Firely Terms of Service for Consultancy
Version 2.0, November 15, 2023
These Terms of Service for Consultancy (“Service Terms”) govern the supply of services provided by Firely USA, Inc., a Delaware corporation with offices located at 228 East 45th Street, Suite 9E, New York, NY 10017, USA, to Customer related to consultancy, secondment, and training. Firely USA, Inc. and Customer may be referred herein collectively as the “Parties” or individually as a “Party”.
All other Customers
These Service Terms govern the supply of services provided by Firely B.V., with its registered offices at Westerdok 442, 1013 BH Amsterdam, The Netherlands, to Customer related to consultancy, secondment, and training. Firely B.V. and Customer may be referred herein collectively as the “Parties” or individually as a “Party”.
- “Business Days” means any day other than Saturday, Sunday, or a public holiday in the United States (for US Customers) and in the Netherlands (for all other Customers).
- “Contract” means a written agreement between the Parties for Services.
- “Consultant” means any specific Firely employee, agent, or personnel identified in the Contract who performs Services for the Customer.
- “Customer” means any person or entity that executes a Contract with Firely B.V. or Firely USA, Inc.
- “Firely” means Firely B.V., with its registered offices at Westerdok 442, 1013 BH Amsterdam, The Netherlands and Firely USA, Inc., a Delaware corporation with offices located at 228 East 45th Street, Suite 9E, New York, NY 10017, USA
- “Services” means all services provided by Firely to Customer related to consultancy, secondment, and training.
Applicability of the Service Terms
- These Service Terms apply to all Services provided by Firely to Customer.
- Firely reserves the right to amend these Service Terms at any time. The most recent version of the Service Terms shall be available on the corporate website (http://www.fire.ly.) Customer will be notified by email of any upcoming amendments to the Service Terms. Amendments shall become effective on the date specified when the Service Terms are published. If Customer does not agree to the modified Service Terms, Customer must immediately cease use of the Services. Any derogations from the Service Terms shall only be valid if expressly agreed to in a writing signed by an authorized representative of the Parties.
- These Service Terms shall always take precedence over any terms and conditions of Customer which shall not be enforceable against Firely. No other terms and conditions shall be binding on Firely unless accepted by it in a signed writing. Firely expressly rejects any general terms and conditions used by Customer. Customer may issue a purchase order for administrative purposes only. Additional or different terms and conditions contained in any such purchase order will be null and void and shall not bind Firely.
Advisory and consultancy services
- The completion time for any Services depends on various factors and circumstances, such as the information provided and the cooperation rendered by Customer and relevant third parties. Unless otherwise agreed in writing, Firely does not commit to completing the Services by a specific date or during a specific time period.
- The use that Customer makes of the Services rendered by Firely shall be at Customer’s risk. Firely only warrants that the Services shall be performed in a timely, workmanlike, and professional manner in accordance with generally recognized industry standards for similar services.
- Without Firely’s prior written consent, Customer shall not disclose to any third-party Firely’s methodologies, techniques, or the content of Firely’s Services, advice, or reports.
- Firely shall makes the Consultant available to perform Services at Customer’s direction and under its supervision. The results obtained by these Services are at Customer’s risk. Firely disclaims any liability for the quality of the results produced by the Services performed at Customer’s direction and under its supervision.
- Unless otherwise agreed in writing, the Consultant shall be available to Customer 40 hours per week during Firely’s normal working hours.
- Customer shall not use the Consultant to perform any activities other than the Services provided in the Contract, unless Firely has agreed to the performance of such activities in advance and in writing.
- Firely shall ensure that the Consultant remains available to perform Services for the duration of the Contract on the days agreed to between the Parties, except in the event of the Consultant’s illness or if the Consultant’s employment is terminated or the Consultant voluntarily resigns such employment. Furthermore, if the Contract specifies a particular Consultant to perform the Services, Firely reserves the right to replace this Consultant with another Consultant of similar qualifications and experience in Firely’s sole discretion.
