Services Agreement
Applied Technology Group Limited (ATG) Services Framework Agreement:
Standard Terms
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1 DEFINITIONS AND INTERPRETATION
1.1 In this Agreement the following definitions and rules of interpretation shall apply:
“Agreement” means this framework agreement including the Contract Details, Standard Terms, the Schedules and (subject to Service Proposal) any and all Statements of Work;
“Applicable Laws” means all applicable laws, legislation, statutes, statutory instruments, regulations, codes of practice, edicts, byelaws or directions or guidance from government or governmental agencies which have the force of law whether local, national, international or otherwise existing from time to time;
“ATG” means the entity identified as such in the Contract Details;
“ATG Personnel” means any person (including any employee, worker or subcontractor) engaged by the ATG wholly or partly from time to time in the provision of any of the Services;
“ATG Representative” means the person identified as such in the relevant Statement of Work or as otherwise notified to CLIENT in writing from time to time;
“Client” means the entity identified as such in the Contract Details; “Client Data” means all information, data or records of whatever nature and in whatever form (including CLIENT Personal Data) which (i) may be supplied by or on behalf of any member of the CLIENT Group to ATG or its subcontractors under or in connection with this Agreement; and/or (ii) relating to the business, employees or other activities of the CLIENT Group whether subsisting before the date of this Agreement or as generated, collected, stored, transmitted or otherwise processed as part of, or in connection with, the Services;
“CLIENT Equipment” means any IT systems and IT or other equipment or tools provided by CLIENT to the ATG and used directly or indirectly in the provision of the Services;
“CLIENT Group” means CLIENT and all entities that directly or indirectly Control, are Controlled by or are under common Control with CLIENT, together with its and their respective joint ventures;
“CLIENT Materials” means all documents, information and materials provided by CLIENT to the ATG relating to the Services or under this engagement, including (without limitation) computer programs, source codes, drawings, data, reports, specifications, trade secrets, know-how and any related Intellectual Property Rights; “CLIENT Personal Data” means CLIENT Data that is personal data;
“CLIENT’s Policies” means CLIENT’s policies, procedures and standards (including safety, security and site procedures and standards) notified to the ATG and as amended from time to time;
“CLIENT’s Representative” means the person identified as such in the relevant Statement of Work or as otherwise notified to the ATG in writing from time to time;
“Business Day” means a day that is not a Saturday, a Sunday nor a public or bank holiday in Hong Kong; “Change” has the meaning given in clause 9.1;
“Charges” means the sums set out in an applicable Statement of Work; “Commencement Date” means the date described as such in the Contract Details;
“Confidential Information” means commercial, financial, marketing and technical information, know-how, trade secrets and other information or data in any form or medium, howsoever disclosed or accessed, whether before or after the date of this Agreement (together with any reproductions of such information in any form or medium), which in each case (either in its entirety or in the precise configuration or assembly of its components) is not publicly available (save for where such information entered the public domain as a result of a breach of this Agreement);
“Contract Details” means the section of this Agreement that is entitled
“Contract Details”;
“Data Protection Legislation” means all laws relating to personal data, privacy or data security, including without limitation the PDPO and other applicable international, regional, federal or national data protection laws, regulations and regulatory guidance;
“Deadlines” mean those dates and times specified in the relevant Statement of Work as being a deadline for delivery of one or more Services (including any and all Key Milestones);
“Deliverable” means any documents, products or materials (of any form, including any reports, software, databases, specifications, systems, designs or drawings) which is to be, or is, created, developed, modified or provided in connection with the provision of the Services, as briefly set out in the relevant Statement of Work;
“End Date” means the date described as such in the Contract Details; “Exit Plan” means the plan of events and obligations to be carried out by the ATG as may be set out in the relevant Statement of Work, to ensure the smooth transition of the Services to CLIENT or any replacement ATG appointed by it;
“Force Majeure Event” means an event beyond the reasonable control of a party, including natural disasters, storms, fire, flooding and lightening but not including strikes, riots, lockouts and industrial action;
from a leading skilled and experienced ATG in the provision of services similar to the Services; and (ii) compliance with all Applicable Laws; “Intellectual Property Rights” means copyright and related rights, design rights, rights in know-how, rights in Confidential Information, database rights, software rights, patents, rights to inventions, utility models, rights in trade marks (and all goodwill attaching to such trade marks), trade names, domain names and topography rights, in each case whether registered or unregistered, including all applications for, and renewals or extensions of such rights, and any other similar or equivalent rights or forms of protection that subsist or will subsist now or in the future anywhere in the world;
“Key Milestone” means those dates and times specified in the relevant Statement of Work as being a “Key Milestone” on which date the ATG
has agreed to provide certain Deliverable(s);
“Losses” means any claims, losses, demands, actions, damages, costs (including court costs and reasonable legal fees), fines, liabilities, obligations, liens and expenses;
“Nominated Personnel” means those persons identified as such in the relevant Statement of Work;
“Output” means: (i) the Deliverables (and all drafts, modifications and enhancements of the Deliverables); and (ii) any other works created in course of or exclusively for the purpose of performing the Services;
“PDPO” means Cap.486 Personal Data (Privacy) Ordinance in Hong Kong;
“Rate Card” means the rates agreed between the parties to be charged on a fixed fee or a time and material basis as set out in the Contract Details;
“Services” means delivery of the Deliverables and those other services set out in the relevant Statement of Work and/or as otherwise provided under this Agreement;
“Service Credits” means the respective service credits as may be set out in the relevant Statement of Work;
“Service Levels” means the ATG’s performance levels as may be set out in the relevant Statement of Work; “Standard Terms” means these terms and conditions;
“Statement of Work” means the specification of Services, Deliverables, Deadlines, Key Milestones, Charges and other items, comprising the brief for a particular project required by CLIENT as agreed between the parties, which is largely in the form of the document attached at Schedule 1;
“Good Industry Practice” means: (i) the exercise of that degree of skill, care, diligence, prudence and foresight that would reasonably be expected
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Framework Agreement: Services
1.10 any reference to the term “including” shall be deemed to mean “including without limitation”;
1.11 any reference to the term “execution” shall include execution by electronic signature; and
1.12 any reference to “CLIENT” in this Agreement or to CLIENT as a “party” to the Agreement shall, when applicable to a specific Statement of Work, refer to the CLIENT Group entity signatory to such Statement of Work.
