Nio Software and Services Agreement
Note: This section of the website states the standard Nio software and services agreement, which can be changed at Nio’s discretion from time to time. This version 2023/2/1 updated on 14 Feb 2023 and supersedes version 2022/5/1 updated on 09 May 2022.
This Nio software and services contract or agreement (hereafter referred to as the “Agreement”) is entered today via this document, or via a previously accepted proposal for Nio supplied software and services by you, the receiver, hereafter called “Customer”, and Nio Digital Limited, a company registered in Trinidad & Tobago with company number N2213 (95) with its trading address at Level 2 Invaders Bay Tower, Invaders Bay Off, Audrey Jeffers Highway, Port of Spain, Trinidad and Tobago, hereafter called “Nio”, Jointly referred to herein as “Parties”.
By subscribing to this Agreement, the Customer is agreeing to be bound by the following terms and conditions:
1. Nio DBP
Nio’s offering of software and services are collectively referred to in this document as the Nio Digital Business Platform, or the Nio DBP. Components include software, hosting, services provided to implement the system, agreed support.
2. Subscription basis
The Nio DBP is charged as a subscription service, and access to this platform is contingent on payment for its continued use.
3. Detailed scope of platform and associated work
Nio will provide access to components of the Nio DBP and associated services to Customer as specified in the Proposal (quotation, sales order, purchase order and any email or attachment mentioned within the documents of the sales process).
The Nio DBP may include software and services developed and delivered by Nio, its affiliates, its partners such Odoo SA, or their affiliates or partners. In all cases, the Customer is bound by software licence agreements for each component by their respective software manufacturers, many of which are open source software providers.
5. Start Date and Term
Customer will start its subscription to the Nio DBP from the date specified in the Proposal for a minimum period of thirty-six (36) months, after which the Agreement continues on automatically via a rolling additional month added, until terminated. Parties can terminate the Agreement giving one calendar month of notice to the other side after the initial 36 months have expired.
6. Fees and currency
Nio’s Digital Platform subscription are usually charged in USD and professional service packs in TTD. Nio has TTD and USD bank accounts in Trinidad. Should Customer wish to make payment using Debit or Credit cards, payments will be collected by a Nio sister company.
7. Payment modes
Should Customer make payment by bank transfer, then it agrees to pay all bank charges for both sides, ensuring that Nio receives the whole amount to be paid. Should it choose to pay using PayPal or credit/debit card, Customer agrees to add 3.99% to cover Nio’s merchant charges.
8. Subscription payments
At the start of the assignment Customer will pay at least one year of payment in advance, thereafter at least quarterly in advance. The subscription charges will increase annually by the average annual rate of inflation.
9. Nio Professional Services Charges
Nio Professional Services Charges: are available for purchase in Professional Service Packs (PSP) of 100 hours priced at the rate mentioned in the proposal, and have a validity of one calendar year from the date of issuance. These hours will be used by Nio to implement the agreed initial solution or perform services at Customer’s request.
10. Nio obligations
Nio shall provide software and services as described within the Nio DBP and perform agreed services with reasonable skill and care, and also be responsible for the performance of its sub-contractors.
11. Customer obligations
Customer shall carry out its agreed role within the assignment to the expected quality and agreed timeframes and respond to requests for decisions, approvals, and consultation and usually within two working days. Customer accepts that delays caused by Customer could impact delivery times of the project and Customer may be liable for extra costs that Nio may incur as a result of such delay.
12. Delivery acceptance
Customer agrees that it is its responsibility to check the quality of materials and services supplied by Nio prior to final acceptance.
13. Intellectual Property Rights (IPR) and Data:
The IPR of all work produced by Nio and its affiliates, or partners will remain with Nio. For purposes of this Agreement, “Data” shall mean any data or information of Nio’s or its partners’ technology platforms, its services and Customer’s data. Nio is authorised to access and use Data in connection with its performance of this assignment and to develop its digital business platform.