- Customer may request that the Consultant be replaced: (i) if the Consultant fails to meet the specific quality requirements agreed to between the Parties and Customer provides notice Firely within three Business Days following commencement of the work; (ii) in the event of a prolonged illness of the Consultant; or (iii) if the Consultant’s employment is terminated by Firely or the Consultant voluntarily resigns such employment. Firely shall promptly respond to such a request by Customer. Firely does not guarantee that the Consultant will be replaced. If the Consultant cannot be replaced in a reasonable time period, Firely shall have no further performance obligations under the Contract and Customer disclaims and waives any claims of non-performance against Firely. Customer’s payment obligations with respect to Services already performed by Firely shall continue to apply in full.
Secondment: length of the working week and working hours
- The work hours, rest periods, and length of the work week of the Consultant shall be the same as Customer’s normal work hours, rest periods, and length of the work week. Customer represents and warrants that the work hours, rest periods, and length of work week comply with applicable law.
- Customer shall inform Firely relating to any intended temporary or permanent closure of its company or organization. Customer shall comply with applicable law relating to workplace safety and work conditions.
- If based on an agreement between the Parties the Consultant works more hours per day than Firely’s normal working hours or works on days other than Firely’s normal working days, the overtime rate shall be payable by Customer or, if no overtime rate is agreed to between the Parties, the rate shall be the normal overtime rate paid by Firely. At Customer’s request, Firely shall inform Customer about its current overtime rates.
- Customer shall be responsible for expenses and travel in accordance with Firely’s rules and standards as specified in the Contract.
- All intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, “Intellectual Property Rights”) in and to all documents, work product and other materials that are delivered to Customer under a Contract or prepared by or on behalf of the Firely in the course of performing the Services (collectively, the “Deliverables”) except for any Confidential Information of Customer or customer materials shall be owned by Firely. Firely hereby grants Customer a license to use all Intellectual Property Rights in the Deliverables free of additional charge and on a non-exclusive, worldwide, non-transferable, non-sublicensable, fully paid-up, royalty-free and perpetual basis to the extent necessary to enable Customer to make reasonable use of the Deliverables and the Services.
- Notwithstanding the above, Customer shall acquire all Intellectual Property Rights that arise from any secondment Services and Deliverables delivered to Customer as a part of such Services.
- Customer shall pay invoices within thirty (30) days of the invoice date and to a bank account indicated by or on behalf of Firely. Payment shall be made without any discount or setoff.
- All fees are in Euros or US Dollars as applicable and exclusive of all taxes, levies, or duties imposed by taxing authorities. Firely may adjust the fees for renewal of any Contract in its sole discretion (e.g., based on inflation or rising prices). Firely will notify Customer in advance of any upcoming price changes.
- Payment is non-refundable. The Customer shall not be entitled to any refunds or credits unless agreed to by Firely.
- Customer shall not be liable for payment of wages to Firely’s consultants or for payment of social insurance premiums and wage taxes.
- If Customer fails to make any payment when due, without limiting Firely’s other rights and remedies: (i) Firely may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Customer shall reimburse Firely for all costs incurred by Firely in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (iii) Firely may immediately suspend and/or terminate (tussentijds opzeggen) the Services until such amounts are paid in full.
- If Customer fails to meet any of its obligations towards Firely and has not cured such a failure, even after having been notified of such a breach by Firely, Firely may, in its sole discretion, suspend the performance of its obligations towards Customer or discontinue the Services until Customer has cured the breach or has furnished to Firely, in Firely’s view, adequate security relating to the performance of its obligations. Firely may also, without liability to Customer, change the applicable payment terms and/or demand sufficient security before performing any other or new Services.
- Customer shall not suspend or set off its payment obligations towards Firely in connection with any claims it may have against Firely, unless Firely provides its express written consent.
- FIRELY DISCLAIMS ANY AND ALL RESPONSIBILITY OR LIABILITY IN RELATION TO FIRELY’S SERVICES. NEITHER FIRELY NOR ITS OFFICERS OR AFFILIATES MAY BE HELD LIABLE WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER FORM OF LIABILITY FOR ANY CLAIM, DAMAGE, OR LOSS, (AND CUSTOMER HEREBY WAIVES ANY AND ALL SUCH CLAIMS OR CAUSES OF ACTION), ARISING FROM OR RELATING TO ALL SERVICES.