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2 SCOPE OF AGREEMENT
2.1 Only when the Statement of Work has been agreed in writing and executed by the parties, shall it: (i) be binding automatically on both parties; and (ii) form part of this Agreement. Any subsequent amendments to the Statement of Work shall only be valid if made in accordance with clause 9 or clause 25.5.
2.2 CLIENT shall have liability in relation to any Services unless such Services have been provided in response to a written Statement of Work issued by an authorized representative on behalf of CLIENT.
2.3 The ATG shall not, in CLIENT’s opinion, unreasonably refuse any Statement of Work for Services during the term of this Agreement.
2.4 Any purchase of the Services by CLIENT is non-exclusive and nothing in this Agreement shall place a requirement on CLIENT to order a minimum volume of Services or any further Services from the ATG, or to prevent it from purchasing similar services from any other service providers.
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3 ATG OBLIGATIONS
3.1 The ATG shall supply and perform the Services for the benefit of the CLIENT Group and in accordance with this Agreement.
3.2 The ATG agrees and acknowledges that time is of the essence as to any Key Milestone dates specified in any Statement of Work and undertakes to meet such dates.
3.3 The ATG warrants and represents that the Services shall be supplied in accordance with Good Industry Practice and all objectives, descriptions and specifications set out in this Agreement. The ATG shall immediately notify CLIENT if it becomes aware that it may be in breach of the above warranty and the steps it will be taking to remedy such breach.
3.4 In providing the Services, the ATG shall:
3.4.1 make available the Services to CLIENT in accordance with the Deadlines and at least any Service Levels;
3.4.2 use appropriately qualified and trained ATG Personnel to perform the Services;
3.4.3 use the Nominated Personnel to perform the roles described in the Statement of Work (if any);
3.4.4 for Services performed on a time and materials basis, not use personnel to perform these Services whose rate reflects a competency level greater than that reasonably required for the relevant Services;
3.4.5 ensure the Deliverables are of satisfactory quality, free from defects and at least equal in all respects to any samples provided or given by either party;
3.4.6 keep accurate and up-to-date records of all work done as part of the Services, including the names of ATG Personnel performing the work, their designation, and the nature of the work;
3.4.7 ensure that all CLIENT Materials, CLIENT Equipment and CLIENT Data shall: (i) at all times, be and remain the exclusive property of CLIENT; (ii) be kept confidential and shall not be disclosed to any third party; (iii) be held by the ATG in safe custody; (iv) be kept in good condition by the ATG until returned to CLIENT; and (v) not be disposed of or used other than in accordance with this Agreement and any other written requirements of CLIENT;
3.4.8 keep CLIENT informed of progress of the Services at regular intervals, and promptly inform CLIENT of any potential delay or problem concerning the Services or its obligations under this Agreement at the earliest possible opportunity, together with its proposals to keep such delay to a minimum;
3.4.9 comply with CLIENT’s Policies and not disrupt the business or ordinary activities of CLIENT; and
3.4.10 comply with any reasonable requests or directions of CLIENT in relation to the ATG’s performance of the Services, including in order to ensure good CLIENT customer outcomes.
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4 CLIENT OBLIGATIONS
4.1 CLIENT shall, in each case, solely for the provision by the ATG of the Services:
4.1.1 provide the ATG with the agreed access to the site for performance of the Services as set out in the relevant Statement of Work (which the ATG shall use solely for the provision of the Services); and
4.1.2 provide the ATG with any CLIENT Equipment and CLIENT Materials as set out in the relevant Statement of Work.
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5 NON-CONFORMING SERVICES
5.1 In the event that ATG is (in CLIENT’s reasonable opinion) in breach of clause 3, ATG may refuse to accept any Services related to that breach and will give ATG written notice of the nature of the breach. Where the non-conformance can be rectified, at CLIENT’s election, ATG may be required to rectify and resubmit the Services to CLIENT for acceptance within the period specified in CLIENT’s notice or, if no period is specified, promptly.
