Terms & Conditions for ESI Professional Services

These Terms & Conditions for ESI Professional Services (“T&Cs”) apply exclusively to any of ESI’s Standard or Customized Professional services (“Services”) between ESI (the ESI entity offering the Services as set out in the Quotation) and the Client (the company requesting certain Services as specified in the Quotation). Notwithstanding the above, if the scope of a service is excluded (cf. Article 3), other specific conditions apply.

1. Purpose

The purpose of these T&Cs is to set forth the general terms and conditions for any Services that may be ordered by Client after the receipt of an offer made by ESI (the “Quotation”). Further details of the Services as well as potential requirements will be specified in the corresponding Quotation.

The Quotation will individually designate:

  • the details of the Services as defined in the ESI Services Portfolio, available under https://www.esi-group.com/support-service/serviceand linked to in the Quotation
  • for Customized Services: further details of the work to be performed (“Output” or “Statement of Work”) which will also describe the data communicated by Client or nature of them,
  • the financial conditions,
  • the duration.

 

2. Hierarchy of documents

All Quotations issued for that purpose by ESI and all purchase orders sent in return by the Client will obey to the terms and conditions of these T&Cs.

In case of contradiction between the T&Cs and a Quotation, the latter shall prevail.

For the duration the Services, it is hereby agreed that even if the purchase order sent to ESI in return of the Quotation refers to the Client’s terms and conditions, the terms of the Quotation and the T&Cs shall take precedence and together prevail over the terms and conditions of the Client.

3. Scope of Services

Services may include, but are not limited to the following categories (not exhaustive):

  • Standard Services:
    • Success Plan Workshop
    • Standard Training
    • Consultant
    • Health Check
  • Customized Services:
    • Custom Consulting
    • Custom Training
    • Workflow Automation
    • Success Roadmap
    • Embedded Support Expert

Standard Services have a generalized and predefined scope. Customized Services can be adapted to Client’s needs and require prior review by ESI with regards to the proposed scope and to prepare the technical specifications document that sets out the Output. The above-mentioned service types can also be bundled and offered as packages, with the specifications set out in the ESI Services Portfolio.

Services are usually performed by ESI, with the possible contribution (sub-contracting) of any affiliated company of ESI, or certified third parties (“Partner”) in accordance with Article 9 of these T&Cs. Services, including but not limited to Consulting Services, may be performed based on Client information, data or geometry communicated to ESI for the execution of the Services and additional documents or reports as specified in the Quotation.

During the Services, ESI may perform some developments or enhancements of its tools that are not part the Statement of Work made for Custom Consulting (like automation in the acquisition of data or for variation of parameters). Those developments for tools made for the Service are considered as internal developments, the property of which are kept by ESI and not considered as results of the Services. Any other type of more complex development and any other service of a different nature such as licensing of software product as well as support and maintenance of such software product is outside the scope of these T&Cs and requires a separate agreement.

Insofar as required to perform the Services and/or to provide deliverables as set out in the Quotation, Client will provide to ESI any information, or data required and reasonably cooperate with ESI.

Changes to the scope after a valid purchase order or Quotation acceptance require mutual agreement. For the extension of a scope, ESI may amend its fees, which will be communicated to the Client along with the updated scope for approval.

4. Time schedules - delays

The Services will start with a kick-off meeting on or after the defined start date as specified in the Quotation, but not before receipt of a valid purchase order (or quotation acceptance). In the kick-off meeting, the project organization and planning will be discussed. If the stated start date is delayed more than 14 days due to delays in the order process, ESI reserves the right to adjust the project planning in terms of start date, duration, and delivery dates. Standard Training does not require a kick-off meeting.  Customized Training may require a meeting to confirm training contents mentioned in the Technical Specifications.

Subject to mutual agreement on the schedules in a kickoff meeting, ESI shall perform the Services in accordance with the time schedules set forth in the Quotation within which the results are expected to be reached, realized, and delivered to the Client, provided the required documents and data are provided by Client in advance of the kickoff meeting.

The duration of the services ESI provides is usually time-based and specified in hours or days of Services to be delivered. For some Customized Services, if indicated in the Quotation, the result of the Services can be defined in the Quotation and would then not be time-based.

For time-based Services, ESI shall have no liability for extra delays due to a late delivery of data or geometry by the Client. In particular, ESI is not liable to provide services after the time schedule as set out in the Quotation, if required documents and data are not provided by Client as specified above.

5 . Quality

ESI undertakes to entrust work relating to Services only to qualified staff that is familiar with the execution of such Service and the corresponding industry standards.

