Terms and Conditions of Service Agreement
General terms and conditions of the service agreement have been entered into by and between Owatec and the customer.
This service agreement (“Service Agreement”) has been entered into by and between the following parties:
Owatec Group Oy, a company organized and existing under the laws of Finland, having its registered office in Rytiniementie 1, 91910 Tupos, Finland, Business Identity Code FI 2520193-3, (the “Supplier”), and
[ ], a corporation organized and existing under the laws of [jurisdiction] having its registered office in [street address, city, country], Business Identity Code [ ], (the “Company”).
The Supplier and the Customer are hereinafter referred together as “Parties” and each individually as “Party”.
Contact persons of the Supplier:
[Title, Name, Tel, Email]
[Title, Name, Tel, Email]
Contact persons of the Customer:
[Title, Name, Tel, Email]
[Title, Name, Tel, Email]
means the annex that is defined and is incorporated in this Service Agreement.
means confidential information as defined in clause 13.
means the situation in which the Service fails to meet the specification set for the Outcoming Water and the failure is not due to the deviation in Incoming Water and is attributable to the Supplier.
means the units used of the water treatment and any auxiliaries such as mounting plates, monitoring devises, piping etc.
means the process / waste water from the Customer process that is to be treated in the Treatment Process. The quality, flow and quantity of the Incoming Water is specified in the Annex 2.
means all forms of intellectual property rights, regardless of whether registered or not, including but not limited to patents, utility models, design right, processes, and confidential know-how.
means the process / waste water that has been treated by the Equipment in the Treatment Process. The quality and quantity of the Outcoming Water is specified in the Annex 2.
means the service as defined in the Annex 1 and which the Supplier provides to the Customer.
means this Service Agreement together with its Annexes.
means the Supplier proprietary process in which the impurities of the Incoming Water are removed.
3. Background and purpose of the agreement
The Supplier operates in the water and environment industry and provides solutions for industry water and sludge treatment.
In addition to offering treatment services including the technology implementation for production and maintenance facilities of companies in various areas of industry, the Supplier provides expert services and development and optimization projects.
The Customer operates in the field of [name industry] [To be completed].
Pursuant to this Service Agreement the Supplier provides the Customer the Service for the process / waste water treatment purposes.
4. Service Agreement Documents
This agreement document and the following Annexes are part of the Service Agreement:
1. Content of the Service [A1]
2. Specifications for the Incoming Water and Outcoming Water
The above defined Annexes are an inseparable part of the Service Agreement. If there are any discrepancies in the Service Agreement documents, the documents are valid in the following order: this agreement document shall govern and thereafter the Annexes in their numerical order.
5. Content of the Service
The Service consists of:
2) delivery and installation of the Equipment;
3) operation and remote monitoring of the Treatment Process; and
4) maintenance of the Equipment.
The content of the Service is defined in detail in the Annex 1.
6. Supplier’s responsibilities
The Supplier is responsible to:
1) define the Service including the Equipment based on the Customer’s Incoming Water, installation site and requirements for the Outcoming Water;
2) deliver and install the Equipment; [If applicable]
3) perform the Service according to this Service Agreement and with professional workmanship;
4) ensure that the Treatment Process performs within the specified limits;
5) deliver the consumable chemicals and other material required in the Treatment Process;
6) operate and remotely monitor the Treatment Process;
7) maintain the Equipment,
8) correct the Treatment Process and Equipment in a case of Defect; Information and communication
9) inform the Customer in advance of any planned changes, modifications and interruptions in the Service;
10) inform the Customer of any unexpected interruptions of the Treatment Process and Service without undue delay;
11) inform the Customer without undue delay if detects Incoming Water falling outside of the specification limits as defined in the Annex 2;
12) inform the Customer without undue delay if detects Outcoming Water falling outside of the specification limits as defined in the Annex 2.
7. Customer’s responsibilities
The Customer is responsible to:
1) deliver all necessary and required information related to the Incoming Water and installation site and requirements for the Outcoming Water to the Supplier and ensure that the information is accurate and valid;
2) acquire and maintain required environmental permits for the water treatment;
3) ensure that the Incoming Water quality, flow and quantity remain as specified in the Annex 2;
4) take an insurance to cover the full value of the Equipment; Treatment Process and Equipment
5) allow the Supplier to place and keep the Equipment on the installation site;
6) allow the Supplier to carry out all the activities needed for the Service;
7) permit the Supplier personnel an access to the Equipment at any time during the Service;
8) allow the Supplier to do modifications and changes to the Equipment and the Treatment Process as the Supplier considers and which have no negative impact on the customer operation or Outcoming Water;
9) use, operate and maintain the Equipment and Treatment Process only according to the instructions given by the Supplier;
10) reload the consumable chemicals and other materials that are required for the Equipment to perform the Treatment Process as defined in the Annex 1; Installation site
11) prepare the installation site according to the requirements set for the installation site by the Supplier in the Annex 1 [if applicable];
12) maintain the installation site in good condition and remove all plant population and snow that might have an impact on the functioning of the Equipment;
13) prevent an unauthorized access to the Equipment; Interfaces and connections
14) provide required water supply and water connection as defined in the Annex 1;
15) provide required power supply and connection as defined in the Annex 1; Information and communication
16) notify the Supplier [how many days] in advance of any changes and modifications that might have an impact on the Incoming Water quality, flow or quantity;
17) notify the Supplier of any changes in Incoming Water quality, flow quantity that are outside of the specification without undue delay;
8. Price and Payment terms
(A) Volume based, including the consumables[A2]
Price of the Service is [xxx] EUR (VAT 0 %) per cubic meter (m3) of the Incoming Water. [Agreed price is valid for period of [yy] years.]
