General Terms and Conditions
NFQ Vietnam Limited
Version: 01 May 2025
These General Terms and Conditions ("T&C") govern all contracts between NFQ Vietnam Company Limited (“NFQ”) and its client. The T&C are divided in parts:
A. Part A encompasses all general terms and conditions applicable to any services provided by NFQ and/or its Affiliates (as defined below);
B. Part B applies if clients are receiving software development services from NFQ and/or its Affiliates;
C. Part C applies if clients are receiving task resolution and support services from NFQ and/or its Affiliates; and
D. Part D applies if clients are receiving consulting services or speaking engagements from NFQ and/or its Affiliates.
The specific services to be provided will be detailed in the Statement of Work (“SOW”).
Part A: General Terms and Conditions
1. Scope of application
1.1. NFQ provides a range of services, including software development and product development. Additionally, NFQ offers process digitalization, business analytics, and strategic counsel, with the objective to increase scalability of clients’ businesses. NFQ also offers consulting services and participates in speaking engagements. All services being offered to NFQ’s clients (“the Client”) and as set out in the SOW are individually or collectively referred to as "NFQ Services". NFQ and the Client are together referred to as the “Parties” or individually as “Party”.
1.2. The Parties agree that NFQ may involve its Affiliates in fulfilling obligations under this Agreement, as identified in the SOW (if any). “Affiliate” means: (a) any person controlled, directly or indirectly, by NFQ; (b) any person that controls, directly or indirectly, NFQ; and/or (c) any person directly or indirectly under common control with NFQ, and the term "control" (including the terms "control", "controlled by" and "under common control with") means, when used in the context of control of a person, the authority or ability, whether exercised or not, to control or direct a person's business, affairs, management or policies, which authority or ability shall conclusively be deemed to exist upon possession of beneficial ownership or power to direct the vote of more than 50% of the votes entitled to be cast or to control the composition of the board of directors. Any actions or omissions by Affiliates shall be considered actions or omissions by NFQ.
1.3. These T&C follow a Statement of Work (“SOW”) which NFQ offers to all its “Clients” identified in the SOW (SOW and T&C, as may be amended, varied, novated, supplemented or replaced from time to time, together referred to as “Agreement”). The SOW includes the key terms of the Project (as defined below), including the relevant NFQ Services, specific completion dates for each Project, and pricing details. The Agreement between the Client and NFQ for NFQ Services, including these T&C, becomes effective on the “Effective Date” specified the SOW. In case of any inconsistency between the SOW including its Annexes and the T&C, the provisions outlined in the SOW shall prevail.
1.4. Any general terms and conditions of the Client are deemed inapplicable. Counter confirmations from the Client referencing its own terms and conditions are hereby rejected.
2. Definitions and Interpretation
Definition: Capitalised terms used herein shall adopt their meanings ascribed to them in the SOW or the following T&C. Unless otherwise defined, other capitalised terms used herein shall adopt the following meanings:
Applicable Laws shall mean the laws of the jurisdiction specified in Section 17.2 (Governing Law and Jurisdiction) governing the contract and the related business operations.
Business Day shall mean any weekday on which NFQ and/or its Affiliate(s), responsible for executing the Project, is open for business, excluding weekends and public holidays in the jurisdiction of NFQ and/or that Affiliate(s).
Business Hours shall mean the business hours from 9:00 a.m. to 6:00 p.m. on Business Days or such other times as approved by NFQ and/or its Affiliate(s).
Change Request shall have the meaning ascribed to it in Section 5.1.
Client’s Information shall mean all provided information, materials, data, images, plans, and documents by the Client to NFQ and/or its Affiliate(s). Critical Errors In relation to any Software developed as part of the NFQ Services, shall mean a material deviation of that Software from the agreed-upon Specifications in the SOW that fundamentally impairs the core functionality, performance, or usability of the NFQ Services and has a severe impact on the Client's ability to use or derive value from the NFQ Services.
IP Rights shall mean intellectual property rights of any kind including without limitation, all rights in or arising out of patents, trade, service and other marks, layout design rights, registered designs, design rights (and applications for all of the same), copyrights, rights affording equivalent protection to copyrights and design rights, moral rights, trade, product, brand and business names, rights protecting trade secrets and confidential information, get-ups and logos, inventions, discoveries, improvements, designs, techniques, computer programs, trade secrets, supply, distributorship, agency and other like agreements, technical and commercial know-how and confidential processes, all other information including rights acquired under licenses or other agreements in connection with any of the same, rights protecting goodwill and reputation and in every case, all other similar corresponding proprietary rights and all applications for the same, whether presently existing or created in the future, anywhere in the world, whether registered or not, and all benefits, privileges, rights to sue, recover damages and obtain relief for any past, current or future infringement, misappropriation or violation of any of the foregoing right.
NFQ Services Shall have the meaning ascribed to it in Section 1.
Personal Data means any information relating to an identified or identifiable natural person; this includes, but is not limited to, names, email addresses, contact information, IP addresses, and any other information that can be used to identify an individual.
Point of Contact shall mean the person designated by each Party in the SOW to serve as the main representative responsible for communicating, coordinating, and managing Project matters.
Project shall mean the method of providing NFQ Services that has a clear beginning and end and is directed towards a unique result. The Project is specified in the SOW.
Remuneration shall mean the remuneration payable by the Client for the NFQ Services and as outlined in the SOW.
Service Plan shall mean the predefined package(s) of NFQ Services encompassing features, and pricing on a periodic basis as outlined in the SOW, if any.
