Terms and Conditions of Use of ITWorx Services

The use of any of the Services offered by ITWorx is conditional upon Customer agreeing to these Terms. The use of ITWorx’s Services by Customer will be deemed to be acceptance of all Terms and such acceptance will bind Customer to these Terms in a legally enforceable contract with ITWorx Egypt SAE, Egypt.

1) Definitions:

Unless otherwise defined in the Terms, all capitalized terms shall have the meanings set forth in this article 1.

“Terms” shall mean these Terms and Conditions of use.

“Customer” shall mean the natural or legal person agreeing to these Terms using any form of acceptance to be provided the Services by ITWorx.

“Services” shall mean the information technology services and functions to be provided by ITWorx to Customer under a Statement of Work, per the Service Levels and including but not limited to technical assistance and assistance in design, conversion, development and implementation, programming, training, consulting, project management, other software related services and application support.

“Service Levels” shall mean with respect to any Services any agreed performance level for the Services as agreed by the Parties for the due provision of Services in any SOW;

“Statement of Work (SOW)” shall mean any statement of work, work order or purchase order to be agreed upon and to be executed by ITWorx and Customer to specify the Services details and Fees.

“Fees” shall mean the financial amounts due to ITWorx in consideration of the Services provided to Customer and to be agreed upon by ITWorx and Customer in a Statement of Work.

2) Services:

2-1 Subject to the Terms, ITWorx shall provide Customer with the Services as defined the Terms. The Services shall be the subject of a SOW duly executed by ITWorx and Customer purchasing the Services. Each SOW shall refer to, and form an integral part of the Terms and shall specify the terms applicable to the provision of the Services. The SOW shall include all the details of the Services.

2-2 ITWorx shall be entitled to subcontract the performance of the Services under any SOW to a competent subcontractor however ITWorx shall remain fully responsible for the performance of all Services.

2-3 To the extent that the provisions set forth in a SOW conflict with the Terms, the Terms shall prevail, unless it is explicitly stated in a SOW that specific provisions contained therein shall supersede conflicting provisions set forth in this the Terms.

3) Customer’s Obligations:

3-1 To the extent necessary for the due performance of the Services, ITWorx shall be granted access by Customer to all relevant source code, software, hardware, documentation and information whether owned by Customer or licensed to it by a third party provider to the extent necessary for the performance of a SOW.

3-2 Customer shall cooperate with ITWorx in the performance of the Services and agrees to respond without delay to ITWorx reasonable requests for any hardware, software or information that ITWorx reasonably determines is necessary to perform Services subject to any restrictions imposed upon Customer by the terms of any agreement or license with a third party.

4) Fees and Payment:

4-1 Customer agrees to pay to ITWorx the Fees. The Fees shall be due and payable within thirty (30) calendar days following Customer’s receipt of an invoice for such amounts.  All amounts will be invoiced and payable in U.S. dollars.  In no event will Customer be entitled to a refund of any amounts paid by Customer to ITWorx, unless ITWorx is in breach of the Terms. If Customer fails to timely pay any fees or any other amounts due and payable to ITWorx under the Terms, in addition to any remedies available to ITWorx under applicable law, ITWorx reserves the right to suspend the Services or terminate the Statement of Work.

4-2 The Fees are exclusive of all taxes and duties imposed by taxing authorities, and Customer shall be responsible for payment of all such taxes and duties.

5) Duration and Termination:

5-1 The duration of the Services shall be specified in a Statement of Work.

5-2 Termination for Convenience: Both Parties may elect to terminate a Statement of Work for convenience, upon the issuance of sixty (60) days prior written notice to the other Party. In case the terminating Party is ITWorx then the Customer shall be paying the Fees for the Services provided to the Customer till, and including, the date of termination.  Such amount shall be due and payable to ITWorx on or prior to the effective date of termination of a Statement of Work. In case the terminating party is the Customer, then the Customer shall be paying all Fees agreed upon.

5-3 Termination for Cause: Either party may terminate a Statement of Work immediately upon receipt by the other party of written notice of that party’s intent to terminate: (i) if a bankruptcy proceeding is instituted by or against the other party which is not dismissed within sixty (60) days from the commencement thereof; or (ii) if the other party materially breaches any provisions of the Terms and such breach is not cured within thirty (30) days of receipt of notice specifying the breach from the non-breaching party.  Notwithstanding the foregoing, ITWorx may terminate a Statement of Work immediately in the event that Customer fails to cure a breach of its payment obligations within five (5) business days after Customer’s receipt of notice of late payment. In case Customer terminates a Statement of Work for cause, Customer shall not pay any remaining amounts under a Statement of Work. In case ITWorx terminates a Statement of Work for cause, Customer shall be paying all Fees agreed upon.