The Supplier shall invoice the Service monthly and based on the actual volume of the Incoming Water [or Outcoming Water]. A minimum monthly fee of the Service is [xxx] EUR, which is invoiced from the Customer even if the volume of Incoming Water decreases temporarily.
Consumable chemicals and other materials are included in the Service price.
(B) Fixed monthly, no consumables included
The price of the Service is [xxx] EUR per month (VAT 0 %). The Supplier shall invoice the Service monthly.
The Service does not include the consumable chemicals or other materials such as activated carbon that are needed for the Treatment Process. The costs of the consumable chemicals and other materials consumed shall be invoiced monthly.
The price of the Service includes the content of the Service as defined in this Service Agreement and its Annex 1. Any additional work shall be invoiced from the Customer on an hourly basis as defined below:
Work hour per a person: [xx] EUR (VAT 0 %)
Any additional work shall be invoiced once a month together with the Service invoice. The Supplier is entitled to invoice reasonable travel costs, travel time, daily allowances and related expenses as well as the material costs from the Customer.
The payment term is 14 days net.
The invoicing period of the Service shall start on the date the Treatment Process has been put into operation as defined in the Annex 1. [Annex 1: tarkennetaan kuuluuko pilotti tms mukaan laskutettavaan jaksoon]
The Supplier is entitled to invoice as the ramp-up costs a sum corresponding to two months Service price at the effective date of the Service Agreement. The amount of such advance payment will be fully compensated to the Customer within the invoices during the first year of the Service.
In a case the Service content shall be updated or changed so that the Equipment is to be modified or new unit to added into the Equipment, the Parties undertake to negotiate and agree of the impacts on the Service price.
The Supplier is entitled to make reasonable changes to the Service price and prices of the additional work once a year by giving the Customer a written notice four (4) months prior the month the changes come to effect. In the event the Supplier increases the Service price or the prices of the additional work, the Customer shall be entitled to terminate this Service Agreement to end on the day the changes come to effect by sending a written notice thereof to the Supplier within two (2) months of the receipt of the notice from the Supplier regarding the changes to the Service price or prices of the additional work.
Payments which have become due and payable shall bear an overdue interest (from the due date) in accordance with the Finnish Interest Act in force at that time.
The Customer is responsible for the costs related to the power and water that are required for the Service as defined in the Annex 1. In a case the delivery and installation of the Equipment is included into the Service content according to the Annex 1, the Customer is responsible for the execution and costs related to construction work needed to be done to prepare the installation site suitable for the Equipment.
9. Delivery and installation
The Supplier delivers the Equipment to the Customer’s installation site at as defined in the Annex 1. The Supplier confirms the delivery date and installation date.
The Supplier’s delivery shall cover the Equipment as defined in the Annex 1. The Supplier installs the Equipment including the connections and pipelines between the units of the Equipment. In addition to that the Supplier connects the Equipment to the Customer’s industry process (for the intake of the Incoming Water), water supply and power supply as defined in the Annex 1. The Customer shall provide the correct type of connection interfaces that fit for the Equipment as defined in the Annex 1. In addition to that the Customer is responsible to perform all the required construction work so that the installation site is ready and suitable for the Equipment as defined in the Annex 1.
In a case the delivery is delayed for the reason attributable to the Customer, The Supplier shall be entitled to compensation for the damages caused by the delay. In a case the delivery or installation is delayed for the reason that is attributable to the Customer, the Customer shall be liable to pay liquidated damages to the Supplier for each commencing week of delay at 2 (two) percent of the value of [six (6)] months Service price, however, not exceeding 10 % of the price in question. In a case the actual damage caused by the delay exceeds the sum of the liquidated damages, the Supplier is entitled to compensation for the damage that corresponds to the actual damage.
10. Monitoring the Service
The Supplier commits itself to perform the Service so that the specification for Outcoming Water as defined the Annex 2 is fulfilled.
