GSMA Ltd. Standard Terms And Conditions For Purchase Of Goods And Services
These terms and conditions (“Terms and Conditions”) govern procurement of any services and deliverables from a third party (“Supplier”) by GSMA Ltd., located at 165 Ottley Drive, Suite 150, Atlanta, GA 30324, United States (the “GSMA”). The respective “Services” and “Deliverables” are referenced in the main body of the invoice or other applicable document received from the Supplier in relation to the Services and Deliverables (“SOW”). Any other terms and conditions: (i) sent to GSMA by the Supplier in respect of the procurement of any goods and services by GSMA; or (ii) attached or referenced in the SOW, are void and of no effect. In the event of any conflict or inconsistency, these Terms and Conditions will take precedence over the SOW.
Services and Deliverables
- The Supplier will perform the Services and deliver the Deliverables in accordance with the relevant timeframes set out in the SOW.
- GSMA grants to Supplier at its sole discretion a non-exclusive, non-transferable and revocable license to use any GSMA materials provided by GSMA or third party materials expressly provided via GSMA in relation to the provision of any Services and the creation of any Deliverables: (i) solely and exclusively for the purposes of providing the Services and Deliverables; and (ii) strictly in accordance with the SOW. The Supplier is not entitled to: (i) disclose, copy, reproduce, modify; (ii) (where applicable) reverse engineer, disassemble, decompile, otherwise attempt to derive source codes from the object code of; (iii) damage; or (iv) make such materials available to any third party.
- GSMA may use and distribute the Deliverables in any way it sees fit. Save in the case of “Independently Developed Material” defined below, the Supplier acknowledges and agrees that all rights, title and interest to any intellectual property rights in the Services and Deliverables shall vest in GSMA. The Supplier is not granted any license, whether express or implied, under any of GSMA’s intellectual property rights, except as expressly specified in the SOW.
- “Independently Developed Material” is material that the Supplier has developed independently from the delivery of the Services and Deliverables, i.e. not specifically developed with the view of being incorporated into the Deliverables and the Services, including off-the-shelf software (in such case the Supplier will have to demonstrate that the cost of such development is not charged to GSMA). The Supplier grants to GSMA an irrevocable, perpetual, fully paid-up license to copy, use, develop, adapt, revise and sub-license any Independently Developed Material in the Deliverables (including any modifications and derivates thereof), throughout the world, for the purpose specified in the SOW.
- As full consideration for the performance of the Services to the satisfaction of GSMA and receipt and acceptance of the Deliverables by GSMA in full, GSMA shall pay to the Supplier any undisputed fees specified in the SOW (“Fees”) in accordance with any payment milestones set out therein.
- Subject to Clause 3.1, GSMA shall pay such invoices within sixty (60) days of receipt.
- All invoices from the Supplier must be received by GSMA no later than ninety (90) days after delivery of the Services and Deliverables is completed in full, to the satisfaction of GSMA (the “Cut-Off Date”). GSMA will not be liable for the payment of any invoices received after the Cut-Off Date.
- Except as expressly stated otherwise in the SOW, all Fees are exclusive of VAT (if any).
- Unless expressly stated in the SOW, any expenses and additional costs in relation to the SOW are included in the Fees.
- Supplier shall use solely for the purposes of performance hereunder and shall otherwise keep confidential all information provided to the Supplier by GSMA which is designated as confidential or ought reasonably in the circumstances be considered confidential.
- No obligation of confidentiality shall attach to any information, which: (a) is or becomes publicly known through no fault of the Supplier; (b) is or becomes known to the Supplier from a third party source other than GSMA without duties of confidentiality attached and without breach of any agreement between the Supplier and such third party; (c) furnished to others by GSMA without restriction on disclosure; or (d) was independently developed by the Supplier without reference to the confidential information.
- The Supplier will not provide GSMA with confidential information and all information received by GSMA from the Supplier shall be treated as non-confidential.
- Save when expressly indicated otherwise by the other party, each party may retain and process, and, where necessary disclose to third parties, relevant contact information of the other party’s employees and agents who were involved in the negotiation or performance of the SOW for the following purposes:
(a) performance under the SOW; and (b) maintenance of on-going business relationship with each other.
- To the extent that performance of the Services and delivery of the Deliverables pursuant to this Agreement involves the collection, disclosure, use or storage of personal data, the Supplier shall comply with the terms of the GSMA Data Protection and Information Security Exhibit, which will be provided to the Supplier on request.
Term and Termination
- The SOW commences on the date stated on the SOW (“Effective Date”).
- Unless specified to the contrary in the SOW, the SOW shall remain in effect from the Effective Date until performance of the Services and delivery of the Deliverables is completed in full, to the satisfaction of GSMA (the “Term”).
- Either GSMA or the Supplier may terminate the SOW:
(a) for material breach by the other Party where such breach remains uncorrected for a period of fourteen (14) days after written notice thereof to the defaulting Party; or
(b) if an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of that other Party; or that other Party becomes subject to an administration order or makes any voluntary arrangement with its creditors or that other Party goes into liquidation (except for the purposes of amalgamation or reconstruction and in such a manner that the company resulting from that company effectively agrees to be bound by or assume the obligations imposed on that other Party under the SOW) or that other Party ceases, or threatens to cease, to carry on business; or that other Party suffers any similar process under the law of its domicile or place of its jurisdiction.
- GSMA may terminate the SOW for any other reason upon seven (7) days’ written notice to the Supplier. In such case GSMA shall only be liable for: (i) Services and Deliverables already accepted by GSMA; and (ii) any reasonable costs properly incurred by the Supplier in connection with the Services and Deliverables.