5-4 Upon any termination or expiration of a Statement of Work: (i) all rights granted to Customer hereunder will immediately terminate and (ii) the parties shall return or destroy with written certification, if requested by either party, all Confidential Information of the other party and any and all derivatives thereof.

6) Representations and Warranties:

6-1 ITWorx represents and warrants to Customer that:

(i) ITWorx and all ITWorx Personnel have the necessary skill, experience and resources to perform the Services in accordance with the Service Levels and any details agreed upon in any SOW.

(ii) ITWorx has, or shall obtain and maintain, all rights, licenses, permissions and approvals necessary for it to perform its obligations under a SOW.

6-2 Customer represents and warrants to ITWorx that:

(i) Customer and all Customer Personnel have the necessary skill, experience and resources to perform the Customer’s obligations under a SOW.

(ii) it has all rights, licenses, permissions, and approvals necessary for it to perform its obligations under a SOW.

7) Limitation of Liability:

IN NO EVENT SHALL ITWORX’ MAXIMUM AGGREGATE LIABILITY FOR ANY CLAIMS ARISING UNDER OR RELATED TO THE TERMS AND/OR SOW EXCEED THE AMOUNTS ACTUALLY PAID BY CUSTOMER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.  IN NO EVENT SHALL ITWORX BE LIABLE TO CUSTOMER, OR TO ANY PERSON CLAIMING BY OR THROUGH CUSTOMER, FOR ANY LOST PROFITS, LOST BUSINESS, LOST REVENUE OR FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF DATA, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICES, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICES, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICES, REGARDLESS OF THE THEORY UNDER WHICH SUCH DAMAGES ARE CLAIMED (INCLUDING CONTRACT, TORT, NEGLIGENCE, ETC.) AND EVEN IF ITWORX HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

8- Indemnification:

8-1 Customer shall defend, indemnify and hold ITWorx, its licensors and each such party’s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with: (a) a claim, which if true, would constitute a violation by Customer of its representations and warranties; (b) a claim arising from the breach by Customer of the Terms; or (c) a claim arising from any infringement of the intellectual property rights of a third party arising from the combination of the Services with any of Customer’s products, services, hardware, data or business processes.

8-2 ITWorx shall defend, indemnify and hold Customer and its parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising directly out of a claim brought by a third party alleging that the Services directly infringes a copyright, a patent, or a trademark of such third party.

9) Miscellaneous:

9-1 Intellectual Property Rights:  The intellectual property rights in the Services delivered to the Customer shall be exclusively vested in the Customer, provided that the intellectual property rights in any of ITWorx products, programs or pre-existing intellectual property shall remain exclusively vested in the ITWorx.

9-2 Personal Data Protection: The internal policies applied by ITWorx in relation to the protection of personal data shall apply.

9-3 Force Majeure: Neither party shall be liable to the other party in any way whatsoever for any failure or delay in performance of any of the obligations under a Statement of Work arising out of any event or circumstance beyond the reasonable control of such party (including war, rebellion, civil commotion, acts of terror, strikes, lock-outs or industrial disputes, fire, explosion, earthquake, acts of God, flood, drought or the requisitioning or other act or order by any government department, council or other constituted body).

9-4 Notices:  Any notice will be in writing and will be delivered as follows: (a) by personal delivery; (b) by internationally recognized express courier upon written verification of receipt; or (c) by email transmission when confirmed receipt by email transmission report.  All notices must be sent to the addresses set in a Statement of Work or as otherwise agreed by the parties.

9-5 No Assignment:  Customer shall not transfer the Statement of Work, or assign any rights or delegate any obligations hereunder, in whole or in part, whether voluntarily or by operation of law, without the prior written consent of ITWorx.

9-6 Non-solicitation of Employees:  For the duration agreed upon in a Statement of Work and for two (2) years after the expiry or termination of such Statement of Work, Customer shall not solicit the employment of, or employ ITWorx’s personnel, without acquiring prior written consent from the legal representative of ITWorx.

9-7 Severability:  If any provision of the Terms is held by a court of competent jurisdiction to be contrary to law, the parties agree that such provision will be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law, and the remaining provisions of the Terms will remain in full force and effect.

9-8 Compliance with Laws:  Each party is responsible for compliance with all applicable laws, rules and regulations, if any, related to the performance of its obligations.

9-9 Waiver: The failure or delay of either party to require performance by the other party of any provision will not affect the full right to require such performance at any time thereafter; nor will the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of the provision itself.

9-10 Logo & Names Usage: ITWorx shall have right to use the Customer’s Logo or name for its marketing & advertising purposes & materials after the signature of a Statement of Work by both Parties.

9-11 Governing Law & Venue:  These Terms will be governed by the laws of Egypt without regard to its conflicts of law provisions. Each party submits to the exclusive jurisdiction of the appropriate court in Egypt.