The Customer is responsible for controlling the Outcoming Water Quality by the tests and analyses once a month. If there is a deviation detected in the Outcoming Water as defined in the Annex 2, the Customer shall notice the Supplier without undue delay. The Supplier undertakes to find out the reason for the deviation and Correct the Service in a case of a Defect.
In a case the Defect is material, and it continues to appear constantly for more than three (3) months, the Customer has the right to terminate this Service Agreement as defined in clause 14.
If the detected deviation in the Service is caused by a reason that not attributable to the Supplier, such as quality of the Incoming Water being outside of the specification as defined in the Annex 2, the Supplier may charge the Customer for the deviation investigation and correction work done.
11. Changes and modifications in the Service
The Supplier has right at its discretion and without any notice to the Customer to implement a change or modification into the Service that has no impact on the operation of the Customer or which does not cause exceeding of the specification limits of the Outcoming Water as defined in the Annex 2.
The Supplier shall inform the Customer in advance of any changes and modifications that might have an impact on the Customer operation. In a case the change or modification into the Service will impact on the Customer operation the Parties shall agree the implementation of such change or modification. This means for example if the Customer needs to limit its operation because of the modification or change originated by the Supplier. The Supplier will also notice the Customer if the change or modification the Supplier plans to take impacts on the Outcoming Water quality or quantity so that that the specified limits are exceeded for some limited period of time. The Parties shall agree together suitable times for the scheduled maintenance periods of the Equipment and the Customer industry process.
If the Supplier is obligated to do a change or modification to the Service because of the Customer request or otherwise due to the Customer including the Incoming Water being outside of the specification, shall the costs of such change or modification invoiced from the Customer as defined in the clause 8 of this Service Agreement.
Any change or modification that has a permanent impact on the Service Content, the Supplier’s responsibilities or Pricing of the Service as agreed in this Service Agreement shall be agreed together and added as an undersigned amendment to this Service Agreement.
12. IPR and ownership to the Equipment
All rights, title and interest (including but not limited to any and all intellectual property rights) in and to the Service and Treatment Process and to all amendments or modifications to the Service and Treatment Process are and shall at all times remain the sole and exclusive property of the Supplier.
The Supplier or an investor owns the Equipment. The ownership of the Equipment shall not be transferred from the Supplier or the investor to the Customer during the validity term of this Service Agreement or after the termination of this Service Agreement unless the Parties do not agree otherwise.
13. Confidentiality and non-disclosure
Neither Party shall disclose to a third party nor use for any purpose other than for the proper fulfillment of the obligations and responsibilities under this Service Agreement the information received from the other Party in whatever form under or in connection with this Service Agreement without obtaining the other Party’s written permission. The Parties expressly undertake not to publish or disclose the existence or terms of this Service Agreement to any third party without a prior written consent of the other Party, except as may be required by applicable law.
The foregoing undertaking shall not apply to any such information which:
(a) was in the public domain at the time of the disclosure of such information or later be-came part of the public domain without breach of these confidentiality obligations;
(b) can be shown to be in the possession of the Party receiving confidential information prior to the disclosure;
(c) the receiving Party can demonstrate having received from a third party after the disclosure of such information by the other Party to the receiving Party hereunder, as a matter of right, and having no direct or indirect obligation to the other Party with respect to the same, provided that such third party did not acquire such information directly or indirectly from the other Party; or
(d) can be shown to have been independently developed by personnel of the receiving Party having no access to the information.
Each Party agrees to protect the confidentiality of the information at least with the same care as it exercises in respect of its own confidential information and business secrets but no less than due care. The obligations set forth in this clause 13 shall apply for as long as the Service Agreement is valid and for five years after the Service Agreement has been terminated.
The Supplier is allowed to use the Customer as refence of the water treatment services on its web site and in its marketing material.
14. Term and termination of the Service Agreement
This Service Agreement shall come into effect when both Parties have undersigned it. The Service Agreement shall be valid for a fixed term of XX years.
(A) Continuation based on negotiations
The Parties undertake to negotiate the continuation of the Service Agreement at the latest six (6) months prior to the end of the fixed term and decide if are willing to continue the Service. If the Parties decide to continue the Service, the Service Agreement shall continue to be valid until further termination notice of six (6) months.
(B) Automatic continuation unless terminated particularly
The Service Agreement shall be valid until the end of the fixed term and shall thereafter be automatically renewed for subsequent periods of one (1) year each time unless notice of termination is given by one Party to the other Party at least six (6) months prior to the expiration of the initial fixed term or any renewal period.
Right to terminate
The Party shall be entitled to terminate the Service Agreement with immediate effect in the event the other Party is declared bankrupt, files for bankruptcy, goes into or is placed in liquidation or becomes insolvents.