Payments are due within 15 (fifteen) calendar days from the date of invoice, beyond which a lack of payment will cause Nio Digital Platform access to be terminated using the procedure outlined below. Where any invoice is disputed, Customer shall advise Nio of the nature of the dispute in writing (using email is also possible) within 5 (five) business days of the invoice date and immediately pay any undisputed balances.
15. Termination process
Should Customer’s payment not arrive within 15 days of starting the engagement with Nio, then Nio can terminate the DBP contract within the first 30 days itself.
If however, the Customer has gone live and payments have been made in the past, then Nio recognises it has a duty of care towards the successful running of the Customer’s business. In this case, Nio will reduce services in a gradual manner over a 2 month period using these steps, with each step obligating Customer to pay Nio, an additional TT$ 5,000 for each step:
- After 2 weeks: Issue a formal warning to start the termination process
- After 4 weeks: Switch off 50% of the non-core processes (as decided by Nio)
- After 6 weeks: Switch off the remainder of the non-core processes (as decided by Nio)
- After 8 weeks: Switch off core processes (as decided by Nio)
- Nio to return all Customer data it has.
All taxes imposed as a result of the existence or performance of this Agreement shall be borne and paid by the party required to do so by the applicable law.
Nio warrants that all work will be undertaken and provided with reasonable skill and care and it will correct any errors in its work free of cost if reported within 30 days of delivery. Nio will not be liable for any consequential loss or damage if any caused by the work delivered. The maximum loss or damages that can be claimed on Nio is the cost of the specific assignment.
18. Indemnification Representation and Warranties
Each party (the “Indemnifying Party”) hereby agrees to indemnify the other party and the other party’s officers, directors, employees, and licensees (the “Indemnified Parties”), and agrees to defend and hold harmless the Indemnified Parties, from and against any and all liability, damage, loss or expense (including, without limitation, settlement costs, judgement, fines, reasonable attorney’s fees, other defence and investigation costs) arising from any claim, demand, action or proceeding (whether such claim, demand, action or proceeding is threatened, pending or completed) (“Claim”), alleging the breach of any of the representations, warranties, undertakings, duties, or obligations of the Indemnifying Party set forth in this agreement, provided, however, that the Indemnified Parties shall give prompt notice in writing to Indemnifying Party of the assertion of any such Claim, and provided further that Indemnifying Party shall have the right to select counsel and control the defence of the Claim, subject to the right of the Indemnified Parties to participate therein.
19. Staff Solicitation
Unless agreed in writing, during the term of this Agreement and for two (2) years thereafter, Customer and Nio will not encourage, solicit, or hire either directly or indirectly any employee of the other party or the named sub-contractor, for any reason. In case of breach, the organisation making the offer of employment, shall pay to the other an amount equal to three times such person’s remuneration as agreed compensation to the other for the disruption that such inducement would cause to the efficient conduct of the other’s business.
20. Sub-Contractor Solicitation
Customer recognises that Nio uses sub-contractors to carry out its day-to-day business and that the relationship between Nio and its subcontractors is vital to the continued survival of Nio. Therefore, Customer shall not approach any of Nio’s named or subsequently formally advised sub-contractor or its employees or subcontractors directly nor award the services or any part of the services or any other assignment during the assignment period and for 24 months thereafter. In case of breach, Customer shall pay Nio 30% of the total awarded assignment costs being limited to a maximum of US $100,000 as introduction fees and compensation for loss of opportunity for all assignments initiated within a period of 24 months after engagement of Nio’s sub-contractor or its employees or subcontractors by Customer.
Each party (“Receiving Party”) agrees that it will hold all confidential information of the other party (“Disclosing Party”) in trust for the sole benefit of the Disclosing Party and for the exercise of the limited rights expressly granted to the Receiving Party under this Agreement. The Receiving Party shall take all steps reasonably necessary to preserve the confidentiality of the Confidential Information of the Disclosing Party, including but not limited to, those steps that the Receiving Party takes to protect the confidentiality of its own most highly Confidential Information.