Service Provisioning Capacities shall mean the allocation of resources, in particular personnel, and skills, but further includes equipment, or performance metrics that NFQ shall meet, such as response times, or resolution times, in each case outlined in the SOW, if any.
Software shall mean the software defined and specified in the SOW, if any.
Specifications shall mean the specifications for the Software defined and specified in the SOW, if any.
Total Contract Price shall mean the fixed one-off amount as specified in the SOW paid by the Client for the performance of NFQ Services, if any.
Unfair Competition shall mean actions aimed at gaining a competitive edge, securing benefits, or causing harm to the other Party through the utilization, provision, or disclosure of the other Party’s Confidential Information without consent, as well as the receipt of such information from unauthorized sources.
Warranty Period shall mean the warranty period specified in the SOW.
Work Day shall mean a calendar day on which a Service Provisioning Capacity performs work for the Client and shall consist of up to 8 hours of productive effort, and partial days shall be pro-rated accordingly based on actual hours worked.
Work Result(s) shall mean any tangible or intangible outcome, deliverable, or product created, developed, or produced as a result of NFQ Services provided under this Agreement, including but not limited to the Software (if any, developed as part of the NFQ Services), software code, designs, documentation, reports, prototypes, inventions or any other intellectual property.
3. Subject of the Agreement
The subject of the Agreement is NFQ Services. The specific content and scope of the NFQ Services are outlined in the SOW. Should the need for additional or supplementary NFQ Services arise, NFQ will promptly notify the Client. In such instances, the Parties may then extend the SOW with an addendum for supplementary work or agree to enter into a new SOW.
4. Execution of NFQ Services
4.1. Reporting: NFQ will prepare monthly reports on the NFQ Services in written form, except for short-term Task Resolution Services (Part C.), Consulting Services (Part D. Section 1), and Speaking Engagements (Part D. Section 2). Reports will be emailed to the Client’s Point of Contact by the 5th Business Day of each month. The Client’s Point of Contact must approve or comment on the report within 5 Business Days of receipt, after which said report will be deemed approved by the Client.
4.2. Distribution of Work Results: NFQ's Work Results may be electronically disseminated, such as through email transmission or storage on a designated server.
4.3. Time Forecasts: Time forecasts provided by NFQ are non-binding estimates, as that the duration of performance may depend on factors beyond NFQ's control. While NFQ strives to adhere to proposed timetables, modifications may be necessary due to evolving circumstances throughout the Project. Price adjustments may apply accordingly.
4.4. Subcontractors: NFQ shall be entitled to hire its Affiliates, subcontractors, or other third parties to provide NFQ Services. NFQ will name the subcontractor in the SOW, if known at the time of conclusion, otherwise, NFQ will notify Client once the subcontractor is determined. NFQ remains fully liable to the Client for the appropriate provision of NFQ Services under the Agreement.
5. Change Request by Client
5.1. Procedure: If the Client identifies the need for alterations in the provided NFQ Services, the Software (if applicable) or Project, the Client shall submit a written request to NFQ, specifying the change requirements (“Change Request”).
5.2. Response: NFQ shall respond to the Change Request within 5 Business Days in writing (e mail is sufficient), outlining the anticipated effects on the Software, Specifications, Project timetable, and pricing.
5.3. Approval: Upon NFQ's response, the Parties shall meet to discuss and decide on the Change Request. If approved, necessary revisions to the Project timetable, Specifications, and pricing will be made and documented in a new SOW.
6. Warranty
6.1. Warranty of Performance: Subject to the exclusions and limitations of liability set out in this Agreement, NFQ warrants to the Client that it and its Affiliates will perform its obligations under this Agreement with reasonable care and skill, following industry practices and standards, and in compliance with Applicable Laws in force.
6.2. Exclusion from Warranty: The warranties in this Section and elsewhere in this Agreement shall not apply, and NFQ and its Affiliates shall not be liable, where:
(i) the breach of such warranty(ies) can be rectified or remedied by NFQ and/or its Affiliates in a reasonable timeframe and manner from the time it is made known to NFQ and/or its Affiliates, and is thereafter materially rectified or remedied;
(ii) in respect of the Work Results or Software, the breach of such warranty can be rectified or remedied in accordance with the rectification procedure set out in Part B of this T&C; (iii) the claim (whether by itself or aggregated with any other claim for damages arising out of this Agreement) exceeds or is excluded by any limitation of liability set out in the SOW or this Agreement;
(iv) the breach results from unauthorized modifications made to any of the NFQ Services, especially Work Results, whether by or on behalf of the Client or any other third party; (v) the breach results from the use of third-party hardware and/or software, or solutions for
the provision of NFQ Services and/or their integration into the Work Result; (vi) in the case of minor or immaterial deviations from the agreed or assumed Specification or in the case of just slight impairment of use; and/or
(vii) the claim relates to consulting services, legal services, and speaking engagements provided by NFQ and/or its Affiliates
6.3. Voluntary Rectification. If an error is caused by the Client or any other third party, through any acts or omissions, or any factor outside of NFQ’s control, NFQ may choose to rectify such errors at the Client’s expense. Any such rectification will be invoiced separately from the Remuneration.
6.4. Warranty Period: The warranty period shall be as specified in the SOW.
6.5. No Other Warranty: Save as set out herein, no warranties or conditions, whether express or implied are given by NFQ and its Affiliates to the Client with respect to this Agreement.