The Supplier shall be entitled to terminate the Service Agreement with immediate effect if the other Party is in substantial breach of the Service Agreement and fails to remedy such breach within thirty (30) days after the receipt of written notice by the injured Party. The substantial breach shall mean, but is not limited to, the Customer fails to perform its payments as defined in this Service Agreement.
In a case the Service Agreement has been terminated because of the Customer is in breach of the Service Agreement, The Supplier shall be entitled to the liquidated damages from the Customer as follows:
(A) The liquidated damages shall correspond to the sum defined based on invoices of the six previous months. If the Service has not continued for the six months, the liquidated damages shall correspond to the sum of the minimum fees for twelve (12) months as defined in the clause 8.
(B) The sum of the liquidated damages shall correspond to the six (6) months Service price as defined in the clause 8.
If the actual damage exceeds the sum of the liquidated damages, the Supplier shall be entitled to a compensation that covers the actual damage.
The Customer shall be entitled to terminate the Service Agreement if the Supplier fails to correct the material Defect that has appeared constantly within three (3) months of its detection as defined in clause 10. In addition to that the Customer has right to terminate this Service Agreement if the Supplier increases the Service price or the prices of the additional as defined in clause 8.
Obligation to cooperate
The Customer has an obligation to cooperate with the Supplier after the termination of the Service Agreement. The obligation to cooperate becomes valid at the moment of termination and is valid for six (6) months. During that period of time the Customer shall support the Supplier with uninstallation, disconnection and moving of the Equipment and other Supplier owned material.
15. Liability and limitation of liability
The Party shall be liable to the direct damages it has caused to the other Party by the acts or acts of negligence in breach of this Service Agreement.
The liability of the Parties under this Service Agreement is limited to maximum a sum that corresponds to the Service price for six (6) months.
Neither Party shall be liable for any indirect or consequential cost or damage, including but not limited to profit or loss, unless such damage is caused by a gross negligence, wilful act or omission.
Notwithstanding the aforesaid, no limitation of liability shall be applicable to damage or loss arising out of death, personal injury or damage to the property or caused by a breach of confidentiality obligations specified in clause 13 or the provisions concerning the IPR and Ownership of the Equipment specified in clause 12.
16. Insurance Policy
The Customer shall undertake to acquire and maintain an insurance that covers all the property damages to the full amount of the Equipment value for the period of the time the Equipment is located at the Customer’s installation site. The Customer shall designate the Supplier as the beneficiary regarding the Equipment. The Customer shall submit a certificate describing the validity of the insurance at the beginning of the first insurance period and upon a separate request to the Supplier.
The Customer shall acquire and maintenance a liability insurance of [XXX XXX (number in letters)] euros for the term of the Service Agreement.
The Customer is not entitled to transfer this Service Agreement to a third party without a written consent of the Supplier. The Supplier has the right to transfer this Service Agreement to a third Party by noticing the Customer XX days / moths in advance of the transfer of the Service Agreement.
18. Amendments to the Service Agreement
Amendments, changes and modifications in this Service Agreement shall be agreed mutually, presented in writing, and amended into this Agreement.
19. Force Majeure
Neither Party shall have any liability to the other Party or be deemed to be in default of this Agreement as a result of any delay or failure in performing its obligation and responsibilities under this Service Agreement to the extent that any such delay or failure arises from causes beyond the control of such Party, including, but not limited to, unexpected acts or regulations of any governmental or supra national authority, war or national emergency, accident, fire, riot, pandemic, strikes, lock-outs and industrial disputes.
The Party invoking a force majeure event shall immediately notify the other Party of the nature of such event and its anticipated duration. If the force majeure event does not cease within [three (3)] months, the Party not affected by it shall be entitled to terminate the Agreement [with immediate effect] after consulting the other Party. A written notice of the termination shall be delivered to the affected Party.
20. Applicable law and settlement of disputes
This Agreement shall be governed by and construed in accordance with the laws of Finland.
Any dispute, controversy or claim arising out of or relating to this Service Agreement, or the breach, termination or validity thereof, that the Parties are not able to negotiate and solve by themselves, shall be finally settled by arbitration in accordance with the Arbitration Rules of the Finland Chamber of Commerce.
(a) The number of arbitrators shall be one (1).
(b) The seat of arbitration shall be in Oulu, Finland.
(c) The language of the arbitration shall be Finnish. However, the evidence may be presented also in English.
Before entering into the arbitration, the Parties undertakes to negotiate and try to solve the dispute, controversy or claim arising out of or relating to this Service Agreement, or the breach, termination or validity.
Notwithstanding the foregoing, the Supplier shall, at its discretion, have the right to initiate legal proceedings against the Customer in any competent court of law for the purposes of collecting unpaid payments under this Service Agreement.