The party that submits a completed order request form or inspection request form to Impactiva (hereinafter, “IMPACTIVA”) or signs a quotation issued by IMPACTIVA for its performance of services (“Services”) is the “Client” under these Standard General Service Terms and Conditions. The entity within IMPACTIVA accepting the service request form or inspection request form and issuing the report documenting the results of those Services is “IMPACTIVA” under these Standard General Service Terms and Conditions. IMPACTIVA and CLIENT are, together, the “Parties” and each is a “Party”. A request for Services constitutes a legally binding agreement on both Parties when such a request is accepted by IMPACTIVA (“Contract”) under the following terms and conditions:
IMPACTIVA is a company which offers supply chain optimization on a global basis to companies in the lifestyle industries including but not limited to apparel, footwear, leather goods & accessories, outdoor gear and leather industries.
1. Impactiva obligations
IMPACTIVA accepts the following obligations:
1.1 IMPACTIVA will only act on behalf of CLIENT. No other party is entitled to give IMPACTIVA instructions on how to perform its Service, without prior authorization from CLIENT.
1.2 IMPACTIVA is under no obligation to refer to or report upon any facts or circumstances that are outside the scope of the Contract.
1.3 IMPACTIVA is responsible for:
a) Managing its own employees and / or consultants employed in the execution of the Service;
b) Maintaining sufficient personnel at each Supplier so as to not cause Supplier to fail its shipment deadlines because of IMPACTIVA;
c) The observance of provisions in any laws or regulations that apply to the way the Service is performed.
2. Payment Terms
2.1 Payment of invoices must be executed via SWIFT transfer within a maximum of thirty (30) days from the date of the invoice.
2.2 CLIENT agrees that the full amount of IMPACTIVA’s invoices must arrive at IMPACTIVA’s bank and thus, bank charges emitted by CLIENT’s bank including those of the intermediary banks used by CLIENT’s bank, are to be paid by CLIENT. Remitters (CLIENT’s bank and/or CLIENT’s Supplier’s bank) must use the following instruction in field 71A of the MT103 SWIFT transfer form: “71A: Details of Charges = OUR”.
2.3 CLIENT agrees that IMPACTIVA reserves the right to impose a finance charge for late payment of two per cent (2%), or the highest rate permitted by law, for every month or partial month of delay in settling payment.
2.4 All fees stated herein for services provided by IMPACTIVA pursuant to the Contract are exclusive of taxes. CLIENT shall be responsible for and shall pay any applicable sales, use, excise, withholding or similar taxes, including value added taxes and customs duties that may be due for the provision of the Services under the Contract, excluding any taxes based on IMPACTIVA’s income or for which IMPACTIVA is legally responsible. All payments hereunder will be made free and clear of, and without reduction for, any withholding taxes, and any such taxes imposed on payments of the fees to IMPACTIVA will be CLIENT’s sole responsibility. Upon request by IMPACTIVA, CLIENT will provide IMPACTIVA with official receipts issued by the appropriate taxing authority, or such other evidence as IMPACTIVA may reasonably request, to establish that such taxes have been paid.
2.5 If IMPACTIVA, upon the request of CLIENT, emits its invoices to any CLIENT Supplier (whether partially or 100%), CLIENT guarantees and agrees to be fully responsible for the effective payment of these invoices. CLIENT agrees to fully pay IMPACTIVA for any invoices emitted to any CLIENT Supplier, including late payment charges, which are thirty (30) days or more past due within five (5) working days of IMPACTIVA notifying CLIENT that an invoice is past due.
3. Hiring of employees and consultants
“Hiring any Person of IMPACTIVA” by CLIENT as defined in the following Items a) and b), and related provisions thereafter, is prohibited. However, IMPACTIVA hereby grants CLIENT the option of “Hiring any Person of IMPACTIVA”, subject to the obligations of CLIENT as noted below:
a) Who is under contract (either as an employee or as a consultant under contract) or
b) Has worked for IMPACTIVA (either as an employee or as a consultant under contract) and the non-compete period (as defined in such person’s non-compete agreement with IMPACTIVA) of two years from his/her date of departure from IMPACTIVA has not expired.
