effect even after the termination of the Contract.
7. Acceptance and warranty
7.1 As far as the design services (shortly called “designs”) are to be created or adapted by PH, such designs shall be submitted to acceptance procedures by the client immediately after they have been made available for acceptance. If defects are identified during acceptance, PH shall remove the defects within a reasonable period of time at no cost to the client and then make the designs available for renewed acceptance. If the client fails to perform acceptance procedures for any reason other than the presence of a major defect that significantly impairs the use of the designs, the designs shall be considered accepted 4 weeks after having been made available for acceptance, but in any case as soon as it is being used or passed on by the client. These provisions shall apply mutatis mutandis to documents, such as detailed specifications or client requirements specifications, to be drawn up by PH under the Contract. After acceptance by the client, such documents shall be regarded as the only basis for service delivery by PH.
7.2 Defects that occur within a warranty period of 1 month (for game designs- six (6) months) after acceptance of the designs are duly given notice of by the client in writing shall be cleared by PH within a reasonable period of time at no cost to the client. Client shall submit all documents, information and data necessary for fault clearance purposes as may be requested by PH.
7.3 As regards design scopes which the client has extended, PH shall provide warranty up to added extention. In all other respects, warranty for designs modified by the client without the prior consent of PH shall be excluded, even if a fault occurs in a non-modified part, unless the client proves that there is no causal relationship between the fault and the modifications made by the client.
7.4 The warranty provisions set forth in Section 7 shall apply mutatis mutandis to deliveries and services provided by PH. However, as far as the delivery of services by PH includes the delivery of services and products supplied by third parties, the special terms and conditions of warranty of the respective vendor shall prevail.
7.5 Any claims for warranty raised by the client exceeding those mentioned in the present General Terms and Conditions shall be excluded, irrespective on which legal grounds they might be based.
8.1 To the extent permitted by mandatory law, PH shall in no case be liable for indirect damage, loss of information or data, operating interrupts, loss of earnings and other consequential damages.
8.2 Any warranty and damage claims from the client other than those expressly mentioned in these General Terms and Conditions, irrespective of the legal grounds they might be based on, in particular those due to loss or damage resulting from consulting, support in the implementation of design products, or software product defects, shall be excluded unless there is an obligatory liability, as for instance for damage caused intentionally or by gross negligence proved by the client.
9. Place of jurisdiction, applicable law
9.1 All disputes arising out from a Contract, including or related to it, including those arising from or concerning its interpretation, invalidity, performance or termination, as well as the disputes for filling gaps in a Contract or its adaptation to newly established facts, shall be settled by an amicable effort of both parties. If an attempt at settlement has failed, the dispute shall be finally referred for resolution to the International Court of Arbitration at the Legal Interaction Alliance in compliance with its Rules for Litigations, based on arbitration agreements.
9.2 The place of arbitration shall be Dubai, UAE. The procedural law of this seat shall apply where the Rules are silent. The arbitral award shall be substantiated in writing. The arbitral tribunal shall also decide on the matter of costs of the arbitration. The arbitration procedure shall be conducted in the English language.
10. Term of Contract
10.1 PH shall deliver the consulting and design services either for the duration of the project agreed upon with the client or for the duration agreed upon in the Contract. As far as services under this Contract are provided on an ongoing basis, each of the parties to the Contract shall have the right to terminate the Contract in writing by registered mail giving 1-month‘s notice. Any designs not yet accepted at the time the Contract is terminated shall in any case be completed and compensated for under the terms and conditions of the Contract.
10.2 In all other respects the parties to the Contract shall have the right to prematurely terminate, in writing by registered mail, a Contract concluded for an indefinite period of time for good cause. Good cause shall exist, in particular, when the other party’s property and assets are subjected to insolvency proceedings or when the opening of such proceedings is rejected due to a lack of assets, or when the other party to the Contract violates material obligations under the Contract, in particular, payment obligations, so that the terminating party can no longer be reasonably expected to continue the Contract.
11. Concluding clauses
11.1 Collateral agreements and alterations to the Contract need be made in writing in order to be effective.
11.2 PH shall have the right to transfer the Contract with all its rights and obligations to third parties. Client must not transfer rights and obligations under the Contract without PH’ prior written consent.
11.3 If any of the provisions of the Contract is or becomes invalid, this shall not serve to invalidate the remaining provisions thereof. In such cases, the parties shall make every effort to find provisions whose business result would match those of the invalid provision as closely as possible.