7. Cooperation and Client Obligations
7.1. Client Collaboration: Client is required to collaborate with NFQ and/or its Affiliates to enable the provision of NFQ Services, including but not limited to:
(i) promptly providing, not later than within 2 business days of NFQ’s or its Affiliates’ request, all necessary, complete, and accurate Client’s Information;
(ii) granting any necessary rights and access, including access to Client’s or third-party premises, if needed;
(iii) providing prompt feedback, and responses to support NFQ’s service delivery; and (iv) otherwise cooperating in good faith and free of charge. Inaccurate or incomplete Client’s Information may affect NFQ's ability to fulfil its obligations, for which NFQ shall not be liable.
7.2. Compliance and Use: The Client agrees not to use any NFQ Services in violation of any law or regulatory requirement, and to respect NFQ’s proprietary, confidentiality, or copyright entitlements. The Client warrants that it is entitled to disclose and use the Client’s Information provided to NFQ and/or its Affiliates and that usage of such Client’s Information by NFQ and/or its Affiliates does not infringe any third-party rights, and in default of which, the Client agrees to indemnify NFQ against any third-party claims in respect of the same. NFQ is entitled to discontinue its Services if there is doubt about compliance with this Section.
7.3. System Requirements: The Client is responsible for operating and maintaining suitable software and hardware equipment and a sufficient internet connection on its premises and those of its users, including without limitation any requirements specified by NFQ in the SOW. The Client must provide a common, state-of-the-art browser in the current version. The Client shall grant to NFQ, for the purposes of carrying out its obligations under and for the term of this Agreement, a non-exclusive, transferable, worldwide license, without charge, to use the software owned by the Client that is necessary for the delivery of the NFQ Services.
7.4. Data Transmission and Formats: Data input should primarily be transmitted via email in a digital format suitable for the content, using provided templates or electronic data in the requested format. Acceptable formats include .jpg, .png, .docx, .ppt, .xls, .csv, .json, .HTML, or those that have been agreed with NFQ on a case-by-case basis.
7.5. Notices: Notices and Change Requests shall generally be made via email.
7.6. Client’s Content: The Client is responsible for all content and data transferred to NFQ ("Client’s Content"). Client’s Content remains the property of the Client and will not be shared with third parties. The Client must ensure that Client’s Content does not infringe any third-party rights. Client’s Content, proposals, and instructions do not grant co-authorship of NFQ Services and affect the Remuneration.
7.7. Non-Compliance: If the Client fails to meet its cooperation obligations despite NFQ’s request, NFQ may terminate this Agreement after providing written notice and a reasonable deadline to rectify the non-compliance. Upon termination, NFQ may invoice the Client for NFQ Services rendered up to the termination date, or alternatively, for the agreed or projected total Remuneration minus saved expenses due to the premature termination.
8. Point of Contact
8.1. Each Party appoints a designated Point of Contact in the SOW to serve as the main representative responsible for communicating, coordinating, and managing Project matters (“Point of Contact”). Either Party may replace its Point of Contact after providing prompt notification to the other Party.
8.2. Points of Contact act as authorised representatives empowered to act on behalf of their respective Parties. Each Party is responsible for ensuring the formal and lawful authorization of its Point of Contact. The other Party is not obligated to verify this authorization. Any confirmations or decisions made by the Points of Contact are binding for their respective Parties.
9. Remuneration, Invoicing, Taxes
9.1. The Remuneration. For the provision of NFQ Services NFQ shall receive the Remuneration from the Client as outlined in the SOW. The Remuneration is to be determined in accordance with the Service Plan, Total Contract Price, daily rates, or hourly rates set out in the SOW, with additional disbursements, sundries and other expenses incurred on behalf of the Client such as incidental costs, travel expenses, and per diems to be charged separately. Payments are considered received upon credited to NFQ’s bank account. All payments are to be made free of deductions, transaction fees and other charges, which are the Client’s responsibility.
9.2. Payment Terms. The Remuneration shall be payable in the manner set out in the SOW and in the following manner:
(i) If all or any part of the Remuneration is payable upon the completion of any milestone or deliverable of the Project, a confirmation of delivery from NFQ to the Client (e-mail is sufficient) shall be binding on the Client in the absence of any fraud or (in the case of software development only) obvious Critical Error.
(ii) If any Software is being developed as part of the NFQ Services, for the avoidance of doubt:
a) the presence or occurrence of any defects or bugs that do not constitute Critical Errors;
b) Critical Errors that can be rectified or remedied in the manner set out in Part B of the T&C; and
c) Critical Errors arising from the acts or omissions of the Client or any other third party or otherwise through no fault of NFQ and/or its Affiliates,
shall not constitute grounds for annulling or suspending the Client’s obligation to pay for the NFQ Services in accordance with the terms and conditions laid down in this Agreement.
(iii) Certain Projects or Project phases may require advance payments as set out in the SOW. If such advance payments or invoices are not settled in full, NFQ may
a) suspend or cancel the Project after 10 Business Days of delivering written notice of such non-payment to the Client, or
b) suspend NFQ Services and extend the Project completion term by the period of non-payment.
(iv) All prices stated in the SOW are exclusive of disbursements and other expenses incurred on behalf of the Client and subject to the applicable statutory value-added taxes. (v) Unless otherwise stated in the SOW or the invoice itself, all invoices issued by NFQ in connection with the Project shall be paid within 14 days from its date of issue. (vi) For payments received later than the due date, NFQ may charge the Client at the rate set forth in the SOW.
(vii) Failure by the Client to pay any invoice for 30 days or more from its due date shall constitute a “material breach” under Section 14.2 (i).
