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General Terms & Conditions - version Five (2024)
These General Terms & Conditions of Xebia apply to the Services Xebia performs and all agreements Xebia enters into with its Client and apply to
any specific Service as specified in the SoW(s).
Xebia and Client may each be referred to as a “Party” or collectively as the “Parties”.
1. Definitions enhancements, software, source code, object code, interfaces,
concepts and methods, websites, applications, data files, databases,
In these General Terms & Conditions, the following information, hardware, training materials, testing materials,
definitions are applicable: analyses, designs, documentation, reports and any updates,
upgrades, and improvements and innovations therein.
For the purpose of this Section, 1.12. “New IPR” means all IPR - other than Xebia Existing
IPR - resulting from the Services.
1.1. “Affiliate” is defined as those persons or entities 1.13. “Services” means all services Xebia performs including
located in various countries throughout the world which directly, or without limitation information technology professional, outsourcing,
indirectly, individually or in combination, Control, are Controlled by, and consultancy services in general as set forth in a SoW.
or are under common Control with Xebia’s or the Client’s ultimate
parent company. 1.14. “Subcontractor” means either an Affiliate of Xebia, or
an independent contractor, respectively, which is qualified to
1.2. “Agreement” means these Terms together with each perform the applicable Services as contemplated by the Agreement,
applicable SoW, which will each represent a separate and entire and has been contracted by Xebia accordingly, as evidenced by an
agreement between Xebia (or Xebia’s Affiliate) and the Client (or agreement in writing.
Client’s Affiliate) regarding the subject matter hereof.
1.15. “SoW” means a statement of work or other similar
1.3. “Control” means ownership of more than 50% interest agreement(s) specifying the applicable Services and which
of voting securities in an entity or the power to direct the incorporate these Terms by way of reference.
management and policies of an entity.
1.16. “Term” means the term as specified in the SoW.
1.4. “Client” means the organisation or company with whom
the Agreement is entered into. 1.17. “Terms” means these General Terms & Conditions for
Services.
1.5. “Confidential Information” means any information
related to the Services disclosed by the Client to Xebia and by Xebia 1.18. “Xebia” means the entity specified as such in a SoW
to the Client, respectively, either directly or indirectly. Confidential and/or the entity as mentioned above (where applicable).
Information may include, by way of example but without limitation,
products, specifications, formulae, equipment, formulas, models, 1.19. “Xebia IPR” means both Xebia Existing IPR and New
employee interviews, records, quality monitoring IPR, excluding any third party IPR owned by Xebia’s suppliers or
schemes/programs, training materials, business strategies, licensors.
customer lists, know-how, drawings, pricing information, inventions,
1.20. “Xebia Existing IPR” means all IPR existing and
ideas, personal data and other information, or its potential use, that
vested in Xebia, its licensors and/or suppliers prior to the moment
is owned by or in possession of the Client and Xebia, respectively.
of provision of the Services for which the Intellectual Property rights
1.6. “CPI” means Consumer Price Index published by the are used (and whether or not incorporated or embedded in the
Government Authorities of the country wherein the Services are (elements of the) Materials), but excluding any New IP Rights.
performed.
2. Considerations
1.7. “Effective Date” means (a) in case these Terms are
2.1. The provisions of these Terms shall be implemented by
signed by both the Parties, the date on which these Terms are last
Xebia and Client, and/or their respective Affiliates entering into
signed in writing/electronically; and (b) in case these Terms are
SoWs, modified as may be necessary. When an Affiliate of Client or
incorporated by way of a hyperlink into or enclosed to a SoW signed
Xebia executes a SoW under the Terms, all references to “Client” or
by both the Parties, the Effective Date as set forth in the SoW.
“Xebia” in these Terms will refer to the Client’s or Xebia’s respective
1.8. “Expenses” will have the meaning as specified in the Affiliate who is a party to the applicable SoW.
Expenses Section of these Terms.
2.2. When Affiliates of Xebia are providing the Services
1.9. “Fees” means the charges for Services exclusive of directly to the Client or a Client’s Affiliate under a SoW, the terms
taxes as further specified in the applicable SoW. and conditions of the Agreement (including limitations of
responsibilities and/or liabilities) shall extend to all such current and
1.10. “Intellectual Property Rights” or “IPR” means all future Affiliates of Xebia. Both Parties agree that (i) each Party or
rights in and related to brands, logos, trademarks, trade names, its Affiliate is a separate and distinct legal entity; and (ii) each Party
service marks, (internet) domain names, models and designs, or its Affiliate shall be solely responsible for its actions (or omissions)
(technical) know-how, innovations, discoveries, compositions, hereunder.
artwork, combinations, techniques, technical developments,
information (whether or not protectable under copyright laws of any 2.3. The termination of these Terms will not terminate the
jurisdiction), patents, copyrights (including all rights relating to application of these Terms for purposes of then existing SoW(s)
software) and including updates and upgrades of copyrighted between Xebia (and/or its Affiliates) and Client (and/or its Affiliates).