- IN NO EVENT SHALL FIRELY, ITS AFFILIATES OR ITS LICENSORS BE LIABLE, HOWEVER CAUSED AND WHETHER ARISING UNDER CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER FORM OF LIABILITY, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF INCOME, BUSINESS, SALES, PROFITS (WHETHER ACTUAL OR ANTICIPATED), LOSS OF OR CORRUPTION TO DATA, OR INTERRUPTION OF BUSINESS.
- NOTWITHSTANDING ANYTHING ELSE IN THESE SERVICES TERMS TO THE CONTRARY, EXCEPT FIRELY’S INTENTIONAL MISCONDUCT OR GROSS NEGLIGENCE, FIRELY’S AGGREGATE LIABILITY FOR ALL CLAIMS OF ANY KIND (INCLUDING ANY GUARANTEE COMMITMENTS OR INDEMNITY OBLIGATIONS) SHALL NOT EXCEED THE TOTAL PAID BY CUSTOMER DURING THE TWELVE (12) MONTHS PRECEDING THE DATE ON WHICH THE DAMAGING EVENT OCCURRED. IN ANY EVENT, FIRELY’S TOTAL AGGREGATE LIABLITY SHALLY NOT EXCEED US$ 50,000 FOR US CUSTOMERS OR €50,000 FOR NON-US CUSTOMERS.
- THE LIMITATIONS ON FIRELY’S LIABILITY ABOVE SHALL APPLY WHETHER OR NOT FIRELY, ITS EMPLOYEES, CONSULTANTS, LICENSORS OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES ARISING.
- UNLESS PERFORMANCE IS IMPOSSIBLE FOR A PARTY TO PERFORM UNDER APPLICABLE LAW, LIABILITY OF THAT PARTY FOR BREACH OF ITS OBLIGATIONS UNDER THE CONTRACT OR THESE TERMS SHALL ONLY ARISE IF IT IS PROVIDED NOTICE OF SUCH A BREACH BY THE OTHER PARTY AND IF IT IS HAS FAILED TO CURE THE BREACH WITHIN A REASONABLE PERIOD OF TIME. THE NOTICE OF BREACH SHALL CONTAIN A DETAILED DESCRIPTION OF THE FAILURE SO THAT THE PARTY THAT HAS FAILED TO MEET ITS OBLIGATIONS CAN CURE ITS BREACH.
- ANY RIGHT TO COMPENSATION FOR DAMAGES IS CONDITIONAL ON THE NON-BREACHING PARTY PROVIDING NOTICE OF THE BREACH IN WRITING TO THE OTHER PARTY AS SOON AS REASONABLY POSSIBLE BUT NO LATER THAN FIVE (5) BUSINESS DAYS AFTER THE DAMAGING EVENT OCCURRED. ANY CLAIM FOR COMPENSATION FOR DAMAGES SHALL LAPSE UPON THE EXPIRATION OF A PERIOD OF TWELVE (12) MONTHS AFTER THE DAMAGING EVENT AROSE, UNLESS THE NON-BREACHING PARTY HAS INSTITUTED LEGAL ACTION FOR COMPENSATION BEFORE THE EXPIRATION OF THIS TWELVE-MONTH PERIOD.
- CUSTOMER AGREES TO INDEMNIFY, DEFEND AND HOLD FIRELY, ITS PRESENT AND FUTURE OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, CONSULTANTS, AGENTS AND ITS AFFILIATES HARMLESS FROM AND AGAINST ANY AND ALL THIRD-PARTY CLAIMS, DEMANDS, LOSSES, DAMAGES, PENALTIES, LIABILITY AND COSTS, INCLUDING REASONABLE ATTORNEYS’ FEES, IN CONNECTION WITH OR ARISING OUT OF OR RELATING TO THE SERVICES OR BREACH OF THESE SERVICE TERMS OR A CONTRACT.