9.3. Fee Estimates or Forecasts. Where the Remuneration set out in the SOW comprises a fee estimate or forecast, such estimate or forecast is subject to the qualifications and assumptions set out in the SOW and other reasonable qualifications and assumptions implied or imputed under applicable laws. If such qualifications and assumptions are exceeded or otherwise no longer hold true (e.g. due to circumstances for which the Client is responsible), NFQ shall be entitled to charge for such out-of-scope work or additional work based on NFQ's
applicable daily rates. For the avoidance of doubt, project overruns of up to 20% caused by force majeure events shall constitute out-of-scope work which will require changes to any applicable fee estimate or forecast. Force majeure events include, but are not limited to, pandemics or epidemics, natural disasters, hacker attacks, riots, armed or terrorist conflicts that have unforeseeable consequences for the performance of NFQ Services.
9.4. Inflation or Deflation Adjustment. NFQ shall have the right to adjust its monthly charges on the annual anniversary of Statement of Work in line with the inflation or deflation rate for the same period announced by the central bank or similar authority in the country where the invoices are paid. This does not apply to fixed-price projects. NFQ will inform the Client in writing 30 days ahead of the inflation or deflation adjustment.
9.5. Fees for Provided Services. Notwithstanding any other provisions of the Agreement, the refusal or suspension of NFQ Services shall not release the Client from the duty to settle accounts for the NFQ Services already provided.
10. Limitation of Liability
10.1. Notwithstanding any other provision of this Agreement, NFQ, its Affiliates and their respective directors, employees, representatives, advisors and agents (in each case, an “Excluded Person”) shall only be liable to the Client in the following cases:
(i) in cases of fraud, wilful default or gross negligence on the part of an Excluded Person; (ii) in cases of death, personal injury or bodily harm for which an Excluded Person is responsible;
(iii) for breaches of specific and express warranties, representations or guarantees given by NFQ under this Agreement; and/or
(iv) in cases of mandatory claims under the statutory product liability laws against NFQ. (v) And to the fullest extent permissible under applicable laws, where such claim (by itself and/or aggregated any other claim(s) arising out of this Agreement) does not exceed the limitation amount set out in the SOW.
10.2. NFQ shall also be liable for losses resulting from a material breach of its primary obligations. Primary obligations are fundamental duties essential to the Agreement, which were crucial for its conclusion and on which the Client may rely. If NFQ materially breaches its primary obligations due to simple negligence, its liability for any claim (by itself and/or aggregated any other claim(s) arising out of this Agreement) shall be limited to the foreseeable amount set out at the time of service performance. The foreseeable amount is determined by the Parties within in the SOW.
11. Indemnification by the Client
11.1. Subject to Section 11.2 below, the Client shall fully indemnify NFQ, its Affiliates and their respective directors, employees, representatives, advisors and agents (in each case, an “Indemnified Person”) against any and all claims, litigation, losses, damages, expenses, costs and liabilities ("Losses") due to third-party claims arising out of or in connection with:
(i) the Client's material breach of any provision of these T&C;
(ii) any claim by a third party against an Indemnified Person arising out of the Client’s actual or alleged disclosure and usage of the Client’s Information hereunder; or (iii) any claim by a third party against an Indemnified Person arising out of that Indemnified Person’s performance of NFQ’s and/or its Affiliate’s obligations hereunder.
11.2. The Client shall not be liable to indemnify an Indemnified Person if the claim is arising out of fraud, wilful default or gross negligence on the part of that Indemnified Person.
11.3. In the event of any third-party claims, the Client shall promptly, truthfully and completely provide NFQ with all necessary information for the examination and defence against such claim.
12. Intellectual Property Rights
12.1. License Rights: Notwithstanding any provision in this Agreement, the following shall apply: (i) NFQ’s IP Rights. NFQ holds and retains all IP Rights on Work Results. Nothing shall be construed as granting to any party any IP Right. Subject to the full payment of the agreed Remuneration, NFQ grants to the Client a non-exclusive and non-transferable license to use the Work Results, which is not limited in time, place and scope. (ii) Client’s IP Rights. Any IP Rights provided by the Client to NFQ for the provision of NFQ Services (“Client’s IP”) remains sole property of the Client. The Client grants NFQ a non-exclusive, worldwide license to use the Client’s IP to fulfil its obligations under this Agreement.
(iii) Third Party and Open-Source IP Rights. The Client acknowledges and agrees that NFQ may use open-source software components and AI tools within the developed Software, which may be subject to specific license terms, provided that such components do not impair the Client’s confidentiality or final Work Result. NFQ is not obliged to transfer, nor does it represent or warrant the transfer of (and the Client acknowledges and confirms) any IP Rights, title or benefits in any free software, open source software, third-party owned software, third-party licensed software, or any other software not originally developed by NFQ, all of which remain subject to their respective third-party or open-source licensing terms.
12.2. Reproduction and Reverse Engineering. The Client shall refrain from reverse engineering any Work Results. If Work Results (or part thereof) need to be reproduced for the purpose of adaptation, the Client may do so only if necessary for the intended use under this Agreement or if the original is lost, destroyed or rendered unusable. Any other copying or adaptation of the Work Results requires NFQ’s permission and unauthorized use will be considered an infringement of NFQ’s IP rights and the Client must indemnify for damages incurred by NFQ thereof.
13. Confidentiality
13.1. “Confidential Information” includes all commercial, financial, legal and technical and non technical information belonging to a Party, or products, or any other person (whether corporate or not) they’re commercially linked with, including NFQ’s Affiliates (each, a “Disclosing Party”) provided to the receiving Party (each, a “Recipient”) either directly or indirectly, before or after the signing of the SOW. Confidential Information may be supplied, disclosed, or communicated in written, visual, electronic or oral form.