ESI is not required to verify the quality or consistency of the data communicated by the Client, the latter being solely responsible for his data.  Consequently, ESI is not held liable for errors or inconsistencies in Client’s data or their timely submission to ESI and consequently the Services pose an obligation of means to ESI, not an obligation of results. However, if ESI considers that there is an inconsistency, ESI will inform the Client.

6.  Works to be performed at the Client’s premises

In the event that employees of ESI, an ESI affiliate or an ESI Partner are to work at the Client’s premises, upon instruction by Client, ESI shall ensure that such employees follow any of the Client’s guidelines and instructions in force at the premises, including, without limitation, any safety and security instructions. Affected employees may, upon request, sign an individual non-disclosure agreement with the Client protecting any information the employees may learn while working on the Client’s premises.

7. Title and Intellectual Property Rights

7.1 Transfer to Client

Title to the reports, models and other results, excluding Standard Training, of the Services and all related materials delivered by ESI, an ESI affiliate or an ESI Partner to the Client, as well as all Intellectual Property Rights related thereto (including, without limitation, the right to copy, exploit and dispose of and the representation right, sui generis right of the producer of databases  -in the European Union-, and this, worldwide, for the duration of legal protection, for all destinations whatsoever), shall pass and be transferred by ESI or its affiliate or Partner to the Client at the time of delivery and this, by virtue of the concerned Service without the need for an additional deed of transfer. Nevertheless, should it be needed, ESI shall undertake any actions free of charge required to uphold the Client’s rights to the reports, models and other results of the Services and the related Intellectual Property Rights. Notwithstanding the above, internal developments are considered as results, as specified in Article 3.

All tools, documents, drawings, data and other material supplied by the Client to ESI shall remain the exclusive property of the Client, and they shall be used by ESI or its affiliate or Partner solely for the purposes of the concerned Service. ESI shall return all such tools, documents, drawings, data and materials to the Client upon the Client’s request, and at the latest if no such request is made, upon the term or termination of the concerned Service. To comply with applicable legal requirements or to provide evidence in legal proceedings with the Client, ESI may retain one (1) copy of Client’s input data.

7.2 Warranty

To the extent ESI uses material protected by existing copyrights, patents, utility models, designs or other intellectual property rights (together “Intellectual Property Rights”) as part of the Services to be delivered to the Client, ESI warrants that such material is solely and independently developed by ESI, solely owned by ESI or material licensed by ESI or ESI otherwise obtained the relevant rights, and the use thereof to provide services to the Client does not breach any third party rights. ESI warrants that no reports, computing models or other results delivered by ESI to the Client under these T&Cs contain such pre-existing Intellectual Property Rights of ESI or third parties with the possible exception of hard copies of graphic interface in the reports, for which ESI hereby warranties that neither ESI nor ESI Group or Partners shall oppose to Client Intellectual Property Rights.

ESI warrants and shall be liable to ensure that any materials delivered to the Client under a Service do not infringe on any third party’s Intellectual Property Rights.

ESI shall indemnify, defend and hold the Client harmless from and against any claims, actions, direct damages, costs and expenses, including but not limited to reasonable attorneys’ fees, due to or arising from any infringement or alleged infringement of third-party Intellectual Property Rights attributable to any material delivered to the Client or their use by the Client.

If ESI’s materials, notably results, reports or any part thereof, or the use of the materials or any part thereof, would be or is likely to be confirmed by a competent court or agreed in a settlement to constitute infringement, and its further use would be prohibited or enjoined, ESI shall without undue delay at its own expense either:

  1. procure the right for the Client to continue to use the materials;
  2. replace the infringing materials with equivalent non-infringing ones; or
  3. modify the infringing materials to be non-infringing while continuing to be compliant with the agreed specifications and requirements.

ESI shall not be liable for any infringements caused by a modification to the materials by anyone else than ESI and which modifications are not approved in writing by ESI.

8. Financial counterpart and payment terms

The Client shall pay duly issued invoices within 30 (thirty) days of receipt of the invoice if not otherwise agreed upon in the Quotation or in a separate general agreement between Client and ESI specifying payment terms. 

The financial counterpart, defined in the Quotation and payable by the Client shall be deemed to cover any-and-all work costs and expenses incurred by ESI in connection with its performance under the Service, as well as the transfer of Intellectual Property Rights. ESI is entitled to additional payments, if and to the extent specified in the Quotation. If nothing is specified in the Quotation, the following applies:

  1. ESI is not entitled to any additional payments (e.g. for travel or accommodation) by the Client unless the Client has given its prior written consent thereto. If the Client has accepted to reimburse ESI for travel and/or accommodation costs, the following shall as a minimum apply: (a) travel time outside normal working hours shall not be chargeable; (b) a copy of the respective receipt is required for reimbursement.
  2. ESI shall send all invoices to the Client to the address indicated in the order sent by the Client:
  3. All invoices addressed to the Client shall as a minimum contain the following information in addition to any legal requirements: (a) Quotation reference, (b) order reference of the Client, and any other mention agreed between the Parties that is referred to in the Offer.