CLIENT must make payment of a hiring indemnification of US$500,000 in advance for each and every person hired by CLIENT, directly or indirectly, via any branches, subsidiary companies or controlling entities of CLIENT. “Hiring any Person of IMPACTIVA” as defined in above Items a) and b) also includes the use of services similar to those of IMPACTIVA that are rendered by any company or legal entity where any of the following two conditions apply:
a) Employs or uses as a consultant any person who is under contract or has been under contract (either as an employee or as a consultant) for a period of less than two years from his/her departure from IMPACTIVA or
b) Said person or any close family member is a shareholder of more than 10% of the shares of the company or legal entity providing the service or said person is one of the principal decision makers in said company or legal entity or said person is one of the principal contact persons between said company or legal entity and CLIENT.
If CLIENT fails to make a hiring indemnification of US$500,000 for each person hired under “Hiring any Person of IMPACTIVA” noted above, IMPACTIVA shall have the right to claim against CLIENT for payment of the indemnification of US$500,000 for each and every employee-consultant hired by CLIENT via the following and any legal proceedings available:
a) IMPACTIVA will notify CLIENT that Section 3.1 of the Contract has been breached by sending a Notice to CLIENT, with a copy of the contract which proves that the person in question is still under contract with IMPACTIVA or their two (2) year non-compete clause has not yet expired.
If CLIENT within seven (7) calendar days of receipt of said Notice immediately performs all of the below:
a) Stops the employment of said person (i.e. immediately legally dismisses said person and breaks all contractual agreements / monetary obligations with said person)
b) Stops the use of a service provider who employs said person
c) Sends a Notice to IMPACTIVA of the steps that have been taken to sever all communications and relationship with said person or service provider
then this Section 3.1 will not be considered as having been breached and the award of US$500,000 will not be awarded. This Section 3.1 will continue to be valid for a period of two years after the Termination Date of the Contract.
During the term of the Contract and for a period of two (2) years after the termination of the Contract, CLIENT agrees to refrain from requesting its Suppliers, Factories, agents, representatives or any other intermediary to solicit for employment, contract with, or hire employees or contractors of IMPACTIVA who are under contract with IMPACTIVA.
“Hiring any Person of CLIENT” by IMPACTIVA as defined in the following Items a）and b) and related provisions thereafter, is prohibited. However, CLIENT hereby grants IMPACTIVA the option of “Hiring any Person of CLIENT”, subject to the obligations of IMPACTIVA as noted below:
a) Who is under contract (either as an employee or as a consultant under contract) or
b) Has worked for CLIENT (either as an employee or as a consultant under contract) and the non-compete period as defined in such person’s signed non-compete agreement with CLIENT has yet to expire (limited to a maximum of two years – i.e. CLIENT agrees that if IMPACTIVA hires a person whose last day of providing his/her service as an employee or consultant to CLIENT was more than two years prior to the date the person starts providing its service to IMPACTIVA, regardless of the length of time stated in the non-compete agreement signed between CLIENT and that person, then IMPACTIVA is free to hire said person with zero liability or indemnification required to CLIENT and thus, in this case, Section 3.2 will not have been breached and thus will not apply).
If IMPACTIVA fails to make a hiring indemnification of US$500,000 for each person hired under “Hiring any Person of CLIENT” noted above, CLIENT shall have the right to claim against IMPACTIVA for payment of the indemnification of US$500,000 for each and every employee-consultant hired by IMPACTIVA via the following and any legal proceedings available:
a) CLIENT will notify IMPACTIVA that the Section 3.2 of the Contract has been breached by sending a Notice to IMPACTIVA, with a copy of the contract which proves that the person in question is still under contract with CLIENT or their non-compete clause has not yet expired and the person in question provided his/her last day of work/service to CLIENT less than two years from the date he/she started providing his/her service to IMPACTIVA.
If IMPACTIVA within seven (7) calendar days of receipt of said Notice immediately performs all of the below:
a) Stops the employment of said person (i.e. immediately legally dismisses said person and breaks all contractual agreements / monetary obligations with said person)
b) Sends a Notice to CLIENT of the steps that have been taken to sever all communications and relationship with said person
then this Section 3.2 will not be considered as having been breached and the award of US$500,000 will not be awarded. This Section 3.2 will continue to be valid for a period of two years after the Termination Date of the Contract.