materials, rights relating to databases, semiconductor topographies, Any and all claims in respect of a SoW against Xebia or its Affiliates
and moral rights, as well as all other industrial and intellectual rights, shall only lie against the respective entity being a party to the
in any case independent from whether or not they have been respective SoW i.e. either Xebia or its respective Affiliate. Other
registered and with the inclusion of registration applications as well general terms and conditions are hereby expressly rejected.
as all equivalent rights or means of protection (e.g. trade secrets)
2.4. A SoW is effective only if both Parties have accepted and
leading to a similar result anywhere in the world.
signed the SoW. Commitments from or agreements with Xebia’s
1.11. "Materials” means all materials owned by Xebia and/or personnel or third parties engaged by Client for a specific SoW are
its Affiliates delivered, licensed or developed, to be delivered or only enforceable when Xebia has confirmed such commitments
otherwise made available by Xebia to the Client under the and/or agreements in writing by its duly authorized representative.
Agreement, such as but not limited to: accelerators, tools,
Xebia General Terms & Conditions – version Five (2024) Page 1 of 7
2.5. Each Party may propose changes to these Terms from for Xebia to enable the proper execution of the Services in a timely
time to time owing to change in circumstances and business manner in order to enable the proper execution of the Services.
practices. Party proposing a change will inform the other Party Client guarantees the accuracy and completeness of the data,
thereof by e-mail. In such case, Parties will in good faith enter into information, designs and specifications provided by it to Xebia. Prior
discussion to explore the possibility of incorporating the essence of to the execution of Services, Client shall have provided Xebia with
the changes in the form and manner acceptable to both Parties. If all necessary information.
the Parties agree on the changes, these changes will take effect
when Parties recorded them in writing by way of an amendment 4.5. The Client hereby accepts that the time schedule
duly signed by the Parties. allocated for the performance of the Services may be subject to
change in case of amendment to the Services and/or the Services
2.6. If any part of this Agreement is held to be unenforceable to be provided thereunder after conclusion of the Services.
or waived, in whole or in part, such holding will not affect the validity
of the other parts of this Agreement. 4.6. Where applicable, the Client guarantees that Xebia’s
employees deployed at Client’s premises shall at all times work
2.7. These Terms supersede any and all prior oral and under safe conditions, in accordance with the relevant occupational
written quotations, communications, agreements and health and safety regulations and gender based workplace
understandings of Parties and shall apply in preference to and regulations as well as environmental rules, and Client shall
supersede any and all terms and conditions of any order placed by indemnify Xebia against all losses, expenses or damages arising
the Client and any other terms and conditions submitted by the from or relating to this guarantee by the Client.
Client. Failure by Xebia to object to terms and conditions set by the
Client shall, in no event be construed as an acceptance of any terms 4.7. Client permits Xebia to identify itself before any third
and conditions of the Client. Neither Xebia’s commencement of party as a reseller, distributor, supplier, and/or service provider to
performance nor Xebia’s delivery of Services shall be deemed or the Client when supplying or using such third party's
constituted as acceptance of any of Client’s terms and conditions. products/services within the Agreement. This allows Xebia to link
Any communication or conduct of the Client which confirms an identifier of the respective Party to the third party's
agreement for the provision of Services by Xebia, as well as products/services supplied/in use for the Client, to achieve
acceptance by the Client of any provision of Services from Xebia recognition on the revenue attribution that is needed for any
shall constitute an unqualified acceptance by the Client of these partnerships with such third party.
Terms.
5. Intellectual Property Rights
3. Fees
5.1. It is understood that Xebia and/or its suppliers and/or
Fees shall be agreed between the Parties in respective SoWs. Unless
licensors shall own all of the Xebia IPR, including those subsisting in
agreed otherwise in a SoW:
or arising in connection with the Services and/or Materials. Client is
granted the license to use the Materials as specified in Section 5.4.
3.1. When Parties agree on any change(s) to the scope of Client shall have no rights in Xebia IPR other than those specifically
work and any extra work over and above what is agreed in a SoW, granted under the Agreement and the Client at no point of time can
the same shall be charged extra atleast at Xebia’s then prevailing claim any other rights with regard to the Xebia IPR either by way of
rates for such Services as may be notified by Xebia. If the Client compensation, royalty or otherwise in any form or manner, unless
doesn’t object within a 5 workdays period, the then prevailing rates and to the extent specifically agreed otherwise, in writing in the
will take effect. Agreement.