5.2 Following resubmission in accordance with clause 5.1, if the nonconformance has not been rectified, or where the non-conformance cannot be rectified, CLIENT may in its sole discretion: (i) accept the Services subject to a reasonable reduction and/or (if already paid) refund in the Charges; or (ii) reject the Services and ATG shall refund to CLIENT (within fourteen (14) days of the date of the rejection) all sums paid in respect of such Services (and any other Services that in CLIENT’s opinion cannot be used for their intended purpose as a result); or (iii) recover from ATG any costs reasonably incurred by CLIENT in obtaining substitute services from another service provider. If CLIENT exercises its rights under (ii) or (iii) of this clause, it may at its option terminate this Agreement by written notice with immediate effect for material breach.
6 INTELLECTUAL PROPERTY
6.1 Any Intellectual Property Rights in any Output (including any enhancement or derivative works created or developed from the Deliverables or the CLIENT Materials or as a result of this Engagement) shall vest in CLIENT upon creation. ATG hereby assigns (and before delivery to CLIENT shall procure the assignment from (i) Personnel of ATG; (ii) any subcontractors that CLIENT has agreed to participate in the Services in accordance with Clause 10.1 herein; and (iii) any necessary third parties to the extent possible (for any third party rights for which ATG is unable to obtain the Intellectual Property Rights or license, ATG shall inform CLIENT prior to incorporating any third party rights into any of the Output or deliverables) such rights to CLIENT with full title guarantee to the fullest extent permitted by law. Insofar as they do not vest automatically by operation of law or under this Agreement, ATG holds legal title in these rights and inventions on trust for CLIENT.
6.2 ATG shall procure that the ATG Personnel waive absolutely and irrevocably their moral rights granted under the Copyright Ordinance (Cap 528) or any Applicable Laws relating to that Ordinance, including equivalent or analogous rights under laws of other jurisdictions subsisting in any Output.
6.3 For the avoidance of doubt, where Deliverables contain any Intellectual Property Rights that were created, developed or acquired by the CLIENT otherwise than in relation to the Services performed under any Statement of Work (“Pre-Existing Rights”), then the CLIENT shall retain ownership of such Pre-Existing Rights. The CLIENT hereby grants to the ATG Group a non-exclusive, worldwide, perpetual, irrevocable, transferrable, royalty-free license to use such Pre-Existing Rights in order to benefit from the rights granted under this Agreement and to sub-license such Pre-Existing Rights to third parties for this purpose.
6.4 All logos, trade names and trademarks (the “Marks”) and any Intellectual Property Rights owned or used by any of the CLIENT Group in the course of its business are the property of the CLIENT Group. The ATG may not use any such Marks (whether to publicize the existence of the ATG’s relationship with CLIENT or otherwise) or any similar Marks without the prior written permission of CLIENT’s Corporate Affairs Director on a case by case basis.
6.5 The ATG warrants and undertakes that:
6.5.1 it has not given and will not give permission to any third party to use any of the Output or any of CLIENT’s Pre-Existing Rights or CLIENT Materials ;
6.5.2 it is unaware of any use by any third party of any of the Output and if it becomes aware of any unauthorized use or any third party use shall inform CLIENT immediately; and
6.5.3 its fulfilment of this Agreement, and the CLIENT Group’s use of the Output, shall not infringe any Intellectual Property Rights of any third party.
6.6 The ATG undertakes to execute all documents, make all applications, give all assistance and do all acts and things, at the reasonable expense of CLIENT and at any time either during or after the term of this Agreement, as may, in the opinion of CLIENT, be necessary or desirable to vest in CLIENT all Intellectual Property Rights in the Output, and/or to defend CLIENT against claims that any of such Intellectual Property Rights infringe third party rights, and/or to otherwise protect and/or maintain any such Intellectual Property Rights.
7 CHARGES
7.1 Subject to the provisions of this clause 7, CLIENT shall pay the Charges to the ATG in consideration of the ATG’s performance of its obligations under the relevant Statement of Work. Unless clearly specified otherwise in a Statement of Work, the Charges set out in the Statement of Work include all travel, subsistence, taxes imposed by the applicable government for the provision of the Services and other costs and expenses of the ATG.
7.2 The ATG shall invoice CLIENT for the Charges in accordance with the dates and times specified in the relevant Statement of Work. Subject to clause 7.4, CLIENT shall pay the Charges to the ATG for the Services within 14 (fourteen) days from the end of the month in which CLIENT receives the relevant valid and undisputed invoice from the ATG. On CLIENT’s request, the ATG shall report on the level of the Charges incurred at any time.
7.3 In order to be valid, invoices issued by the ATG must:
7.3.1 be a valid tax invoice for the purposes of any relevant tax legislation, be invoiced in the currency as specified in the Statement of Work and be sent to CLIENT at the address notified to the ATG from time to time;
7.3.2 identify the ATG, reference this Agreement, specify the Services to which the invoice relates, and include any purchase order number or other reference number that may have been provided by CLIENT to the ATG in connection with this Agreement; and
7.3.3 for any Services performed on a time and materials basis, identify the personnel who performed the work and their competency level, and be in accordance with the rates set out in the Rate Card.