During the term of the Contract and for a period of two (2) years after the termination of the Contract, IMPACTIVA agrees to refrain from requesting any intermediary to solicit for employment, contract with, or hire employees or contractors of CLIENT who are under contract with CLIENT.
4. Rights and termination
4.1 The rights and obligations of the parties contained in the Section of the Contract titled “Hiring of Employees and Consultants” will survive and continue in full force for two years following the termination or expiration of the Contract. The rights and obligations of the parties contained in all the Sections 4 to 16 will survive and continue in full force indefinitely following the termination or expiration of the Contract.
4.2 Notwithstanding any other provision in the Contract, IMPACTIVA may terminate the Contract immediately if two or more invoices are unpaid according to their terms.
5. limitation of liability
5.1 IMPACTIVA is neither an insurer nor a guarantor and disclaims all liability in such capacity. Client’s seeking a guarantee against loss or damage should obtain appropriate insurance.
5.2 IMPACTIVA undertakes to exercise due care and skill in the performance of the Service and accepts responsibility only in cases of proven negligence.
5.3 Nothing in these Conditions shall exclude or limit IMPACTIVA’s liability to the CLIENT for death or personal injury or for fraud or any other matter resulting from IMPACTIVA’s negligence for which it would be illegal to exclude or limit its liability.
5.4 IMPACTIVA shall not be liable for any delayed, partial or total non-performance of the Service arising directly or indirectly from any event outside IMPACTIVA’s control including failure by CLIENT to comply with any of its obligations as stated in the Contract or in these Terms and Conditions.
5.5 IMPACTIVA shall have no liability for:
a) Any loss, damage or expense arising from a failure by CLIENT to comply with any of its obligations herein;
b) Loss of profits, loss of production, loss of business or costs incurred from business interruption, loss of revenue, loss of opportunity, loss of contracts, loss of expectation, loss of use, loss of goodwill or damage to reputation, loss of anticipated savings, cost or expenses incurred in relation to making product recall, cost or expenses incurred in mitigating loss and loss or damage arising from the claims of any third party (including without limitation product liability claims) that may be suffered by the CLIENT;
c) Any indirect or consequential loss or damage of any kind (whether or not falling within the types of loss or damage identified in 5.5 b above).
d) Any actions taken or not taken on the basis of the reports and or any incorrect results / reports arising from unclear, erroneous, incomplete, misleading or false information provided to IMPACTIVA in respect to IMPACTIVA’s audits and consulting services.
5.6 Quality Assurance / Quality Control Services
IMPACTIVA’s liability in respect of any claim for loss, damage or expense of whatsoever nature and howsoever arising, shall be limited to:
a) when IMPACTIVA Fees are based on % of the FOB purchase price and / or a fixed fee per inspected unit to the value of IMPACTIVA’s Fees invoiced to provide Service
b) when IMPACTIVA’s Fees are based on a Man-day fee per technician to the Man-day Fees, and related travel expenses if applicable, invoiced to provide Service
for the units in a specific style-color of a specific line-item in a CLIENT’s or Factory’s purchase order which arrive with Defect(s) and result in a Claim (for emphasis, Defect and Claim as defined in the Definitions Section of the Contract) and that the Claim has been accepted, in writing, as being valid by IMPACTIVA.
5.7 Audit / Consulting Services
IMPACTIVA’s liability in respect of any claim for loss, damage or expense of any nature and howsoever arising shall in no circumstances exceed 10% in aggregate to the fees paid to IMPACTIVA under this Contract during the 12 months prior to the Notice of claim
The deliverables are issued on the basis of information, documents and/or discussions provided by, or on behalf of, CLIENTS and solely for the benefit of CLIENTS who are responsible for acting as they see fit on the basis of such deliverables. Neither IMPACTIVA nor any of its officers, employees, agents or subcontractors shall be liable to CLIENT nor any third party for any actions taken or not taken on the basis of such deliverables nor for any incorrect results arising from unclear, erroneous, incomplete, misleading or false information provided to IMPACTIVA by, or on behalf of, the CLIENT.