3.2. All Fees shall be non-refundable. 5.2. In case of Professional Services (as defined in the
applicable SoW), Xebia undertakes to transfer New IPR subsisting
3.3. Any extra costs arising from or related to any in or arising in connection with (elements of the) Materials, to the
unreasonable delays in the completion of the Services stemming Client. Such undertaking may only be explicitly effected in writing in
from the failure of the Client to duly make available to Xebia the the SoW by clearly identifying New IPR and transfer shall always be
requested information and documentation, shall be fully borne by subject to Client’s payment in full of the applicable Fees and any
the Client. Xebia will exercise commercially reasonable efforts in other costs or expenses, taxes or charges due by Client to Xebia.
good faith to minimize such extra costs. Such New IPR are transferred “AS IS” and without express or
3.4. Client shall pay all taxes, duties and other charges implied warranties of any kind.
assessed by government authorities in connection with the provision 5.3. Any rights, title or interest in or relating to any Xebia
of Services under the Agreement. Existing IPR and any third party IPR shall never be transferred and
3.5. Xebia reserves the right to apply as a minimum an the Agreement shall never be deemed or construed to transfer
indexation increase to its Fee(s) for Services on January 1 st of each ownership in whole or in part of any such Xebia Existing IPR and/or
year. The CPI indexed by Xebia will be that of October of the third party IPR and this shall be irrespective of the Xebia Existing
preceding year as published by the government authority of the IPR and/or the third party IPR being incorporated or embedded in
country where the Services are being performed. the (elements of the) Materials.
4. Performance 5.4. Upon payment in time by the Client of the agreed Fees,
Xebia grants the Client for the term of the Agreement (unless a
4.1. Xebia has a commercially reasonable efforts obligation different term has been agreed upon in writing in the Agreement) a
to deliver the Services and/or Materials and where appropriate, in non-exclusive, non-transferable, non-pledgeable and non-
accordance with generally accepted industry standards. Only when sublicensable license to use the Materials under the conditions laid
Xebia is expected to deliver a certain result with or without specified down in the Agreement. The license to use is limited to use solely
means as part of the Services, the same must be agreed and for Client’s internal business purposes and not for any other use,
described with sufficient determinability in an applicable SoW. including without limitation for any (re)sale or any other commercial
exploitation, except prior and explicit written consent of Xebia.
4.2. The Client will provide Xebia and its employees with
access to all locations, systems, environments, Client personnel, 5.5. Software shall only be licensed in machine-readable
hardware, and software as necessary to properly perform the form, unless specifically agreed otherwise in the Agreement.
Services.
5.6. The Client acknowledges that the products, software
4.3. During performance of the Services, the Parties will and Services delivered by Xebia to Client (whether or not
continue to provide each other with information, data, material, incorporated or embedded in the Materials), may contain (elements
content, and/or documentation that may reasonably affect the of) third party products, software and/or services and/or third party
duration, quality, price and/or scope of the Services. IPR, including open source software, freeware and output created
by means of artificial intelligence (tooling). The Client further
4.4. The Parties acknowledge that success of the Services to acknowledges and agrees that (a) the third party products, services
be carried out by Xebia depends on proper and timely mutual and/or software may be subject to specific (license) terms of the
cooperation between the Parties involved. Client shall always respective author or licensor, and (b) it hereby accepts the terms of
provide all reasonable cooperation, data or information necessary such third party (software license) terms. Xebia will indicate in the
Xebia General Terms & Conditions – version Five (2024) Page 2 of 7
Agreement if such third party’s products, services and/or software websites and/or data files and/or databases and/or tools,
are included in the products, Services and/or software delivered by applications, hardware, analyses, designs, documentation, reports
Xebia and will inform Client about such third party license terms. and/or any other materials and/or designs and the like (“Client
The terms and conditions of these third parties shall prevail over the Materials”) that are made available to Xebia for the performance of
Agreement, in so far it Services and delivery of the Materials and Client guarantees that it
has obtained or will obtain any required license or consent with
concerns these third-party products, software or services. respect to any means Xebia may need. In case of any claim by a
third party which is based on an alleged infringement of any right
5.7. Xebia is permitted to take technical measures to protect
of that third party by any of the means that Client Materials have
the Materials which the Client is granted access to (partially or in
been made available by Client to Xebia for the performance of the
full), in the context of an agreed upon restriction in the content or
Services, Client will try to resolve such claim and indemnify Xebia
the duration of the right to use these objects. The Client may not
from such third-party claims, provided: (a) the claim is based on an
remove or circumvent these technical measures or have these
alleged, direct infringement by Client Materials of a right which that
removed or circumvented.
third party can enforce in the country where Client Materials are
5.8. When providing the Services and creating the Materials, delivered to Xebia, and b) that Xebia gives the Client (i) prompt
Xebia shall be entitled to use generative artificial intelligence (“AI”) written notice of such claim, (ii) authority to control and direct the
tooling and is allowed to incorporate input from the Client with the defense and all related settlement negotiations, of such claim, and
output generated by such tooling in Materials. Xebia will take (iii) provides assistance to such claim as Client may reasonably
commercially reasonable precautions to ensure that the output of request, in connection with such defense or settlement. To that
the generative AI tooling and the Material(s) in which it is purpose Xebia must grant Client the required powers-of-attorney
incorporated does not infringe any third party’s IPR, which and provide Client with any assistance it may require.
precautions include enabling any duplicate detection filtering or
similar functionalities offered by the generative AI tooling provider. 5.15. Notwithstanding the foregoing, indemnifying Party shall
not settle any third-party claim against indemnified Party unless
Xebia will diligently review, test, and if necessary, modify the AI-
such settlement completely and forever releases indemnified Party
generated output to align with agreed security protocols, coding
with respect thereto or unless indemnified Party provides its prior
standards, and Xebia’s internal guidelines on the development of
written consent to such settlement. In any action for which
software.