7.4 If CLIENT disputes any sum included in an invoice, it shall notify the ATG of the dispute and the amount to which it relates. CLIENT shall pay any undisputed balance of the invoice in accordance with this clause 7 but may withhold payment of the disputed sum until the dispute is resolved in accordance with the dispute resolution procedure set out at clause 17.
7.5 If any undisputed sum payable under this Agreement is not paid when due then the party entitled to payment may claim interest from the due date until payment is made in full, both before and after any judgment, at 8% (eight per cent) per annum above the Hong Kong Monetary Authority base rate from time to time. The parties agree that this clause 7.5 is a substantial remedy for late payment of any sum payable under the Agreement in accordance with the Late Payment of Commercial Debts (Interest) Act 1998 (or equivalent legislation in any applicable jurisdiction or territory).
7.6 The Charges quoted within this Agreement are inclusive of any taxes required to be withheld on payment. To the extent that the requirement to withhold is uncertain, it is the CLIENT’s responsibility to obtain or provide adequate advice or analysis to support any position whereby ATG is not required to withhold tax on payment of any invoice.
8 CHANGE CONTROL
8.1 From time-to-time CLIENT may make a written request for changes to the scope, performance or delivery of the Services or other requirements in a Statement of Work (a “Change”). Promptly (and in not more than 5 (five) Business Days) following CLIENT’s Change request, the ATG shall provide a written proposal to CLIENT containing: (i) the time required to implement the Change; (ii) any necessary variation to the Charges; and (iii) any other required changes to the Statement of Work. Following receipt of the ATG’s proposal, CLIENT shall have the option to:
8.1.1 accept the proposal in which case the parties shall amend the Statement of Work as required; or
8.1.2 reject the proposal in which case the Statement of Work shall remain as agreed prior to the Change request; or
8.2 No Change shall be effective until agreed in writing and executed by both parties.
9 ATG REPRESENTATIVE
9.1 The ATG Representative shall co-operate with CLIENT (including attending regular meetings with the CLIENT Representative) as CLIENT may request from time to time or as set out in the relevant Statement of Work.
9.2 The ATG agrees that the ATG Representative and the Nominated Personnel shall not be replaced before the end of the term of each relevant Statement of Work, unless:
10.2.1 the individual to be replaced is prevented by ill-health from carrying out his or her duties in connection with the Agreement for a significant period; or
10.2.2 the individual resigns or their contract of employment is terminated; or
10.2.3 the individual is replaced pursuant to clause 10.3.
9.3 In the event that in CLIENT’s opinion the ATG Representative or any Nominated Personnel has performed unsatisfactorily, on CLIENT’s written request the ATG shall consult with the CLIENT Representative to identify and provide a suitable replacement.
10 SUBCONTRACTING
10.1 ATG may subcontract the performance of any of its obligations under this Agreement only with CLIENT’s prior written consent on a case-by-case basis.
10.2 If authorized to appoint any subcontractor in accordance with this clause, ATG shall only do so on terms that:
10.2.1 no such subcontractor shall be entitled to assign, or create further subcontracts in respect of, its appointment;
10.2.2 the ATG shall remain responsible and liable to CLIENT for any work performed by any subcontractors under this Agreement;
10.2.3 each subcontractor shall be subject to a legally binding written contract containing obligations no less onerous than those imposed on the ATG under this Agreement;
10.2.4 no subcontractor shall have any right to claim any ownership in the Output or the related Intellectual Property Rights.
11 CONFIDENTIALITY
11.1 The ATG shall, and shall procure that all ATG Personnel shall, keep in strict confidence all Confidential Information relating to any of the CLIENT Group, all CLIENT materials, any Output, this Agreement and/or the Services performed under it, and shall not use or disclose the same, save: (i) for the purposes and as required for the proper performance of this Agreement; or (ii) with the prior written consent of CLIENT on a case by case basis; or (iii) as may be required by Applicable Law, a court of competent jurisdiction or any governmental or regulatory authority. All duties of confidentiality shall continue to be binding upon ATG and ATG Personnel and this clause survive any termination or expiry of the Services or engagement.
11.2 Where any disclosure is made pursuant to clause 11.1(i) or (ii) above, it shall be done subject to obligations equivalent to those set out in this Agreement and the ATG shall ensure such recipient of the Confidential Information complies with such obligations. The ATG shall be responsible to CLIENT in respect of any disclosure or use of such Confidential Information by the recipient.
11.3 Notwithstanding clause 11.1, the ATG may retain one copy of any Confidential Information required for its reasonable record keeping requirements, provided it is held securely in compliance with this clause 11 and without any disclosure to any third party and such Confidential Information may not be used by ATG or incorporated into any deliverables that may be delivered to any third party.