9. Assignment and subcontracting

In the event ESI intends to use subcontractors, ESI shall obtain the Client’s prior approval for such a subcontractor, unless the subcontractor is an existing affiliate or Partner of ESI, in which latter case, subcontracting is permitted. ESI shall remain fully liable for the actions or omissions of its subcontractors.

The Client shall have the right to assign this Agreement or any Service to a Client’s subsidiary or affiliate.

10. Notices

All reports, notices and other communication submitted or given hereunder shall be made in writing by e-mail or post. The addresses for any notices sent by post will be the ones specified in the Offer and, should the case occur, as modified in the Quotation.

11. Errors

ESI warrants that the results, reports simulation models or other deliverables of the Services delivered to the Client comply with the requirements and specifications set forth in the Quotation. Any not insignificant failure of such material delivered to the Client to comply with such requirements shall be regarded as an error.

ESI shall at its own cost promptly correct any errors in the models or other results of the Services notified by the Client in writing to ESI. ESI shall also compensate the Client for all reasonable and verifiable costs directly caused to the Client due to an error, but limited to the amount of the corresponding Quotation, provided the error was not caused with intent or gross negligence of ESI.

12. Liability

NOTWITHSTANDING ANY DAMAGES THAT THE CLIENT MIGHT INCUR FOR ANY REASON WHATSOEVER, INCLUDING WITHOUT LIMITATION, ALL DAMAGES REFERENCED HEREIN AND ALL DIRECT OR GENERAL DAMAGES IN T&Cs OR ANYTHING ELSE, THE ENTIRE LIABILITY OF ESI UNDER ANY PROVISION OF THIS AGREEMENT AND THE CLIENT’S EXCLUSIVE REMEDY HEREUNDER SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY THE CLIENT FOR THE SPECIFIC SERVICE CAUSING THE DAMAGE. 

NOTWITHSTANDING THIS LIMITATION, ESI MAY, AT ITS SOLE OPTION, CORRECT THE DEFECT OF THE SERVICES OR REPLACE SUCH SERVICE. THE FOREGOING LIMITATIONS, EXCLUSIONS, AND DISCLAIMERS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE. 

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL ESI BE LIABLE FOR ANY SPECIAL, INCIDENTIAL, PUNITIVE, EXEMPLARY, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, LOSS OF REVENUE, RECOVERY COSTS, LOSS OF SALES, COVER COSTS, LOSS OF CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE, FOR LOSS OF GOODWILL, FOR DAMAGE TO REPUTATION, OR FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SERVICES.

13. Force majeure

Neither Party shall be liable for damages or delay caused by circumstances constituting force majeure arising during a Service which could not have been reasonably foreseen or avoided by the Party, including but not limited to war, mobilization, civil commotion, official strike and government intervention.

A force majeure event suffered by a subcontractor of a Party shall discharge the Party from liability only if subcontracting from another source is not possible without unreasonable costs or significant loss of time.

The Party invoking force majeure shall inform the other Party within 7 days of the occurrence of force majeure circumstances and shall take any and all necessary steps to limit the effect and length of the force majeure circumstances.

14. Publicity

ESI shall not, without the Client’s prior written consent, publish, communicate or disclose to any third party any information relating to these T&Cs or any Service. 

ESI shall not use the Client’s name or any of the Client’s logos or trademarks, or drawings or pictures of the Client products on ESI’s brochures, web-pages or other promotional material as a reference or otherwise, without the Client’s prior written consent.

Should Client communicate results, reports or extracts thereof  made as a result of a Service, the Client shall mention the fact that the Services were made by ESI. In the case of reproduction of a screen copy that shows the graphic user interface of an ESI Group software product, Client shall indicate that it is “reproduced with the authorization of ESI Group”.

15.  Confidentiality

Confidential Information shall include any information communicated by the Client to ESI in the framework of a Service or communicated for quotation or discussions in the perspective of a possible Service, any Client’s business secrets, technical prototypes, work documentation, process and product descriptions, methods and qualities, all know-how and corresponding intangible assets acquired by ESI from the Client in the course of a Service, and any report communicated by ESI (being considered as Confidential Information only by ESI).

ESI hereby agrees to encompass in the definition of Confidential Information what may be directly communicated by any company within the organization of Client, subject to a clear information given by the communicator that said company is acting on behalf of Client.

In this latter case, ESI shall only be liable towards Client.