indemnifying Party provides defense on behalf of indemnified Party,
5.9. To Xebia’s best knowledge and belief Xebia IPR does not indemnified Party may participate in such defense at its own
infringe any third-party IPR. If a third-party claims that the Materials expense by counsel of its choice.
infringe a third-party Intellectual Property Right, Client must
5.16. To the extent (elements of the) Materials contain Xebia’s
promptly notify Xebia thereof in writing, and in any event not later
or third party’s or Client’s Confidential Information as mentioned in
than 10 days of the Client becoming aware of such claim. Xebia will
Section 1 of these Terms, it shall be subject to Section 9 of these
try to resolve such claim and indemnify Client from such third-party
Terms. The Client is not entitled to remove or alter any reference to
claims, provided: (a) the claim is based on an alleged, direct
the confidential nature or notices of the relevant IPR, such as
infringement by the Materials of an IPR which that third party can
copyrights and trademarks and the like.
enforce in the country where Materials are delivered to the Client,
and b) that Client gives Xebia (i) prompt written notice of such claim,
(ii) authority to control and direct the defense and all related 6. Employees
settlement negotiations, of such claim, and (iii) provides assistance
to such claim as Xebia may reasonably request, in connection with
6.1. Unless stated otherwise by law, Xebia’s employees
such defense or settlement. To that purpose the Client must grant
always remain under the management and supervision of Xebia.
Xebia the required powers-of-attorney and provide Xebia with any
assistance it may require. In case Xebia is working on a generative 6.2. Xebia will ensure that Xebia employees appointed to
AI license owned by Client, Client will first exhaust all legal remedies perform the Services possess the qualifications, knowledge and
with the generative AI tooling provider (in the event of a potential expertise needed to properly perform the Services. Each Party will
infringement claim) before turning to Xebia. be, and act as, an independent contractor and not as an agent or
partner of, or joint venture with, the other Party for any purpose
5.10. Upon the occurrence of a claim mentioned in the
related to the Services or any other work. Neither party is authorized
previous section, or in the event that Xebia believes that such a
to contract for or bind the other Party in any manner whatsoever.
claim is likely, Xebia may, at its sole option and expense (a) procure
for Client the right to continue using the affected Materials; (b) 6.3. During performance of the Services, Xebia may, where
replace or modify the affected Materials with a functionally applicable and in good faith consultation with the Client, replace
equivalent alternative so that it does not infringe; or, if (a) and (b) Xebia employees with equally or better qualified employees.
are not commercially feasible, (c) terminate the relevant Agreement
for convenience by giving notice of termination, take back the 6.4. Xebia may engage and/or subcontract certain (part of
affected Materials and reimburse Client for pro-rated Fees paid by the) Services (to be) provided under these Terms by one or more
the Client that is directly attributable to the affected Materials and third parties having specific expertise as elected by it for which Xebia
period. will notify the Client (such notification is not required in relation to
provision of the Services by Subcontractors as defined above).
5.11. Xebia shall have no obligation or liability to the extent However, Xebia will remain responsible and liable towards the Client
that the alleged infringement arises from (1) the integration, for the performance of those Subcontractors.
operation or use of the Materials with products, information,
materials, software, technologies, business methods or processes 6.5. Xebia shall have these Subcontractors enter into
and the like not furnished by Xebia, (2) modifications to the confidentiality obligations similar to the confidentiality obligations
Materials not made by Xebia, (3) failure to use updates or upgrades applicable to Xebia. If requested by the Client, Xebia shall identify
to the software components of Materials, or (4) use of the Materials these Subcontractors, specifying in each case their specific
other than in accordance with the documentation or other expertise.
specifications provided by Xebia.
5.12. THESE PROVISIONS ABOVE CONSTITUTE THE ENTIRE 7. Expenses
LIABILITY OF XEBIA, AND CLIENT’S SOLE AND EXCLUSIVE REMEDY
WITH RESPECT TO ANY THIRD-PARTY CLAIMS OF ANY ACTUAL OR 7.1. Unless specified otherwise in a SoW Client will reimburse
ALLEGED INFRINGEMENT OR MISAPPROPRIATION OF XEBIA IPR. Xebia for travel, lodging, living expenses and expenses on additional
software/license/subscription, hardware (such as but not limited to
5.13. Client may not use the Materials in an unlawful manner, a mobile phone), etc. incurred by Xebia in the performance of the
including but not limited to, for infringement of IPR of any person, Services (“Expenses”), provided such Expenses are mutually agreed
violation of applicable laws, transmitting infringing, threatening, between the Parties from time to time.