- In no event will either Party be liable or responsible to the other Party, or be deemed to have defaulted under or breached these Service Terms or any Contract, for any failure or delay in fulfilling or performing any term or contractual provision, (except for any obligations to make payments), when and to the extent such failure or delay is caused by any circumstances beyond such party’s reasonable control (a “Force Majeure Event“), including (i) acts of God; (ii) flood, fire, earthquake, epidemics, or explosion; (iii) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (iv) government order, law, or actions; (v) embargoes or blockades in effect on or after these Terms become effective; (vi) national or regional emergency; (vii) strikes, labor stoppages or slowdowns, or other industrial disturbances; (viii) shortage of adequate power or transportation facilities; (ix) defective condition of items, hardware, software or material of third parties which Customer advised Firely to use; and (x) bankruptcy or delays on the part of suppliers or subcontractors and failure by the Customer to provide Firely with the correct and complete information necessary to properly provide the Services. If a Force Majeure Event occurs either Party may temporarily suspend the performance of its obligations under these Terms.
- Either Party may terminate (ontbinden) a Contract if a Force Majeure Event affecting the other Party continues substantially uninterrupted for a period of 60 days or more. Customer shall pay all fees incurred for the Services that have already been performed by Firely prior to suspension and/or termination of a Contract due to a Force Majeure Event.
Term and Termination
- These Service Terms shall become effective upon: (i) acceptance by Customer; (ii) execution of a Contract by the Parties; or (iii) purchase of any Services by Customer, whichever occurs first.
- These Service Terms shall continue in effect until: (i) Customer no longer has access to use the Services; or (ii) a Contract is terminated earlier as provided under these Terms.
- Customer may terminate (opzeggen) a Contract that has an indefinite term by written notice of termination to Firely. Customer must provide thirty (30) days’ notice prior to termination. If a Contract has a specific term, expect as provided below, Customer may not terminate the Contract before the expiration of the term. If the Contract is not terminated before the expiration of the term, it shall automatically renew for the same contractual term unless otherwise agreed to by the Parties. Customer must provide thirty (30) days’ notice to Firely of its intent to terminate a Contract.
- Either Party may terminate (ontbinden) a Contract, effective on written notice via email to the other Party, if the other Party materially breaches a Contract or these Terms and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured for 30 days after the non-breaching Party provides the breaching Party with written notice of such breach.
- Either Party may terminate a Contract, effective immediately upon written notice (opzeggen) via email, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
- If notice is received by Firely before the end of the current month or year, which has already been paid by Customer, the termination will take effect immediately and Customer will not be charged for the next month or year.
- This Section 10.7 and Sections 1, 6, 7, 8, 11, 12, and 13 of these Terms, and any other provision of these Service Terms or a Contract that would by its nature survive expiration or earlier termination of any Contract, shall continue in full force and effect.
- From time to time either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under these Service Terms, including to make required court filings. On the expiration or termination of these Service Terms, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of date these Services Terms become effective and will expire two years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of these Services Terms for as long as such Confidential Information remains subject to trade secret protection under applicable law.
- Notwithstanding the confidentiality obligations in this Section 11, Firely may use and/or commercialize any ideas, input, or feedback received from Customer related to the Services for its own business purposes.
Applicable Law and Dispute ResolutionUS Customers (Sections 12.1-12.2)
All other Customers (Sections 12.3-12.5)
- Unless stated otherwise in writing, these Service Terms and any Contract between the Parties shall be governed by and construed in accordance with the laws of the State of New York, notwithstanding conflict of law principles, and without giving effect to the United Nations Convention on the Contracts for the International Sale of Goods.