5.8 For a Claim (as defined in the Definitions Section of the Contract) to be considered valid, the following three conditions must be fulfilled by CLIENT:
a) IMPACTIVA must be notified by CLIENT of a claim within a maximum of 5 working days from CLIENT’s knowledge of any claim from any of its customers; said notification via email from CLIENT to IMPACTIVA will include pictures demonstrating the Defect found;
b) Upon request by IMPACTIVA, CLIENT must send at least 2 units demonstrating the Defect found to IMPACTIVA’s office;
c) Upon request by IMPACTIVA, CLIENT must make available to IMPACTIVA all the Product with said Defect, so that IMPACTIVA can send someone to inspect all said units one by one if IMPACTIVA deems it necessary.
Failure to follow the above three conditions, will invalidate the claim and exonerate IMPACTIVA from any penalties or penalizations stated in the Contract.
5.9 CLIENT agrees that its Suppliers are the sole responsible party for the replacement cost of the Product (or any penalties associated with additional costs incurred by CLIENT such as but not limited to transport, insurance, duties, warehousing, rework costs, disposing charges, etc.) if said Product were to be received with Defects (including if defects found are Visible Defects) by CLIENT and/or Supplier.
5.10 The parties agree that the Service rendered by IMPACTIVA, only oblige IMPACTIVA to carry out those activities determined within the Contract but this does not in any way represent a guarantee to CLIENT regarding:
a) The quality or the quantity of the Product actually shipped as IMPACTIVA does not control what the CLIENT delivers to the transport company;
b) Any possible damage caused during the transportation, loading and unloading of the Product;
c) Any possible damage arising as a result of the use of the Product;
d) The avoidance of delays in the production or shipment of the Product;
5.11 CLIENT agrees that IMPACTIVA shall be discharged from all liability for all claims for loss, damage or expense unless suit is brought within one year from:
a) The date of performance by IMPACTIVA of the Service which gives rise to the claim; or
b) The date when the Service should have been completed in the event of any alleged non-performance.
5.12 CLIENT can ask IMPACTIVA to emit a credit note for the Fees IMPACTIVA has invoiced the CLIENT for the specific number of units of Product that are considered to be a Defect and result in a claim and such Defects and claim are accepted, in writing, as being a valid Claim by IMPACTIVA.
5.13 In the event of any suspension of payment, arrangement with creditors, bankruptcy, insolvency, receivership or cessation of business by CLIENT, IMPACTIVA shall be entitled to suspend or, at its option, terminate all further Service forthwith and without liability.
5.14 In the event, IMPACTIVA started providing its Service to the CLIENT prior to the Effective Date of the Contract, both parties acknowledge and accept that the liability limitation starts from the first day of Service regardless the Effective Date of the Contract.
The Parties expressly agree that IMPACTIVA will be entitled to assign and transfer its contractual position, including all of its rights, to any subsidiary of IMPACTIVA or any company which acquires IMPACTIVA or IMPACTIVA’s business.
The Parties expressly agree that CLIENT will be entitled to assign and transfer its contractual position, including all of its rights, to any subsidiary of CLIENT or any company which acquires CLIENT or CLIENT’s business.
All Notices shall be in writing and shall be conclu¬sively deemed to have been duly given within four (4) days of a notice sent via international courier (DHL, UPS, FEDEX) to the registered office address stated within the Contract.
Each party shall make an ordinary, good faith effort to ensure that it will ac¬cept or receive Notices that are given in accordance with this Notice Section, and that any person to be given notice actually receives such Notice. A party may change or supplement its registered office address, or designate additional ad¬dresses, for purposes of this Section by giving the other party written Notice of the new address in the manner set forth above.
8. force majeure
No party shall be liable for any failure to perform its obligations in connection with any action described in the Contract, if such failure results from causes beyond its reasonable control including any act of God, riot, war, civil unrest, flood, earthquake, or other cause beyond such party’s reasonable control (including any mechanical, electronic, or communications failure caused by the foregoing, but excluding failure caused by a party’s financial condition or negligence). The affected party should give notice to the other as soon as possible upon becoming aware of any events noted above and take every possible measure to minimize the loss or damage created by the causes noted above.
9. amendments and modifications
9The Contract may not be modified except by a written document signed by CLIENT and IMPACTIVA that expressly states an intention to modify the Contract. No breach of the Contract can be waived except in writing. Waiver of any breach shall not be deemed to be a waiver of any other breach of the same or any other provision of the Contract
10. Entire contract
The Contract and all Annexes or Exhibits hereto constitute the entire contract between the parties with regard to the subject matter hereof and thereof. The Contract supersedes all previous agreements between or among the parties. There are no agreements, representations, or warranties between or among the parties other than those set forth in the Contract.