offensive, libelous, or otherwise unlawful material, or to store or
transmit malicious code. 7.2. If Expenses are incurred by Xebia in emergency
situations to mitigate any risks or damage where it is not practical
5.14. Client guarantees that no rights of third parties prevent to obtain Client’s prior approval, Client shall reimburse such
provision to Xebia of any equipment, software, material meant for
Xebia General Terms & Conditions – version Five (2024) Page 3 of 7
Expenses invoiced by Xebia for which mutual agreement between “AS IS” AND “WITH ALL FAULTS,” AND XEBIA EXPRESSLY
the Parties will not apply. All adjustments (if any) agreed by both DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND OR NATURE,
Parties shall reflect in a separate invoice issued by Xebia. WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY
WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE. XEBIA DOES NOT WARRANT THAT
8. Payment
MATERIALS OR SERVICES AND ANY OTHER MATERIAL,
SOFTWARE, AND/OR DATA PROVIDED UNDER THESE TERMS WILL
8.1. Unless agreed otherwise in the applicable SoW, Client MEET CLIENT’S REQUIREMENTS OR THAT THE OPERATION
shall pay invoiced amounts within 30 days of receiving Xebia’s THEREOF WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT
invoice. If an invoice is not paid within the payment term, Client will ALL ERRORS WILL BE CORRECTED.
be in default without a demand or notice of default being required.
Any delay in payment shall attract a late payment fee of 1,5% per
11. Liability
month on the overdue amounts. In the event of default, all costs,
such as administration costs, judicial and extrajudicial costs,
including the costs for a bankruptcy application, will be borne by 11.1. EACH PARTY’S AGGREGATE LIABILITY ARISING OUT
Client. The extrajudicial collection costs are due at the time that OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING UNDER
Xebia has handed over the claim for collection and amounts to at OR RELATED TO BREACH OF CONTRACT, INDEMNITY, TORT
least 15% of the unpaid amount, with a minimum of EUR/USD (as (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER
applicable) 250.00. LEGAL OR EQUITABLE THEORY WHATSOEVER, IS LIMITED TO THE
LOWER OF (A) DIRECT DAMAGES UP TO A MAXIMUM OF EUR
8.2. If any sum payable under the Agreement is not paid by 100.000 WHERE XEBIA ENTITY IS DOMICILED IN EUROPE AND
the due date or there is otherwise reasonable doubt about the USD 100,000 WHERE XEBIA ENTITY IS DOMICILED OUTSIDE
payment capacity of Client or if Client fails to comply with the EUROPE OR (B) THE AMOUNT PAID OR PAYABLE BY CLIENT FOR
Agreement, then (without prejudice to Xebia’s other rights and THE RESPECTIVE SOW DURING A 6 (SIX) MONTHS’ PERIOD
remedies) Xebia may, by giving written notice, suspend the Services IMMEDIATELY PRECEDING THE DATE WHEN SUCH CLAIM AROSE.
until the date on which payment is received or until the Client has NO PARTY IS LIABLE FOR ANY INDIRECT DAMAGES,
provided (additional) security for the claims and payment of the CONSEQUENTIAL DAMAGES, PUNITIVE DAMAGES, LOSS OF
Services to be provided, except in the case of a genuine dispute BUSINESS, COSTS OF DELAY, FAILURE OF DELIVERY, LOST
being handled under Clause 16 and 17 in connection with the SAVINGS, LOST REVENUES, LOST PROFITS, OR LOSS OF
unpaid sum. When Services have been suspended and payment is GOODWILL, COSTS OF LOST OR DAMAGED DATA OR
received from Client, Xebia and Client shall subsequently agree a DOCUMENTATION OR LIABILITIES TO THIRD PARTIES ARISING
date to recommence the Services. FROM ANY SOURCE, EVEN IF A PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY
8.3. Payments shall be made to such bank account and
FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY OF
through such payment mode including without limitation electronic
ANY KIND.
or wire transfer as may be agreed in the SoW or specified by Xebia
from time to time on the invoice. 11.2. THE LIMITATIONS OF LIABILITY SET OUT HEREIN DO
NOT APPLY FOR PAYMENT OBLIGATIONS OF CLIENT AND IN CASE
9. Confidentiality OF A PARTY’S INTENTIONAL OR GROSS NEGLIGENCE OR ANY
OTHER TERMS HEREOF FOR WHICH LIABILITY CANNOT BE
LIMITED UNDER APPLICABLE LAW.
9.1. The Parties agree to maintain each other’s Confidential
Information secret and treat it in the same manner as it treats its
own Confidential Information (but always with a reasonable degree 12. Personal Data
of care). The Parties will not share each other’s Confidential
Information with third parties without the prior written consent of If performing the Services requires Xebia to process personal data,
the other Party. The Parties may agree on additional confidentiality the following will apply:
terms if desired. Each Party can disclose the information to its
Affiliates and with that of their employees, Subcontractors and/or
auditors on a need to know and confidential basis and in response a) Xebia shall maintain adequate technical and organizational
to a notice or order from a legally competent authority. measures to protect such personal data against loss or
wrongful processing in accordance with Xebia’s Privacy Policy
9.2. Notwithstanding the foregoing, the provisions of this (https://xebia.com/privacy-statement/) which will apply to
Section shall not apply to Confidential Information that (i) is publicly such personal data.