11.4 The ATG shall not initiate or participate in any actions or conduct tending to injure, bring into disrepute, ridicule, damage or destroy the goodwill of any of the CLIENT Group.
12 PERSONNEL
12.1 It is the parties’ commercial intention that the Transfer of Undertakings (Protection of Employment) Regulations 2006 or any equivalent legislation anywhere in the world (together referred to as “TUPE”) shall not apply to any transfer of the Services or any part of the Services from the ATG to CLIENT or to any replacement ATG of the Services on the expiry or termination of this Agreement or any Statement of Work (in whole or in part), howsoever that occurs, and accordingly it is the parties’ intention that no ATG Personnel shall transfer into the employment of CLIENT or any replacement service provider .
12.2 The relationship of the ATG and the ATG’s Personnel to CLIENT will be that of independent contractor. Nothing in this Agreement shall render the ATG or any of the ATG’s Personnel an employee, worker, agent or partner of any member of the CLIENT Group, and ATG shall not hold itself out as such and shall procure that the ATG’s Personnel shall not hold themselves out as such.
12.3 The ATG irrevocably and unconditionally agrees to indemnify and keep indemnified the CLIENT Group and its and their employees, subcontractors and agents and any replacement service provider in full and on demand against all Losses incurred or suffered by any of them, and whether wholly or in part resulting directly or indirectly from any assertion by any person or any representative of any person to the contrary of what is set out in Clause 12.1 or 12.2.
12.4 The ATG will promptly provide such information and assistance as is requested by CLIENT at any time in order to assess any liability under TUPE, including: (i) up to date job descriptions for any ATG Personnel; (ii) a description of work undertaken on the Services by any ATG Personnel; (iii) an estimate of the percentage of time spent on the Services by each ATG Personnel; and (iv) details regarding how the ATG’s workforce is organized in the provision of the Services (e.g. relevant structure charts).
12.5 ATG agrees and undertakes that it shall:
12.5.1 procure and be solely responsible for the observance and performance by the ATG Personnel of the terms of this Agreement, and shall be directly liable to CLIENT for any breach;
12.5.2 ensure that an adequate number of ATG Personnel are assigned to perform the Services and that all are suitable and possess the necessary experience, knowledge, understanding
and skills for their role at all times;
12.5.3 at all times ensure that the ATG Personnel have the legal right to work in the country(ies) in which they are assigned to work and that it complies with any requirements for any work permits, visas, rights of residence or other similar provisions in respect of the ATG Personnel; and
12.6 CLIENT shall have the right to monitor the performance of any ATG Personnel and, on receipt of notice in writing from CLIENT, the ATG shall immediately remove any ATG Personnel from a site where the Services are being carried out, or stop any ATG Personnel carrying out the Services, who have in the reasonable opinion of CLIENT misconducted themselves or have acted incompetently or in such a way as to demonstrate a failure to take reasonable care or skill in the performance of the Services or are unsuitable to carry out such Services.
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13 DATA PROTECTION AND BUSINESS CONTINUTIY
13.1 For the purposes of this clause and Schedule 2, “data subject”, “data user”, “personal data” and “processing” shall have the meanings ascribed to them in the PDPO.
13.2 Each party warrants and undertakes to comply with its respective obligations under the Data Protection Legislation and, without prejudice to the foregoing, the ATG shall not act or omit to act in a manner that will or is likely to result in CLIENT breaching its obligations under such Data Protection Legislation.
13.3 The ATG agrees to be bound by, and comply with, the provisions of Schedule 3, with respect to business continuity.
14 LIABILITY
14.1 Nothing in this Agreement limits or excludes, or will be deemed to limit or exclude, either party’s liability for: (i) death or personal injury caused by negligence; (ii) wilful misconduct; (iii) fraud or fraudulent misrepresentation; (iv) sums arising under clauses 12.3 (Personnel) and/or 15.1 (Indemnity); (v) sums required to be insured under clause 21 (Insurance); (vi) any other loss that may not otherwise be limited or excluded by Applicable Law.
14.2 Subject to clause 14.1, the ATG’s maximum liability for all and any Losses on the part of the CLIENT Group that arise under or in connection with this Agreement shall be limited to 300% (three hundred percent) of the aggregate Charges paid or payable by the CLIENT Group in connection with this Agreement at the time of the claim, or $8,000,000 (twenty million HKD), whichever is the greater.
14.3 Subject to clause 14.1, the CLIENT Group’s maximum aggregate liability for all and any Losses that arise under or in connection with this Agreement shall be limited to 100% (one hundred percent) of the aggregate Charges paid or payable by the CLIENT Group under this Agreement for the 12 (twelve) months prior to the date on which the relevant breach took place, but this limitation shall not limit or exclude CLIENT’s obligation to pay the Charges in accordance with this Agreement.
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15 INDEMNITY
15.1 ATG shall at all times fully indemnify the CLIENT Group and their respective officers, employees and agents against any and all Losses suffered or incurred by any or all of the CLIENT Group, or for which any or all of the CLIENT Group may become liable, arising out of:
15.1.1 any breach by ATG of any warranty of this Agreement; and/or
15.1.2 any actions or omissions of ATG that cause any of the CLIENT Group to breach any regulatory requirement; and/or
15.1.3 any default by ATG or any ATG Personnel that relates to the provisions of clause 6 (Intellectual Property), 11 (Confidentiality), 13 (Data Protection), 20 (Anti-Bribery), and/or 23 (Modern Slavery).