13.2. Exclusions. Confidential Information excludes information that the Parties can prove:
(i) is or becomes public through no breach of confidentiality by each of the Party or its Representatives;
(ii) is lawfully known to the Recipient at the time of disclosure without an obligation of confidentiality;
(iii) is rightfully obtained from a third party without restriction and without a breach of a confidentiality obligation by the Recipient;
(iv) is independently developed by the Recipient without using any Confidential Information;
(v) is legally required to be disclosed by an applicable court of law, governmental or regulatory authority, provided that the Recipient must promptly notify, to the extent legally possible, the Disclosing Party so that the Disclosing Party may seek appropriate protection or remedy and/or waive the Recipient’s compliance with certain provisions of this Agreement; or
(vi) is authorized in writing by the Disclosing Party to be released from the confidentiality obligations herein.
13.3. Obligations of the Recipient. During this Agreement and for 5 years following its termination, the Recipient will:
(i) receive and hold Confidential Information strictly confidential, especially not disclose, transfer or provide such Confidential Information to third parties, and not permit any third party to access the Confidential Information, whether in whole or in part either directly or indirectly in any shape or form, save for professional advisers who are under similar obligations of confidentiality;
(ii) use Confidential Information only within the scope of this Agreement; (iii) apply reasonable measures to prevent disclosure, including, but not limited to:
a) secure storage and protect the Confidential Information in such as manner as to ensure that third parties be unable to familiarize themselves with such information;
b) notify third parties about the confidential nature of the information (where such information must be provided to third parties in order to provide/receive the respective services) and provide instructions regarding the particularities of storage of such information; and
c) ensure employees adhere to the confidentiality requirements;
(iv) maintain all confidential or proprietary markings, refraining from removing, destroying, or rendering them illegible;
(v) not copy, reproduce, or reduce to writing any part of the Confidential Information except as necessary and to ensure that any copies, reproductions or reductions to writing of Work Results shall be property of NFQ; and
(vi) return or destroy all Confidential Information upon request without undue delay, retaining no copies unless legally required, deleting to the extent technically possible, from any device or media containing it, unless otherwise stipulated by law.
13.4. Notification. Each Party agrees to, to the extent legally permissible, immediately notify the other Party in writing, of any required or lawful disclosure of Confidential Information, as mandated by law or competent authorities. The respective Party shall only disclose the other Party’s Confidential Information in accordance with the instructions of the Party whose Confidential Information must be disclosed.
13.5. Marketing. NFQ is entitled to feature the Client as a user of NFQ Services for presentation and marketing purposes, mentioning the Client's name/logo on public platforms like the Company's website or social media, along with a general description of the services provided. Specific details or confidential information will not be disclosed. Aggregated and anonymous business data may be used for statistical analysis or service enhancement, retaining all intellectual property rights over such information. NFQ related data or product information (including, but not limited to any image, screen shot, etc.) must not be publicly disseminated by Client without NFQ’s prior written consent, for example in press releases, in or to the media, on the Internet, in advertisements.
13.6. Survival of Provision. The confidentiality obligations set out in this Section apply to any and all Confidential Information received before and after the signing of this Agreement and continue to remain in effect post-termination.
14. Term and Termination
14.1. Term of NFQ Services: NFQ Services will be provided from the Effective Date specified in the respective SOW until the expiration of the term specified therein ("Term"). Each Party may only terminate this Agreement in accordance with Sections 14.2 to 14.5, and Section 16.3, unless otherwise stated in the SOW. Thereafter this Agreement shall terminate in accordance with Section 14.5 below.
14.2. Right to Terminate: Both Parties retain the right to terminate the Agreement without notice for reasonable cause.
14.3. NFQ’s Right to Terminate: NFQ may terminate this Agreement immediately, prior to the end of the Term, by issuing a written termination notice to the Client, including but not limited to the following circumstances:
(i) the Client is in material breach of any obligation (including late payment) under this Agreement;
(ii) any material provision of this Agreement is or becomes for any reason illegal, invalid and/or unenforceable;
(iii) legal or any analogous proceedings (other than frivolous or vexatious claims) in any jurisdiction have been initiated against the Client that could materially affect Client’s ability to perform its obligations under this Agreement;
(iv) any corporate action, legal proceedings or other procedure is taken in relation to: a) the suspension of payments, a moratorium of any indebtedness, winding-up, bankruptcy, dissolution, administration, judicial management, provisional supervision or reorganisation (by way of voluntary arrangement, scheme of arrangement or otherwise) of the Client; or
b) the appointment of a liquidator (other than in respect of a solvent liquidation), receiver, trustee, judicial manager, administrator, administrative receiver, compulsory manager, provisional supervisor or other similar officer in respect of the Client or any of its assets;
(v) the Client is unable or admits inability to pay its debts as they fall due, suspends payments, or commences negotiations with creditors (excluding any Lender) to reschedule its debts, or a moratorium is declared in respect of any indebtedness of the Client; or
(vi) the continued provision of the NFQ Services would, in NFQ’s opinion, damage NFQ’s and/or its Affiliates’ reputation or otherwise put its business or that of its Affiliates at risk.
14.4. Force Majeure. Events of force majeure, which render the NFQ Services substantially more difficult or impossible, shall entitle NFQ to defer the fulfilment of its services for the duration of the hindrance and a reasonable time thereafter. If because of the nature of the hindrance it cannot be expected that the service will be provided within a reasonable time, then each party shall be entitled to withdraw in whole or in part from this Agreement in respect of the part of the performance which has not yet been fulfilled.