available or in the public domain at the time disclosed; (ii) is or b) In the context of these Terms, Xebia as well as the Client shall,
becomes publicly available or enters the public domain through no at their own respective expense, ensure that they comply with
fault of the receiving Party; (iii) is rightfully communicated to the and assist the other Party to comply with the requirements of
receiving Party by persons not bound by confidentiality obligations all applicable legislations as well as regulatory requirements in
with respect thereto; (iv) is already in the receiving Party’s force from time to time relating to the use of personal data,
possession free of any confidentiality obligations with respect including but not limited to:
thereto at the time of disclosure; (v) is independently developed by (i) the General Data Protection Regulation ((EU) 2016/679);
the receiving Party; or (vi) is approved for release or disclosure by (ii) all applicable privacy laws existing within the jurisdiction of
the disclosing Party without restriction. Notwithstanding the the Republic of India;
foregoing, each Party may disclose Confidential Information of the (iii) all applicable privacy laws existing within the jurisdiction of
other Party to the limited extent required (a) to comply with the the United States of America, and/or;
order of a court or other governmental body, or as otherwise (iv) all other applicable international, regional, federal or
necessary to comply with applicable law, provided that the Party national data protection laws, regulations and regulatory
making the disclosure pursuant to the order or law shall first have guidance, in force from time to time and applicable to
given written notice to the other Party and shall have made a Xebia, Client, the supply of the Services and Xebia’s use
reasonable effort, at the request and expense of the other Party, to thereof (“Data Protection Laws”), as applicable.
obtain a protective order; or (b) to establish the Party’s rights under This Section 12 is in addition to, and does not reduce,
these Terms, including to make such court filings as it may be remove or replace, a Party’s obligations arising from such
required to do. Xebia remains entitled to use the knowledge, requirements.
expertise and know how it gained from performance of the Services c) In the event personal data in the meaning of the Data
and apply it with third parties. Protection Laws are being processed or transferred, this will
always be governed by the Data Protection Laws and the
parties will in such case agree on the details of processing in
10. Warranties
the SoW and/or agree to enter into a separate data processing
agreement and as the case may be a transfer agreement based
10.1. EXCEPT AS EXPRESSLY WARRANTED IN THESE TERMS, on the EU model clauses, which shall be deemed to form part
MATERIALS, THE SERVICES, AND ANY OTHER MATERIAL, of the Agreement.
SOFTWARE, AND/OR DATA PROVIDED BY XEBIA, ARE PROVIDED
Xebia General Terms & Conditions – version Five (2024) Page 4 of 7
13. Term and Termination or any event referred to above preventing a Subcontractor from
performing its obligations under a subcontract.
13.1. Unless agreed otherwise, these Terms shall apply per 15.2. Upon the occurrence of a Force Majeure, the Parties
the Effective Date and shall apply to a SoW for the Term specified and/or their Subcontractors shall be excused from their obligations
therein and shall continue in respect of a SoW until such SoW is and their rights hereunder shall be stalled during the continuation
terminated or expires. The Parties may agree in writing to a renewal of such Force Majeure and the time for completing that portion of
of the SoW. An automatic renewal of a SoW does not apply. their rights and obligations which have been delayed shall be
extended by a period equivalent to the delay so caused.
13.2. In case these Terms are signed between the Parties on
a standalone basis in writing/electronically, these Terms shall 15.3. If the period of Force Majeure continues or is in the
remain in effect for the purpose of other current and prospective reasonable judgment of the Parties likely to continue beyond a
SoWs, unless specifically terminated in accordance with the period of 30 days, either Party may terminate this Agreement upon
conditions applicable to termination of the Agreement. mutual written consent, not to be unreasonably withheld.
13.3. Unless agreed otherwise in the SoW, either Party may 15.4. Nothing contained in this Section shall apply to Parties’
terminate the Agreement or a SoW for convenience without liability, payment obligations hereunder.
taking into account a notice period of 30 days. In this case, Client
will compensate Xebia for Fees and Expenses in relation to the
Services actually performed up to the time of termination. 16. Applicable law & Jurisdiction
13.4. A Party may terminate the Agreement immediately with
16.1. These Terms and all other agreements in relation
written notice if the other Party (a) breaches its obligations under
thereto between the Parties are governed by the laws of the state
the Agreement (including without limitation Client’s payment
or country set forth below, based upon Xebia’s entity location
obligations) and fails to substantially cure such breach within 30
without giving effect to its conflict of law principles and excluding
days of receiving notice thereto; (b) requests or is granted a
the U.N. Convention on Contracts for the International Sale of
moratorium of payment; and/or (c) if a petition for bankruptcy or
Goods. Any suit or proceeding relating to these Terms shall be
insolvency is filed and not withdrawn within 30 days, or a Party is
brought exclusively before the court/tribunal/arbitrator of
being declared bankrupt or insolvent.
competent jurisdiction in the applicable jurisdiction set forth below,
13.5. Upon termination the removal or destruction of either unless different law system and/or jurisdiction is agreed in an SoW.