15.2 CLIENT shall notify ATG promptly of any third party claim pursuant to clause 16.1, make no settlement, admission or compromise concerning such claim, allow the ATG to conduct the defense of the claim using external legal counsel approved by CLIENT (such approval not to be unreasonably withheld or delayed) and, at the ATG’s expense, provide the ATG with such assistance as the ATG may reasonably request. In conducting such defense, the ATG shall not compromise, admit or settle any claim without the prior written consent of CLIENT and shall keep CLIENT updated of all material steps on an ongoing basis.
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16 DISPUTE RESOLUTION
16.1 If a dispute arises under or in relation to this Agreement, either party shall give notice to the other party in writing setting out the full particulars giving rise to the dispute. Following receipt of such notice, the CLIENT Representative and ATG Representative shall endeavor to promptly resolve the dispute.
16.2 If such dispute has not been so resolved within 15 (fifteen) Business Days of receipt of the dispute notice:
17.2.1 if the ATG resides in Hong Kong, either party shall be entitled to pursue other forms of dispute resolution; or
17.2.2 if the ATG resides outside Hong Kong, the dispute shall be referred to and finally resolved by arbitration under the HKIAC Rules, which Rules are deemed to be incorporated by reference into this clause. The number of arbitrators shall be three and the seat, or legal place, of arbitration shall be Hong Kong. The language to be used in the arbitral proceedings shall be English and the governing law of the contract shall be the substantive law of Hong Kong SAR.
16.3 Prior to such time as defined in clause 17.2, neither party shall initiate legal (including arbitration) proceedings unless such party has reasonable cause to do so to avoid damage to its business, Intellectual Property Rights or (in relation to CLIENT) CLIENT Data, or to protect any right of action it may have.
17 RECORDS AND AUDIT
17.1 The ATG shall, and shall procure that any subcontractors shall, maintain and retain complete and accurate books, records of account, reports and other data necessary for the proper administration of this Agreement for 7 (seven) years after termination or expiry of this Agreement and in compliance with all confidentiality obligations as set out herein.
17.2 CLIENT, its actuaries or its auditors shall have the right to inspect the ATG’s compliance with this Agreement and the financial and accounting records pertaining to the ATG’s performance under this Agreement. Such right shall apply once per year between 8:30am to 6:00pm on a Business Day on giving reasonable notice, except in the event of: (i) a complaint by a regulatory authority or where inspection is required to facilitate CLIENT to discharge its statutory or regulatory obligations; (ii) an alleged or actual breach of security; (iii) an alleged or actual breach of clauses 22 (Anti-Bribery) and/or 23 (Modern Slavery); or (iv) identified failings in an audit, in which case, further inspections on short notice outside of normal business hours may take place.
18 TERM AND TERMINATION
18.1 The Agreement shall be effective as of the Commencement Date and shall continue in effect until the End Date, unless terminated in accordance with this Agreement or extended as agreed in writing by both parties.
18.2 Either party may terminate this Agreement and/or any relevant Statement of Work by written notice with immediate effect if at any time the other party:
18.2.1 (i) becomes insolvent; or (ii) an order is made or a resolution is passed for either party’s winding up (except voluntarily for the purpose of solvent amalgamation or reconstruction); or (iii) an administrator, administrative receiver or receiver is appointed over the whole or any part of either party’s assets; or (iv) either party makes any arrangement with its creditors; or (v) any event occurs, or proceeding is taken, with respect to either party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in sub-clauses (i) to (iv) inclusive above; or
18.2.2 is in material breach of any provision of this Agreement, provided that: the non-breaching party has provided the other party written notice of such breach; and if the breach is capable of remedy, the breaching party has failed to cure such breach to the reasonable satisfaction of the non-breaching party within 10 (ten) Business Days of receipt of the above notice, and, for the purposes of this clause, “material breach” means a breach (including an anticipatory breach) that is not minimal or trivial in its consequences to the terminating party. In determining a material breach, no regard shall be had to whether it occurs by some accident, mishap, mistake or misunderstanding.
18.3 CLIENT may terminate this Agreement and/or any or all Statements of Work, by written notice with immediate effect if: the ATG repeatedly breaches any term of this Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Agreement; or the ATG or any ATG Personnel commits any gross misconduct affecting the business of any of the CLIENT Group; or the ATG or any ATG Personnel, in the reasonable opinion of CLIENT, is negligent or incompetent in the performance of the Services; or any warranty given by the ATG under this Agreement is found to be untrue or misleading; or the ATG fails to meet any of the Key Milestones; or there is a change of Control of the ATG. CLIENT may terminate this Agreement and/or a specific Statement of Work on no less than 30 (thirty) days’ prior written notice. If CLIENT becomes entitled to terminate a Statement of Work under this clause 19 or otherwise, CLIENT may at its option and in its sole discretion terminate only the Services giving cause for concern in the Statement of Work, and the terms and conditions applicable to the remaining Services under the Statement of Work shall remain in full force and effect. If CLIENT exercises its right to terminate this Agreement and/or specific Statements of Work and/or certain Services, it shall be entitled to do so without any liability to make any further payment to the ATG, other than for the Charges due for Services agreed to be performed until the date of termination. To the extent that CLIENT has pre-paid Charges for any Services not provided or Deliverables not received or Deliverables rejected in accordance with clause 5.2, the ATG shall refund to CLIENT an amount equivalent to these Charges in full, free from set-offs, counterclaims and other deductions, within 15 (fifteen) days of termination.