Nio shall endeavour to archive all work done for Customer for safe-keeping and retrieval but it is agreed that Nio shall not be held responsible for lost or corrupt files. Nio shall supply to Customer copies of data files available with them on Customer’s request, provided they are permitted by law. Any costs that Nio may incur for this purpose shall be reimbursed by Customer.
23. Termination for Material Breach
Each party shall have the right to terminate this Agreement (i) in the case of any breach of any condition of this Agreement and/or its schedules by the other party, which the other party fails to cure within five (5) days following written notice from the affected party specifying such breach, or (ii) upon the other party’s insolvency or liquidation. In the event of such termination, either party shall have no further liability or obligation to the other party or any of its contractors with respect to this Agreement, except for any obligations existing up to and including the date of termination.
24. Equitable Remedy
Both parties shall first attempt to use discussions and informal arbitration to solve their differences, if any and solve disputes by specific performance. Only if no mutually satisfactory resolution to disputes is reached, may each party resort to the law as applicable for remedy.
25. Force Majeure
Neither party shall be deemed in default of this Agreement to the extent that performance of their obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural, disaster, civil unrest, act of government, sabotage of material or supplies or any other cause beyond the control of such party; Provided, however, that such party gives the other party written notice thereof promptly and, in any event, within ten calendar days of discovery thereof. In the event of such a Force Majeure, the time for performance or cure shall be extended for a period equal to the duration of the Force Majeure but not exceeding one month.
This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.
All notices, invoices or other writings which either party is required, or may desire, to send or deliver or serve upon the other shall be delivered by hand, or by mail postage prepaid, or sent via email or facsimile with a confirming copy deposited in the mail, postage prepaid, addressed to the parties at the registered addresses as indicated at the beginning of this proposal.
Nio shall be deemed to have the status of an independent contractor, and nothing in this Agreement shall be deemed to place the parties in the relationship of employer-employee, principal-agent, or partners or joint ventures.
Except where notified otherwise in writing, each party grants the other a non-transferable, non-exclusive, royalty free, worldwide licence to reproduce and display the other party’s name, logos and trademarks, solely for the purpose of referring to the other party as a customer or supplier, on websites, press releases and other marketing materials.
Customer consents to Nio, its associated partner companies and its subcontractors using Customer’s corporate name as a reference in marketing and advertising materials which Nio may from time to time prepare in connection with the Services it provides to its Customers.
No variation of this Agreement is valid or binding on the parties unless confirmed in writing and signed by all parties to this Agreement. Communication and signatures can also be sent electronically.
In the event that any clause or any part of any clause in this Agreement should be considered to be unenforceable, unlawful or void, then that clause or that part of the clause shall be severed from the Agreement and the remaining provisions of this Agreement shall remain in full force and effect.
Any term and condition of this Agreement may be waived or qualified without independent consideration at any time by a party entitled to the benefit thereof by a written instrument executed by such party. No omission, delay, or failure on the part of either party in exercising any rights hereunder, and no partial or single exercise thereof; will constitute a waiver of such rights or of any other rights hereunder.
34. Entire Agreement
This Agreement constitutes the entire Agreement between the parties pertaining to the subject matter hereof and supersedes all prior and contemporaneous representations, agreements, negotiations, and understandings, oral or written. This Agreement may be modified only by an instrument in writing duly executed by both parties.
35. Governing Law and Disputes
This Agreement shall be governed by and construed in accordance with the laws of Trinidad & Tobago and the parties hereto submit to the jurisdiction of the courts of the city of Port of Spain.
Dispute: In the event of a dispute ensuing from the interpretation or the performance of this Agreement, the parties undertake to first seek a solution through mediation and conciliation.
37. Costs, Attorney’s Fees
Should any action or proceeding arising from this Agreement, whether it be in tort, contract or otherwise, be brought by any party, including but not limited to, any court action or arbitration, the liability to pay all costs and expenses incurred in connection therewith, including but not limited to, reasonable attorneys’ fees shall be decided by the court of competent jurisdiction or arbitration tribunal as the case may be and the parties agree to abide by such decision.