14.5. Post Termination Obligations. Upon termination of this Agreement,
(i) the Project and this Agreement shall terminate, except for provisions expressed or by its nature intended to survive such termination and any accrued cause of action prior to such termination;
(ii) NFQ shall be relieved of any obligation to provide NFQ Services and may immediately cease the NFQ Services;
(iii) any outstanding sums owed by the Client shall become immediately due and payable without withholding or deduction; and
(iv) each Party shall, as soon as reasonably practicable and possible, return or destroy any proprietary software, all related materials, and documentation belonging to the other Party that is not covered by a current license, including any and all copies of the whole or any part thereof, and shall certify in writing that such materials have been returned or destroyed.
15. Data Processing
15.1. The Parties shall comply with the applicable data protection regulations relevant to Client country and shall regularly monitor compliance.
15.2. If and to the extent that one or more of the Parties have access to personal data during the Project or the Term of this Agreement, the Parties shall review the data protection implications before commencing processing and, if necessary, conclude a data processing agreement or a joint controllership agreement, which shall be attached to the SOW as an annex.
16. Miscellaneous
16.1. Parties. References to any Party shall include that Party’s successors in title and assigns or transferees permitted in accordance with the terms of this Agreement provided that the relevant property, right or liability has been properly assigned or transferred to such person.
16.2. Notice and Communications: Any notice or communication to be given under this Agreement shall be in writing and may be given to the relevant Party’s designated Point of Contact set out in the SOW. Any such notice or communication shall be deemed to have been received at the time of error-free transmission. In proving such service, it shall be sufficient to prove that no error message was received for the transmission of any e-mail.
16.3. Amendments. No oral ancillary agreements have been made. Any amendments, variations or additions to the SOW must be in writing and signed by both Parties. Signature must meet at least the standard of a qualified electronic signature under the Applicable Laws. NFQ may, with prior written notice to the Client, amend these T&C, if:
(i) the amendments are minor, of a purely technical or procedural nature with no material impact on the Client,
(ii) the amendments are required by applicable law, court rulings or administrative decisions; or
(iii) the amendments are predominantly beneficial to the Client.
The Client may reject any material amendment, in which case the prior version of the T&C shall remain in effect. If the Client rejects a material amendment, NFQ reserves the right to terminate the Agreement with 1-months’ notice. A material amendment is one that imposes a significant new obligation on the Client, alters an express contractual right or increases any existing obligation of the Client under this Agreement.
16.4. Severability. If any provision of this Agreement is or becomes invalid or unenforceable, in whole or in part, for any reason, including due to applicable law, the validity of the remaining provisions shall remain unaffected. The Parties shall replace the invalid provision with a legally valid term that most closely reflects its intended commercial purpose. The same applies to any gaps in this Agreement.
16.5. Counterparts. This Agreement may be executed in multiple counterparts, each of which, when delivered via facsimile, electronic mail in "portable document format” (".pdf"), or any other qualified electronic means under the Applicable Laws preserving the original appearance of the document, shall constitute one and the same instrument. The Parties
may enter into this Agreement by manually signing and transmitting a counterpart electronically (e.g., via facsimile, email, or qualified electronic signature platforms under the Applicable Laws). The receiving Party may rely such electronically executed and delivered document as if the original had been received. Qualified electronic signatures shall be recognised and construed as secure electronic signatures and deemed original and legally binding for all purposes.
16.6. Binding and Assignment. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and assigns. Either Party may assign or transfer any of its rights, benefits or obligations under this Agreement, provided that the assigning Party notifies the other Party in writing. Any assignment that would materially affect the other Party’s rights and obligations shall require prior written consent, which shall not be unreasonably withheld or delayed.
17. Governing Law and Jurisdiction
17.1. Governing Law. This Agreement and any contractual or non-contractual dispute arising out of or in connection with it shall be governed by and construed in accordance with the laws of the Socialist Republic of Vietnam.
17.2. Jurisdiction. The place of dispute resolution shall be Singapore.
17.3. Dispute Resolution. In case of disputes, the Parties may resolve any disputes amicably within 30 days of one Party notifying the other Party about the dispute in question. Any dispute that cannot be resolved amicably shall be submitted to arbitration at the Singapore International Arbitration Center (“SIAC”) in accordance with the Arbitration Rules of the Singapore International Arbitration Center (“SIAC Rules”), unless the Parties mutually agree on different applicable rules and/ or jurisdiction at the time of initiating the arbitration. The arbitral tribunal shall be comprised of three members. The seat of the arbitration is Singapore. The language of the arbitration shall be English, unless the Parties agree otherwise when initiating the arbitration. Notwithstanding the foregoing, either Party may apply for interim measures or injunctive relief before or during the pendency of any efforts to resolve a dispute amicably.
Part B: Software Development and Engineering Services
Part B exclusively applies to Clients who have ordered software development services or engineering services for specific information technology problems.
1. Software Development Services
1.1. Services. NFQ Services may include Software Development as part of the Project. Software Development Services involve but are not limited to planning, developing, delivering, and implementing information technology programs for purposes outlined in the SOW. Additionally, NFQ will prepare development and user documentation for the Client related to the provided information technology programs.
1.2. On-Site and Remote. NFQ personnel may provide NFQ Services either at the Client’s premises or remotely.
2. Service Provisioning Capacities
2.1. Request. The Client may request Service Provisioning Capacities as outlined in the SOW and its Annexes, following these T&C. At the minimum, the Client must specify the tasks to be completed, the required skill level, and the duration of services ordered (in days or months) via email.
2.2. Team Members. NFQ will, at its sole discretion, assign team members based on the Client’s tasks and requirements, including any necessary replacement of team members.