19 CONSEQUENCES OF TERMINATION
19.1 On termination or expiry of this Agreement, howsoever arising, each Statement of Work then in force at the date of such termination shall also terminate, unless CLIENT provides specific written confirmation of any Statement of Work that it wishes to continue for its term (in which case such Statement of Work shall continue in full force and effect).
19.2 Termination of any Statement of Work, howsoever arising, shall not affect this Agreement or any other existing Statement of Work, which shall continue in full force and effect.
19.2.1 the ATG shall: (i) render all assistance reasonably required by CLIENT to facilitate the smooth transition of the Services to CLIENT or any replacement service provider appointed by it; (ii) comply with any Exit Plan; and (iii) subject to payment by CLIENT of such reasonable fee as the parties agree, provide familiarization training to CLIENT or its replacement ATG as applicable;
19.2.2 ATG shall immediately (or, to the extent that they’re required for any continuing Statement of Work(s), on termination or expiry of each such Statement of Work) provide to CLIENT (in a format and on media reasonably requested by CLIENT) all Output (whether complete or not), CLIENT Data, CLIENT Confidential Information, CLIENT Equipment, CLIENT Materials and any other materials, documents or equipment that belongs to any of the CLIENT Group, and if the ATG fails to do so any of the CLIENT Group may enter the ATG’s premises and take possession of them;
19.2.3 subject to clause 11.3, each party shall promptly (or, to the extent that they’re required for any continuing Statement of Work(s), on termination or expiry of each such Statement of Work) and securely destroy or delete the other party’s Confidential Information (including back-up copies) that is held by a party (and procure that the same is done by its subcontractors) and, on request, certify compliance to the other party;
19.2.4 the relationship of the parties shall cease and any obligations, rights or licenses granted under or pursuant to this Agreement shall cease to have effect, save to the extent expressly provided for in this Agreement ; and
19.2.5 any prior rights, remedies, obligations or liabilities that ATG or CLIENT has accrued prior to the termination or expiry of this Agreement or any Statement of Work shall not be affected.
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20 ANTI-BRIBERY
20.1 The ATG shall comply, and at all times maintain and enforce adequate policies and procedures designed to ensure compliance with, any Applicable Laws, including the Prevention of Bribery Ordinance (Cap 201).
20.2 The ATG represents and warrants that: (i) no undue financial or other advantage of any kind has been or will be given or received by the ATG or on its behalf in connection with the negotiation, conclusion or performance of any of this Agreement; and (ii) no foreign public official is an officer or employee of the ATG or has a direct or indirect interest in the ATG.
20.3 The ATG shall notify CLIENT: (i) promptly if it becomes aware, or has any suspicion, of any request or demand for any undue financial or other advantage of any kind given or received by the ATG or on its behalf in connection with the negotiation, conclusion or performance of any of this Agreement; or (ii) immediately if a foreign public official becomes an officer or employee of the ATG or acquires a direct or indirect interest in the ATG.
20.4 On CLIENT’s request, the ATG shall certify in writing signed by an officer of the ATG that it remains in compliance with this clause 20, providing such supporting evidence as CLIENT may reasonably request.
21 ASSIGNMENT
21.1 The ATG shall not assign, novate or otherwise dispose of or create any trust in relation to any or all of its rights and obligations under this Agreement without the prior written consent of CLIENT. The ATG shall immediately notify CLIENT if it undergoes, or plans to undergo, a change of Control.
21.2 CLIENT may not assign, novate or otherwise dispose of any or all of its rights and obligations under this Agreement without the consent of the ATG.
22 MISCELLANEOUS
22.1 Each party warrants, represents and undertakes that:
22.1.1 by entering into and performing its obligations under this Agreement, it is not and (for each Statement of Work) will not be in breach of any other agreement to which it is a party;
22.1.2 it has and will continue to have full capacity and all necessary licenses, permits and consents to enter into and perform this Agreement; and
22.1.3 this Agreement is and (for each Statement of Work) will be executed by a duly authorized representative of the relevant party.
22.2 The rights and remedies of a party in respect of this Agreement shall not be diminished, waived or extinguished by the granting of any indulgence, forbearance or extension of time to the other party, or by any failure of or delay in ascertaining or exercising any such rights or remedies. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy. Any waiver of any breach of this Agreement shall be in writing and shall not prevent the subsequent enforcement against such breach or be deemed to be a waiver of any subsequent breach.