Party’s Confidential Information will be done in accordance with
16.2. For all Xebia based entities in Europe and the
requesting Party’s instructions and upon that Party’s expense (if
European Union, Dutch law. All disputes arising from or relating
any), subject to retention requirements necessary to substantiate
to these Terms or any agreement in relation thereto between the
compliance under the Agreement and applicable law.
Parties will be brought before the competent court of the city of
13.6. The termination or expiration of a SoW shall not impact Amsterdam, The Netherlands.
the validity of any other SoW. Termination or expiration of the
16.3. For all Xebia based entities in United Kingdom
Agreement does not release the Parties from those obligations
and Poland, English law. All disputes arising from or relating to
which, by their nature, are intended to remain in effect, including
these Terms or any agreement in relation thereto between the
provisions with respect to payment of Fees, intellectual property,
Parties will be brought before the competent court of the city of
payment of taxes, liabilities, applicable law & jurisdiction and dispute
London, England.
resolution which will remain in effect in perpetuity, while terms
related to personal data, confidentiality, and indemnity will remain 16.4. For all Xebia entities based in countries specified
in effect for a period of 5 (five) years after the expiry or earlier in the applicable Schedule (if any) included in these Terms,
termination of the Agreement, unless a longer duration is specified terms specified in such Schedule will apply.
under applicable law in which case such longer duration shall apply.
16.5. For Xebia USA Inc. and Rest of World, Delaware
law. All disputes arising from or relating to these Terms or any
14. Non-Solicitation agreement between the Parties will be brought before the federal
or state courts located in Wilmington, New Castle County, Delaware,
14.1. During the term of the Agreement and for a term of The United States.
twelve (12) months after its expiration or termination, neither Party
shall (directly or indirectly) solicit, hire, or entice away (or seek or 16.6. Any disputes arising in countries not recognizing or not
attempt to solicit, hire or entice away) from the employment of the executing court verdicts from the jurisdiction Xebia sets forth in this
other Party and/or any of its Affiliates any personnel employed by Applicable Law & Jurisdiction Section shall be finally settled under
the other Party in the provision of the Services (or who has been so the Rules of Arbitration of the International Chamber of Commerce
employed in the preceding six (6) months by the other Party) with (“ICC”). Such disputes or claims shall be settled by simplified
whom that Party comes into contact as a result of the relationship arbitration arranged by ICC in accordance with the rules of
created by the Agreement without the prior written consent of the arbitration procedure adopted by ICC and in force at the time when
other Party. such proceedings are commenced. Arbitration shall be conducted
before the ICC office in the jurisdiction where the contracting Xebia
14.2. Parties acknowledges that the prohibition and restriction entity executing the SoW is registered before a sole arbitrator
contained in this Section are reasonable in the circumstances and appointed in accordance with the ICC Rules. Arbitral proceedings
necessary to protect the business of Parties. shall be conducted in English. The award rendered thereon by the
arbitrator shall be final and binding on the Parties thereto and
judgement thereon shall be confidential and may be entered in any
15. Force Majeure
court of competent jurisdiction. Nothing in this Section shall prevent
either Party from applying to a court of competent jurisdiction for
15.1. Force Majeure (“Force Majeure”) means an event equitable or injunctive relief. Client may only resolve disputes with
preventing a Party performing any of its obligations stemming from Xebia on an individual basis and Client agrees not to bring or
these Terms, which is beyond their control and occurring without participate in any class, consolidated, or representative action
their fault or negligence, which could not been have reasonably against Xebia or any of Xebia’s employees or Affiliates. The Parties
foreseen or prevented by reasonable precautions, such as, but not hereby expressly waive the right to have any dispute or other
limited to, acts of God or of the public enemy; civil war; insurrections matters arising here from adjudicated by way of jury trial.
or riots; acts of war; acts of government; acts of terrorism; fires;
floods; storms; explosions; earthquakes or accidents; unusually
17. Dispute Resolution
severe weather; strikes or labour troubles causing cessation,
slowdown or interruption of work; failures or fluctuations in
electrical power, heat, light, air conditioning or telecommunication 17.1. Promptly following a written notice of dispute from one
equipment; abrupt inflation; epidemic or pandemic or quarantine Party to the other regarding a dispute that arises pursuant to these
restrictions; lockdowns, curfews or movement prohibitions; cyber Terms, management of both Parties will meet with each other and
security attacks like DDoS (distributed denial of service), advance endeavor in good faith to resolve the dispute. If management
persistent threat (APT), and ransomware; and other similar events, cannot resolve the dispute, informally within a reasonable time not
Xebia General Terms & Conditions – version Five (2024) Page 5 of 7
exceeding 2 months from the date the informal process is requested such invalidity, illegality, or unenforceability. The Parties shall
by notice in writing, the dispute will be escalated to executive attempt to give maximum effect to such provision and replace such
management for a further good faith effort at resolving the dispute. provision with an alternative provision having similar effect.