3. Working Groups
3.1. Composition of Working Groups. NFQ may establish a working group for the Project. NFQ may change the composition of its working group after notifying the Client's Point of Contact in writing. The group will work in a self-organized manner, without being bound by Client’s instructions.
3.2. Client’s Working Group. If necessary for Project completion, the Client will establish a working group and inform NFQ's Point of Contact about its members and any changes.
3.3. Change Request. If a Change Requests (see Part A, Section 5) requires a separate working group, a new SOW must be signed outlining the specific Project. NFQ will then form this working group within 3 Business Days of signing the new SOW.
3.4. Working Group Meetings: Minutes of all working group meetings shall be taken and sent to the Client's working group (if any) and each Point of Contact by email within 1 Business Day.
3.5. Authorized Representatives: Members of the working groups are duly authorised representatives of the respective Parties. Each Party is responsible for proper authorizing its representatives, with no obligation for the other Party to verify authorization.
4. Acceptance of Work Results
4.1. Acceptance. NFQ will notify the Client at least 10 Business Days before the date the Work Results are formally delivered to the Client. The Client shall test the functionality of the Work Results and provide comments to the same in a timely manner. The functionality testing must be documented in minutes of acceptance, and the acceptance must be signed in writing by both Parties.
4.2. Declaration of Acceptance. If the functionality testing shows that:
(i) (in the case of Software) the Software is free of Defects or Critical Errors that do not arise from the acts or omissions of the Client or any other third party or otherwise through fault of NFQ and/or its Affiliates; or
(ii) (in the case of other Work Results) the Work Results materially meet the agreed Specifications, (if any) and otherwise do not severely impact the Client's ability to use or derive value from the Work Result,
(collectively, the “Mandatory Acceptance Conditions”), the Client must declare acceptance and NFQ will release the Work Results without undue delay. For the avoidance of doubt, minor errors and defects do not justify the Client’s refusal of acceptance. Any errors shall be documented in the minutes and rectified in accordance with Section B.6 below.
4.3. Refusal of Acceptance. The Client may refuse acceptance only if the Mandatory Acceptance Conditions are not met. If the Client unreasonably refuses acceptance, NFQ may demand acceptance within 15 Business Days. If the deadline passes without valid written explanation for why the Mandatory Acceptance Conditions are not met, the Client shall be deemed to have accepted the Work Result.
5. Warranties
5.1. Warranties for Developed Software. NFQ warrants that any Software developed by NFQ and/or its Affiliates in accordance with Specifications set forth in the SOW shall, for the duration of the applicable Warranty Period and subject to the exclusions and limitations of liability in this Agreement:
(i) meet all material requirements set out in the Specifications set forth in the SOW, and (ii) be reasonably fit for the intended purposes as specified in the SOW.
5.2. Warranty Period. The warranty period is specified in the SOW.
5.3. Warranty Exclusions. NFQ shall not be liable for claims against the warranty in Section B.5.1 above if any of the limitations or exclusions in Part A. Section 6.1 apply. Product descriptions do not constitute guarantees unless separately agreed to in writing.
6. Procedure for Rectification
6.1. Notification of Errors. During the Warranty Period, the Client shall notify NFQ in writing within 5 Business Days of initial detection of any of the following:
(i) “Bugs”: Errors in the Software program's source code that do not materially deviate from the agreed-upon Specifications as outlined in the SOW;
(ii) “Defects”: Any material deviation from the agreed-upon Specifications as outlined in the SOW that do not qualify as Critical Errors; and
(iii) Critical Errors: Critical Errors as defined in Part A. Section 2 of these T&C. Defects and Critical Errors shall be reported with a clear and comprehensible description of the error symptoms, accompanied, if possible, by supporting evidence such as logs, screenshots, or other documents demonstrating the error. The error report must enable the reproduction of the reported error. If the Defect or Critical Error cannot be reproduced, NFQ shall not be obligated to provide a remedy.
For the avoidance of doubt, the Parties acknowledge that due to the inherent complexity of software development, Software cannot be developed entirely free from technical errors. Accordingly, not every error shall give rise to a warranty claim. With respect to Bugs, NFQ shall have sole discretion to determine if and whether rectification is required, and if so, which remedy or alternative workaround will suffice.
6.2. Rectification Procedure for Software. In rectifying the errors notified to it under this paragraph, NFQ shall have the discretion to:
(i) choose the manner of rectification, which may include delivering or installing a new program release or a workaround, improving the Software or providing other NFQ Services, insofar as it materially restores the core functionality, performance, or usability of the Software or materially restores on the Client's ability to use or derive value from the Software; and
(ii) specify the period of rectification, insofar as such period is reasonable and does not severely impact the Client's ability to use or derive value from the Software.
6.3. Rectification Procedure for defective Work Results. Unless the Work Result is Software (which shall then be rectified in accordance with Section 6.2 above), the following rules shall apply:
(i) choose the manner of rectification, which may include delivering or installing a new program release or a workaround, improving the Work Result or providing other NFQ Services, insofar as it materially restores on the Client's ability to use or derive value from the Work Result; and
(ii) specify the period of rectification, insofar as such period is reasonable and does not severely impact the Client's ability to use or derive value from the Work Result.
Part C: Task Resolution Services / Support Services
Part C exclusively applies to Clients who have ordered support or programming services for the effective resolution of information technology issues, elimination of technical defects, or implementation of tasks, whether these services are provided at a fixed hourly rate or through a Service Plan.