- Upon the expiration or termination of the SOW for any reason the Supplier will promptly return to GSMA all copies of GSMA’s confidential information in its possession, power, custody or control. Clauses 2.4, 4, 5, 6, 7, 9 and 10 shall survive the expiration or termination of the SOW.
- Supplier represents and warrants as follows:
(a) that it will perform the Services in a professional, workmanlike manner, with the degree of skill and care that is required by prevailing, good and sound professional procedures and standards relevant to the Services being performed;
(b) that the Deliverables will be as Supplier represented them to be, that they will conform to all specifications and that they will be fit for purpose;
(c) that the Deliverables are delivered free and clear of all liens, security interests, charges or encumbrances by third parties; and
(d) that the Deliverables are: (i) the original work of the Supplier; or (ii) validly licensed from third parties for the purposes contemplated herein; and (iii) do not infringe the intellectual property or proprietary rights of any third party.
- The Supplier hereby agrees to indemnify, and hold harmless GSMA and its subsidiaries, affiliates, related entities, partners, members, agents, officers, directors, employees, attorneys, heirs, successors, assigns, the clients and each of them, from and against any and all claims, actions, demands, losses, damages, judgments, settlements, costs and expenses (including reasonable attorneys’ fees and expenses), and liabilities of every kind and character whatsoever, of any breaches of Clauses 4, 5 and 7.1. This indemnity shall require the payment of costs and expenses by the Supplier as they occur.
- Time is of the essence. If the performance of the Services or delivery of Deliverables is not completed by the dates specified herein, GSMA may, without liability, terminate the SOW immediately upon written notice to the Supplier as to Services or Deliverables not yet rendered.
- The Supplier shall, at its own expense, take out and maintain adequate insurance coverage for the term of the SOW such insurance as is required by any applicable law and as is appropriate in respect of its obligations under this Agreement. At minimum, Supplier shall secure Commercial General Liability Insurance with limits in the minimum amount of GBP 5 Million per occurrence and GBP 10 Million in the aggregate, Workers’ Compensation Insurance in the minimum amount of GBP 5 Million, and Professional Liability/Errors & Omissions Insurance in the minimum amount of GBP 2 Million per occurrence. Upon request, the Supplier shall provide GSMA with certificates of insurance or evidence of coverage. The Supplier shall indemnify GSMA against all losses resulting from Supplier’s failure to obtain or maintain such insurance.
- In performing its obligations under the SOW, the Supplier shall comply with: (i) all applicable laws, rules and regulations of governmental entities, having jurisdiction over such performance, including any health and safety legislation and environmental legislation; and (ii) GSMA “Supplier Code of Conduct” as made available to the Supplier by GSMA from time to time.
- In addition to and without prejudice to Clause 7.5, the Supplier (on its own behalf and on behalf of its supply chain) and GSMA each agree and undertake to the other that in connection with the SOW, they will each respectively comply with all applicable laws, rules and regulations of the United States of America relating to anti-bribery, anti-money laundering, anti-slavery, and economic and security sanctions.
Upon written notice to the Supplier, GSMA shall have the right at any time to make changes to the specifications for Services and Deliverables, the time and place of delivery and the method of transportation. If any such change causes an increase or decrease in the cost or time required for the performance hereunder, an equitable adjustment shall be made in the price and/or delivery schedule.
Limitation of Liability
- Nothing in the SOW excludes or limits either GSMA’s or the Supplier’s liability for any liability that may not be excluded or limited by law.
- Subject to Clause 9.1 above, neither Party shall be liable in relation to the SOW for any loss of profits, loss to reputation, loss of contracts, or any indirect, punitive, special or consequential loss or damage.
- Subject to clause 9.1 above, GSMA’s total aggregate liability under the SOW shall not exceed the total annual aggregate of any Fees actually paid pursuant to the SOW during the Term.
- If any term, provision, covenant or condition of the SOW is held invalid or unenforceable for any reason, the Parties agree that such invalidity shall not affect the validity of the remaining provisions and further agree to substitute for such invalid or unenforceable provision a valid and enforceable provision of similar intent and economic effect.
- No failure or delay by either Party in enforcing its respective rights will prejudice or restrict the rights of that Party, and no waiver of any such rights or of any breach of any contractual terms will be deemed to be a waiver of any other right or of any later breach.
- GSMA may hire third parties to perform Services and/or Deliverables the same as or similar to those provided by the Supplier. The Supplier shall be free to, and is encouraged to, advertise, offer, and provide its services to others provided that it does not breach the obligations set forth in this Agreement.
- The relationship between GSMA and Supplier is that of purchaser and supplier. Nothing in the SOW is intended to create a partnership or joint venture of any kind between the Parties, or to authorize either Party to act as agent for the other. Save where expressly so stated in the SOW neither Party will have authority to act in the name of or on behalf of or otherwise to bind the other.
- Unless expressly stated otherwise in the SOW, each Party shall bear full and sole responsibility for its own expenses, liabilities and costs of operation.
- The SOW is the complete, final and exclusive statement of the terms of the agreement between the Parties and supersedes any and all other prior and contemporaneous negotiations and agreements, whether oral or written, between them relating to the subject matter hereof.
- Subject to Clause 8, the SOW may not be varied, modified, altered, or amended except in writing signed by the Parties.
- Where applicable, the SOW may be entered in to in any number of counterparts each of which shall be an original and all of which taken together shall be one and the same instrument. A Party may enter in to the SOW by signing any such counterpart.
- Save as expressly set out in the SOW, the Parties intend that a person who is not a party to the SOW shall have no right to enforce any term of the SOW.
- The SOW shall be construed in accordance with, and all disputes hereunder shall be governed by, the laws of the State of Georgia, United States, and shall be subject to the exclusive jurisdiction of the state and federal courts located in Atlanta, Georgia.