If the Parties fail to settle the dispute via the escalation procedure
described above, the Parties will investigate the possibilities of
22. Counterpart Signatures
submitting the dispute to mediation before starting litigation. Any
litigation will be as set forth in the Section ‘Applicable Law &
Jurisdiction’ of these Terms. 22.1. These Terms may be executed in several counterparts,
including by way of a hyperlink in SoW signed by both the Parties,
or enclosed to SoW signed by both the Parties, or in wet-ink or via
18. Agreement
e-signatures, each of which shall be deemed an original for all
purposes, including judicial proof of the Terms hereof, and all of
18.1. Where these Terms are included by way of a hyperlink which together shall constitute and be deemed one and the same
in or enclosed with executed SoWs, these Terms do not require any Agreement.
physical, electronic, or digital signature and inclusion of these Terms
by way of hyperlink in or as an enclosure to executed SoWs shall be
23. Entire Agreement and amendments
sufficient for these Terms to be effective between the Parties. If the
Parties otherwise mutually agree, these Terms can be signed in wet-
ink or e-signatures. 23.1. These Terms and the instruments referenced herein
contain the entire understanding of the Parties with respect to the
18.2. In case of any conflict between the Terms, and SoWs, matters covered except as specifically set forth herein, neither Xebia
the order of precedence shall be (a) SoW, and (b) Terms, wherein nor the Client makes any representation, warranty, covenant or
(a) will prevail over (b). undertaking with respect to such matters. No provision of these
Terms may be waived or amended other than by an instrument in
writing signed by both Parties.
23.2. It is understood by the Parties that the Agreement is not
exclusive. Nothing in the Agreement shall prevent either Party from
19. Assignment
providing to/availing from, a third party or otherwise dealing in the
same or similar or competitive Services or Materials as those
19.1. Neither Party shall assign the Agreement or any part provided to the Client pursuant to the Agreement (irrespective of
thereof without the prior written consent of the other Party, which their similarity to the Materials provided hereunder). Parties agree
consent shall not be unreasonably withheld or delayed. Xebia may, that, subject to the terms of the Agreement, each Party shall have
however, without such consent, assign its rights and/or obligations the right to retain a copy of Materials for its records.
under these Terms to an Affiliate or successor pursuant to a merger,
demerger, spin-off, amalgamation, or similar corporate
24. Attorney fees and expenses
restructuring exercise. No assignment shall relieve any Party of
responsibility for the performance of any accrued obligation which
such Party has under the Agreement. Any assignment shall be 24.1. In a dispute arising out of or related to these Terms, the
contingent upon the assignee assuming in writing all of the prevailing Party shall have the right to collect from the other Party
obligations of its assignor under this Agreement. its reasonable attorney fees and costs and necessary expenditures.
20. Survival 25. Waiver
20.1. These Terms by their nature are intended to survive 25.1. The waiver of a breach of any provision of these Terms
termination or expiration of the Agreement such as but not limited will not operate or be interpreted as a waiver of any other or
to terms related to payment of Fees, committed usage, indemnity, subsequent breach.
liability shall so survive.
26. Further Assurance
21. Severability
26.1. Each Party agrees to perform such further acts and
21.1. In case any provision in these Terms shall be invalid, execute such further documents as are necessary to effectuate the
illegal, or unenforceable, the validity, legality and enforceability of purpose hereof and/or as may be reasonably required by other Party
the remaining terms shall not in any way be affected or impaired to comply with applicable law.
thereby and such provision shall be ineffective only to the extent of
Xebia General Terms & Conditions – version Five (2024) Page 6 of 7
Schedule
This Schedule shall be deemed to be an integral part of Section 16 of the Terms.
For all Xebia entities based in countries of Asia-Pacific and Middle-East regions specified below. All disputes arising from or relating
to these Terms or any agreement in relation thereto between the Parties will subject to such governing laws and be finally se ttled by institutional
arbitration of such arbitration centre in accordance with rules thereof as are tabled below. The Parties agree that, where available, any arbitration
commenced pursuant to this Section shall be conducted in accordance with the Expedited procedure set out in respective arbitration rules. The
arbitral proceedings shall be conducted in the respective city of Venue and Seat in English language. A sole arbitrator appointed with mutual consent
of the Parties shall preside over the arbitration proceedings, failing which a sole arbitrator shall be appointed in accordance with applicable rules of
arbitration. Award passed by the arbitrator shall be final and binding upon the Parties.
Country of Xebia entity Institution Governing Law Venue and Seat
India Delhi International Arbitration Centre Indian New Delhi, India
Vietnam Vietnam International Arbitration Centre Vietnamese Ho Chi Minh City, Vietnam
Singapore Singapore International Arbitration Centre Singapore Singapore
Australia Australian Centre for International Commercial Arbitration Victoria, Australia Melbourne, Victoria, Australia
UAE Dubai International Arbitration Centre Dubai, UAE Dubai, UAE
Kingdom of Saudi Arabia Saudi Centre for Commercial Arbitration Saudi Arabia Riyadh, Saudi Arabia
Xebia General Terms & Conditions – version Four (2024) Page 7 of 7