1. Task Resolution Services
NFQ Services include defect resolution, task implementation, programming, training, consultancy, communication with the Client (via phone, email, or video conferencing platform), and assessing additional service requirements (“Task Resolution Service”).
2. Service Delivery
2.1. Service Plan. NFQ will provide Task Resolution Services according to the selected Service Plan in the SOW and the Client may pay according to the payment modalities and deadlines in the SOW. If NFQ Services exceed a Service Plan, extra time will be charged based on the actual hours worked by NFQ's and/or its Affiliate’s employees, with double rates for services provided outside NFQ's regular Business Hours.
2.2. Task Prioritization. Upon registration, each task will be categorized based on its nature: (i) High Priority: Critical issue preventing the desired outcome through standard procedures, directly impacting business operations and resulting in financial damages. (ii) Regular priority: Issue causing inconvenience but not preventing system use. (iii) Low priority: Issue occurring in specific or rare situations, causing minimal inconvenience.
2.3. Reaction times. NFQ and/or its Affiliates will respond to tasks within specified reaction times based on their priority mentioned above. Reaction times will commence during Business Hours of the next Business Day following notification of the task registration if such notification occurs after Business Hours. If task was registered and received during Business Hours, reaction times will start immediately in that Business Day.
2.4. Task Resolution Hours. NFQ may spend up to 4 working hours for Task Resolution Services, regardless of its priority. If more time is needed, or if the maximum hours limit is reached without completion, or if NFQ determines at the time of response to the Client's task registration that more than 4 hours will be needed, NFQ will promptly notify the Client and they will agree on the expected number of working hours. Time spent resolving tasks will be billed hourly at rates agreed upon in the SOW.
3. Acceptance of Work Results and Warranty
3.1. Acceptance. If any Work Result is produced, part B Section 4.1. applies accordingly. 3.2. Warranty. The Warranty Period is defined in the SOW.
3.3. Rectification. If any Work Result is produced, part B Section 6 applies accordingly.
Part D: Consulting Services and Speaking Engagements
1. Consulting Services
1.1. Services. NFQ Services may include consulting, offering expert guidance and support to Clients in areas such as but not limited to: strategic planning, technology assessment, software architecture, project management, quality assurance, IT infrastructure optimization, and training (“Consulting Services”).
1.2. NFQ’s Responsibilities. NFQ provides independent instruction-free advice and services. A concrete success is neither owed nor guaranteed. The Client shall be solely responsible for deciding on the timing, type and scope of the measures recommended by or agreed with NFQ.
1.3. Warranty. NFQ consultants decide when, where, and how to perform their assignments, without being subject to Client instructions. NFQ consultants shall not be subject to any authority from the Client to give instructions. No specific outcome or guaranteed success is promised.
1.4. Client’s Responsibilities. The Client is solely responsible for determining the timing, type, method, place of work and scope of measures recommended by NFQ or agreed upon with NFQ. This responsibility remains even if NFQ assists in implementing agreed plans or measures.
1.5. Scope of Work. The specific content and scope of NFQ's work will be outlined in the SOW. If additional or supplementary activities become necessary, NFQ will inform the Client accordingly. The SOW may be extended at the Client's request, or a new SOW may be agreed upon.
1.6. Sharing Results. Sharing or presenting NFQ’s written elaborations or results to third parties requires prior consent from NFQ. Consulting Services are conducted solely in the Client’s interest and on behalf of the Client. Third parties are not included in the scope of this Agreement between the Client and NFQ, even if the third party contributes to the payment for NFQ Services.
1.7. Advances Payments. Subject to the SOW, NFQ may invoice reasonable advance payments for Consulting Services. Consulting Services will commence upon settlement of the initial advance invoice. Time and remuneration forecasts are non-binding estimates, as the time required may depend on factors beyond NFQ’s control.
2. Speaking Engagements
2.1. Services. NFQ Services may include speaking engagements, presentations, and moderations for events, which involve communication and interaction beyond traditional consulting services.
2.2. Warranty. Speaking Engagements are not subject to any warranty.
3. Cancellation Policy
3.1. Client Cancellation. If the Client cancels the speaking engagement up to 30 days before the event, the Client agrees to pay 50% of the agreed fee. If the cancellation occurs within 30 days of the event, the Client agrees to pay the entire agreed fee. In addition to the cancellation fee, the Client shall reimburse the Speaker for any non-refundable expenses incurred due to the cancellation, including but not limited to flight rebooking or cancellation fees.
3.2. Speaker Cancellation: If the Speaker cancels the engagement after the order confirmation, NFQ will make reasonable efforts to provide a suitable replacement speaker. While NFQ will endeavour to propose a qualified replacement, there is no guarantee of availability or acceptance by the Client. The Client retains the right to decline the proposed replacement speaker. In the event of a cancellation by the Speaker and if no suitable replacement is agreed upon, any advance payments made by the Client will be promptly refunded.
3.3. Workshops and Meetings. In the event of a cancellation by the client, the following conditions apply:
(i) Workshops: If a workshop scheduled to be held in person is cancelled with less than 72 hours' notice, NFQ reserves the right to charge the client for the estimated time consumption associated with the workshop.
(ii) Meetings: If a meeting is cancelled with less than 24 hours' notice, NFQ reserves the right to charge the client for the estimated time consumption associated with the meeting.
The estimated time consumption will be calculated based on the agreed-upon duration and scope of the workshop or meeting. The charge will reflect the hourly rate agreed upon in the contract multiplied by the estimated hours planned for the engagement, including preparation time already undertaken by NFQ.
In the event of a cancellation by the workshop facilitator the provisions outlined in Section 3.2 shall apply accordingly.