ESI hereby undertakes the following, for the duration set out in Article 17 calculated from the communication of each Confidential Information:

  1. it shall hold and treat the Confidential Information in the utmost and strictest confidence, and shall not disclose any Confidential Information to any third party;
  2. it shall use Confidential Information only for the purposes of this Agreement, and shall not make any other use of the Confidential Information without the prior written consent of the Client; and
  3. it shall permit access to, disclose and distribute Confidential Information only to such of its directors and employees (or the one of an affiliated company or Partner doing subcontracting) that need to have access thereto for the purposes of performing a Service or for internal training. It shall take full and adequate precautions to assure that each such individual shall maintain the confidentiality thereof to the same extent as required by ESI under these T&Cs, and that such confidentiality obligations shall survive the termination of such an individual’s employment agreement.

The confidentiality obligations shall not apply to information which verifiably:

  1. is freely accessible to the public or becomes freely accessible to the public due to a reason other than the negligence or omission of ESI or its personnel or other actions in violation of these T&Cs or the applicable legislation;
  2. ESI has lawfully received from a third party without any obligation of confidentiality;
  3. was lawfully in the possession of ESI prior to receipt of the same from the Client without any obligation of confidentiality related thereto;
  4. ESI has developed or develops independently without using material or information received from the Client; or
  5. ESI must disclose pursuant to law, decree or other order issued by competent regulatory or governmental body or other public authority or a judicial order, in which case ESI shall inform the Client in writing of the disclosure of information prior to its disclosure

Client agrees to let ESI use the Confidential Information as long as it is needed for the performance of a Service or for the need of a quotation. 

ESI undertakes to delete or destroy the confidential information as soon as confidential information is no longer useful (id.est. should a Quotation be refused or should a Service be carried out), this obligation to delete or destroy being  passed to subcontractors should the case occur. Exceptions as set out in Article 7 apply.

Upon request of the Client, ESI will send a confirmation to Client about the destruction or deletion.

16. Data Privacy

16.1. The Parties undertake to comply with the regulations in force applicable to the processing of personal data and, in particular, if applicable, Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of individuals with regard to the processing of personal data and on the free movement of such data. Each Party guarantees the other Party of compliance with its legal and regulatory obligations under the protection of personal data, without prejudice to the obligations they may have towards each other and their responsibility towards the persons concerned.

16.2 In the context of this contract, ESI may collect personal data for the proper performance of these T&Cs. In this case, ESI acts as a processor and the Client acts as a controller within the meaning of the aforementioned regulations.

16.3 The terms set out at https://www.esi-group.com/data-privacy-terms-for-clients are incorporated herein by reference and shall apply to these T&Cs and all related Quotation or purchase order.

17. Non solicitation

In consideration of ESI providing certain information, the Client shall not, from the start date of the Services until two (2) years after the end date of the Services as set out in the Quotation, solicit or entice or endeavour to solicit or entice away from ESI or any of its affiliates or Partner, any director or employee.

18. Duration

These T&Cs apply for the entire duration of the Services (the “Term”).

Notwithstanding the above, as for the confidentiality obligations that are the object of Article 10, such obligations have their own durations which is 5 years as from the date of communication of each Confidential Information, unless modified in a certain Quotation.

19. Termination

Either Party may terminate a Service prematurely with immediate effect by written notice to the other Party in the event of:

-  any material breach of this Agreement by the other Party if the other Party fails to rectify such breach within 14 days after issuance of the written notice thereof by the Party;

- a force majeure event which has continued for more than 3 months.

Should either Party terminate a Service, Client shall, after paying the relevant fees due, have the rights set forth in Article 7 to all materials, models and work-in-progress relating to the Services and results thereof that ESI had already prepared at the time of termination. 

Articles 15 to 19 and any other articles that by their nature are intended to survive, shall survive the termination of the Services.

20. Miscellaneous

20.1 No-waiver

Nothing in the behavior or actions of ESI (e.g. delay, inaction, any failure to perform or execute) shall be construed neither as a waiver of any rights, in whole or in part, granted by law or in virtue of this Agreement, nor as an authorization or tolerance of any kind, which would permit the Client’s continuation of any misconduct or breach of these T&Cs.

20.2. Severability

If one or more provisions of these T&Cs should be deemed invalid, all other provisions shall remain in force except where a legal ruling states that the nullity of a provision invalidates all other provisions.

Moreover, the Parties shall then make all reasonable efforts to replace said provision by a provision complying with the applicable regulation and respecting as closely as possible the intent of the invalid original provision.

20.3. Jurisdiction

For any litigation concerning the interpretation or execution relating to the Agreement, the venue shall be the court of the district in which the Client is located. The Client’s local law shall govern these T&Cs both for its interpretation and its enforcement.

For any litigation concerning the execution of several licenses used in different countries, the venue shall be the court of the district in which the Client has its registered address.