- The Parties agree that any and all disputes, claims or controversies arising out of or relating to these Service Terms and Contract shall be submitted to JAMS, or its successor, for mediation, and if the matter is not resolved through mediation, then it shall be submitted to JAMS, or its successor, for final and binding arbitration. Any dispute, controversy or claim arising out of or relating to these Service Terms and any Contract, or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, will be referred to and finally determined by arbitration in accordance with the JAMS Comprehensive Arbitration Rules and Procedures. The seat of the arbitration will be New York, New York. The arbitration shall be administered for a single arbitrator. The language to be used in the arbitral proceeding will be English. Judgment upon the award rendered by the arbitrator may be entered by any court having jurisdiction thereof. ANY CAUSE OF ACTION AGAINST FIRELY, REGARDLESS WHETHER IN CONTRACT, TORT OR OTHERWISE, MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
- Unless stated otherwise in writing, these Service Terms and any Contract between the Parties shall be governed by and construed in accordance with the laws of the Netherlands, and without giving effect to the United Nations Convention on the Contracts for the International Sale of Goods.
- The Parties agree that any and all disputes, claims or controversies arising out of or relating to these Service Terms and any Contract shall first be submitted to the Foundation for the Settlement of Automation Disputes (Stichting Geschillenoplossing Automatisering), (http://sgoa.eu/en/ with offices in Heemstede, the Netherlands) (SGOA) or its successor, for ICT Mediation. The other Party must actively participate in the ICT Mediation, which means attending one joint meeting between the mediator(s) and the Parties. Each Party may terminate the ICT Mediation procedure at any time following the joint meeting. Notwithstanding this Section, either Party may seek preliminary relief through arbitral proceedings or in a court of law, and may take conservatory measures (e.g., attachment) if necessary.
- Any dispute, controversy or claim arising out of or relating to these Service Terms, any Contract, or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, which is not resolved through mediation, will be referred to and finally determined by arbitration in accordance with the Arbitration Rules of SGOA, or its successor. The seat of the arbitration will be Heemstede, the Netherlands. The arbitration shall be administered for a single arbitrator. The language to be used in the arbitral proceeding will be English. Judgment upon the award rendered by the arbitrator may be entered by any court having jurisdiction thereof. ANY CAUSE OF ACTION AGAINST FIRELY, REGARDLESS WHETHER IN CONTRACT, TORT OR OTHERWISE, MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED. Either Party may seek preliminary relief through arbitral proceedings or in a court of law, and may take conservatory measures (e.g., attachment) if necessary.
- Waiver. The failure to exercise, or delay in exercising, a right, power or remedy provided by a Contract or these Service Terms or by law shall not constitute a waiver of that right, power or remedy. If Firely waives a breach of any provision of these Service Terms or a Contract, this shall not operate as a waiver of a subsequent breach or that provision or as a waiver of a breach of any other provision.
- Severability. If any provision of these Services Terms is invalid, illegal, or unenforceable in any jurisdiction or before any arbitral tribunal, such invalidity, illegality, or unenforceability will not affect any other term or provision of these Services Terms or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify these Services Terms so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
- Assignment. Customer is not permitted to assign, delegate or otherwise transfer the any rights or obligations arising under these Service Terms without Firely’s prior written consent. Any such attempted assignment, delegation or transfer will be null and void. Firely is permitted at its sole discretion to assign any rights or obligations arising under these Service Terms to any third party without giving prior notice.
- No Beneficiaries. Any agreement between the Parties is for the sole benefit of the Parties thereto and, except as otherwise contemplated therein, nothing therein expressed or implied shall give or be construed to give any person, other than the Parties thereto, any legal or equitable rights thereunder.
- No Partnership. Nothing contained in any agreement between the Parties shall be read or construed so as to constitute the relationship of principal and agent or of partnership between the Parties. Neither of the Parties may pledge or purport to pledge the credit of the other Party or make or purport to make any representations, warranties, or undertakings for the other Party.
- Injunctive Relief. Customer acknowledge that Firely shall suffer irreparable injury in case of breach of the obligations under Sections 6 and 11. Accordingly, in the event of such breach, Customer acknowledges that Firely will be entitled to injunctive relief in any arbitral tribunal or court of competent jurisdiction. Customer further submits to the personal jurisdiction of such courts for the purposes of any such action.