22.3 Each right, remedy and obligation provided under this Agreement are in addition and without prejudice to any other right, remedy and/or obligation under this Agreement and/or those provided by law. For the avoidance of doubt, CLIENT’s right to Service Credits shall be in addition to, and not in substitution for, any other rights and/or remedies arising from the ATG’s failure to provide the Services in accordance with the terms of this Agreement. The ATG acknowledges that the Service Credits are in the nature of an adjustment of the Charges for a reduced service, and not CLIENT’s sole and/or exclusive remedy for breach.
22.4 The standard terms and conditions of either party’s business forms, including purchase orders and invoices, shall be without legal effect in transactions under this Agreement.
22.5 This Agreement shall not be varied except in writing signed by the parties.
22.6 This Agreement represents the entire agreement between the parties and supersedes and extinguishes all other contracts, promises, assurances, warranties, representations and understandings between the ATG and any of the CLIENT Group on the subject matter herein.
22.7 The ATG is not authorized, and shall not purport to be authorized, to create obligations binding on any of the CLIENT Group.
22.8 The ATG warrants that its responses to any of CLIENT’s Request for Information and/or Request for Proposal in relation to the Services are complete and accurate.
22.9 If any company, business or undertaking that is owned by any of the CLIENT Group ceases to be owned by the CLIENT Group at any time during the term of this Agreement (“Divested Business”) but requires continued use of the Services, at the request of the Divested Business, the ATG shall enter into an identical agreement to this Agreement with such Divested Business to provide use of the Services for at least one (1) year from the date the Divested Business ceases to be owned by the CLIENT Group. In such case, any minimum volume commitments under this Agreement shall be divided between CLIENT and such Divested Business, in such proportions as CLIENT shall determine in its sole discretion.
22.10 Neither party shall have any liability under or be deemed to be in breach of this Agreement for any delays or failures to perform where it is subject to a Force Majeure Event (“Affected Party”) provided that the Affected Party as soon as reasonably practicable following the commencement of the Force Majeure Event notifies the other party in writing and uses all reasonable endeavors to mitigate its effect. If the Force Majeure Event prevents the Affected Party from performing its obligations for a continuous period of 4 (four) weeks or more, the other party may terminate this Agreement or any or all Statement(s) of Work on giving 5 (five) Business Days’ written notice to the Affected Party.
22.11 The ATG shall immediately notify CLIENT if it becomes aware that it is in breach of any warranty set out in this Agreement and the steps it will be taking to remedy such breach.
22.12 The ATG shall do all acts and execute all documents (at the ATG’s cost and expense) as CLIENT requests to give full effect to this Agreement.
22.13 No one other than a party to this Agreement, their successors and permitted assignees, shall have any right (under the Contracts (Rights of Third Parties) Ordinance (Cap. 623) or otherwise) to enforce any of its terms. Notwithstanding this, any of the CLIENT Group who receives Services under this Agreement may enforce any term of this Agreement as if it was a party to it.
22.14 This Agreement and any Statement of Work may be executed in any number of counterparts, and counterparts may be exchanged by electronic transmission (including by email), each of which when executed shall constitute a duplicate original, but all of which shall constitute one and the same instrument. No counterpart shall be effective until each party has executed at least one counterpart of this Agreement or Statement of Work as applicable.
25.15 Should any provision of this Agreement be or become invalid, illegal or unenforceable, the parties agree to attempt to substitute for it a valid, legal and enforceable provision which achieves to the greatest extent possible the economic, legal and commercial objectives of such provision. If such substitution is not possible, the relevant provision shall be deemed deleted. Any substitution or deletion of a provision under this clause shall not affect the validity or enforceability of the rest of this Agreement.
22.16 Any notice or other document to be served under the Agreement must be in writing, addressed to CLIENT’s Representative or the ATG’s Representative at the address contained in the Contract Details as applicable, and must be delivered by: (i) prepaid registered post or airmail; and (ii) also by email. Any notice or document shall be deemed served, if delivered, at the time recorded by the postal/airmail delivery service. This clause 22.16 does not apply to the service of any proceedings or other documents in any legal action, arbitration or other form of dispute resolution.
22.17 The Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of Hong Kong Special Administrative Region (SAR). Without prejudice to the dispute resolution procedure set out at clause 16, each party irrevocably agrees that the courts of Hong Kong SAR shall have non-exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Agreement or its subject matter or formation.
22.18 If there is an agent set out in the Contract Details, the ATG irrevocably appoints this agent to receive on its behalf in Hong Kong SAR service of any proceedings under clause 22.17 above. Such service shall be deemed completed on delivery to such agent (whether or not it is forwarded to and received by the ATG) and shall be valid unless, prior to such delivery, CLIENT has received written notice from the ATG that such agent has ceased to act as agent. If for any reason such agent ceases to be able to act as agent or no longer has an address in Hong Kong, the ATG shall promptly appoint a substitute acceptable to CLIENT and confirm in writing to CLIENT the new agent's name and address within Hong Kong.
22.19 The parties have executed this Agreement in the Contract Details.
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