If any term or provision of the contract is determined to be ilegal, unenforceable, or invalid in whole or in part for any reason, such ilegal, unenforceable, or invald provisions or part thereof shall be stricken from the contract, and such provision shall not affect the legality, enforceability of the remainder of the contract. If any provision or or part thereof of the contract is stricken in accordance with the provisions of this section, then this stricken provision shall be replaced, to the extent possible, with a legal, enforceable, and valid provision that is as similar in tenor to the stricken provision as is legally possible.
12. Further Assurances
The parties shall at their own cost and expense execute and deliver such fur¬ther documents and instruments and shall take such other actions as may be reasonably required or appropriate to carry out the intent and purposes of the Contract.
13. confidential information and intellectual property
13.1 The Parties acknowledge that during the term of the Contract, both Parties may furnish one another with certain confidential information of such Party including, without limitation, operational processes, manuals, templates, forms, financial information, data, customer names, business plans, pricing structures, partner information, trade secrets, know-how, research, services, products, or marketing or other business information, which is either non-public, confidential or proprietary in nature (collectively, “Confidential Information”), the disclosure of any of which Confidential Information to any third parties would be highly detrimental to the interests of the affected party. The Parties further acknowledge and agree that the right to maintain the confidentiality of such information constitutes a proprietary right which the disclosing party is entitled to protect. Accordingly, the Parties covenant and agree that they will not, during the term of the Contract and thereafter, make use of such Confidential Information nor disclose any of such Confidential Information to any person, firm or corporation, including, without limitation, agents, representatives, attorneys, accountants and consultants (collectively, “Representatives”), except for such Confidential Information necessary to carry out each party’s rights and obligations under the Contract. The obligations imposed by this Section 13.1 shall not apply to any information that: (a) is or becomes publicly available through no fault of the receiving party; or (b) is required to be disclosed pursuant to the lawful order of a government agency or by operation of the law or (c) is obtained by the receiving party from a third party without a duty of confidentiality to the disclosing party.
If the receiving party or anyone to whom the disclosing party transmits the Confidential Information in accordance with the Contract becomes legally compelled (as described in clause (b) of the preceding sentence) to disclose any of the Confidential Information, the receiving party will provide the disclosing party with prompt written Notice so that disclosing party may seek a protective order or other appropriate remedy, and if a protective order and/or such remedy is not obtained, or if the disclosing party, in a signed writing, waives compliance with this Section, the receiving party will furnish only that portion of the Confidential Information which is legally required and will exercise its best efforts to obtain reliable assurance that confidential treatment will be accorded the Confidential Information.
13.2 CLIENT acknowledges that no rights to any of IMPACTIVA’s intellectual property are granted to CLIENT under the Contract including but not limited to the copying and duplication for CLIENT’s own use of Impactiva templates, forms and reports. CLIENT shall not use any of IMPACTIVA’s intellectual property without IMPACTIVA’s prior written consent.
13.3 It is specifically understood and agreed that any breach of the provisions of the Section of the Contract titled CONFIDENTIAL INFORMATION AND INTELLECTUAL PROPERTY is likely to result in irreparable injury to the non-breaching party and that the remedy at law alone will be wholly inadequate for such breach. Therefore, in addition to any other remedy it may have, the non-breaching party shall be entitled to seek both temporary and permanent injunctive relief without the necessity of proving actual damages. No failure or delay by the non-breaching party in exercising any right, power or privilege hereunder shall operate as a waiver thereof to preclude any other or future exercise thereof or the exercise of any right, power or privilege hereunder.
All headings in the Contract are for convenience of reference only and shall be ignored for purposes of construing and interpreting the Contract.
15. governing law
Any controversy, claim or dispute of whatever nature arising between the parties, including but not limited to those arising out of or relating to the Contract or the construction, interpretation, performance, breach, termination, enforceability or validity of the Contract, whether such claim existed prior to or arises on or after the date of the Contract, including the determination of the scope of the Contract to arbitrate, shall be determined exclusively in the state and federal courts located in New York, New York.
The Contract, and the substantive law used in any court proceeding, shall be governed by and construed under the laws of the state of New York, USA, excluding the conflict of law principles thereof.