Colean general terms and conditions for consulting services

1. Introduction and Scope

1.1 Application of Terms: These terms and conditions apply to all software development and configuration consulting services (“”Services””) provided by Colean, a brand name under which Colean d.o.o. operates. The terms outlined herein are binding upon acceptance of an engagement and govern the contractual relationship between Colean (“”we”” or “”us”” or the “”firm””) and its clients (“”you”” or the “”client””).

1.2 Definition of Services: The Services provided by Colean include, but are not limited to, “”Cloud services””, which refer to services delivered via the internet where Colean utilizes software, hardware, and storage space of third parties and may make personal data available to suppliers of this software, hardware, and storage space. The Services are tailored to meet the specific requirements of each client and may encompass custom software development, system configuration, and expert consulting.

1.3 Scope of Engagement: “Engagement” refers to the oral or written agreement in which Colean undertakes to provide Services to you. This includes all interactions and transactions where Colean commits to deliver specified Services under agreed terms and conditions.

1.4 Amendments and Revisions: These terms may be amended or revised by Colean periodically. Such amendments will be effective upon posting on the Colean website or direct communication to clients. Your continued engagement of our Services following such modifications constitutes acceptance of the new terms.

2. Engagement Terms:

2.1 Contract Formation: A contractual agreement is established between Colean and the client when the client formally accepts a quotation issued by Colean. Acceptance can be indicated through written agreement, electronic communication, or any other explicit means.

Colean also offers consulting services that can be purchased online on the Colean website. In that case, Colean reserves the right to reject the client offer to purchase Colean Consulting services or apps for any reason, at its absolute, unfettered discretion. By using our Services, you acknowledge that:    

2.2 Pricing and Invoicing: The pricing for services offered by Colean is outlined in the service proposal and corresponding invoice. All prices are exclusive of VAT and other applicable taxes. Unless when paying upfront directly on our website or specifically stated otherwise in the quotations or invoices, the total price is payable without discount within 15 days from the invoice date. Payment should be made by transfer, referencing the details provided in the quotation(s) and/or invoice(s).

2.3 Advance Payments and Deposits: In cases where an advance or deposit is stipulated at the signing of the quotation, such payment must be made before the commencement of services, as detailed in the relevant quotation(s) and/or invoice(s).

2.4 Payment Schedule: Services are billed according to a payment schedule communicated in, or attached to, the service quotation. Drafts and acceptances of partial payments do not constitute a novation or derogation from this stipulated deadline.

2.5 Payment Completion: Payment is considered complete when the funds are made available to Colean. Any partial payments received will be first allocated to the non-privileged part of the claims.

2.6 Prohibition of Compensation or Offset: Any compensation or unilateral offsetting of any indemnities or penalties against the price is strictly prohibited, except with the express agreement of both parties involved.”

3. Client Obligations

3.1 Cooperation for Service Execution: You, as the client, are required to provide full cooperation to facilitate the execution of the services. This includes timely communication, provision of necessary information, and access to relevant systems and personnel. Your active participation is crucial for the effective and efficient delivery of the services outlined in the Engagement.

3.2 Access and Security: In the case of Cloud services or other IT-related services, it is imperative that you grant us access to the necessary systems, software, and data. This access must be provided in a secure manner, ensuring the integrity and confidentiality of your systems and data, while enabling us to perform our services effectively.

3.3 Compliance with Terms: You agree to comply with all terms and conditions outlined in the Engagement, including any specific requirements or constraints related to the services provided. This compliance is essential to maintain a productive and legally sound working relationship.”

4. Service Execution

4.1 Execution Standards and Quality Assurance: Colean is committed to delivering services with professional excellence, ensuring adherence to industry standards and client-specific requirements. Services will be executed with skill, care, and diligence to meet quality standards and agreed timelines.

4.2 Modifications and Client Cooperation: Any changes in service scope, deadlines, or deliverables require mutual written agreement. Efficient service delivery depends on the client’s timely cooperation, including providing necessary information and materials.

4.3 Compliance with Legal and Ethical Standards: Colean will adhere to applicable laws and regulations during service execution. Clients are also expected to maintain similar standards, particularly in accuracy of information and confidentiality.

4.4 Service Acceptance and Quality Compliance: The service is considered accepted by the client upon code delivery, allowing for invoicing. Clients have a 30-day period post-delivery to report any service quality issues or defects. Responsibility for proving defects lies with the client. After this period, the client assumes the risk for any loss or damage related to the service.”

4.5 Consulting Time Utilization: In case consulting time has been purchased through our website, it must be utilized within 183 days (approximately 6 months) from the date of the purchase order. Unused consulting time beyond this period will be forfeited without eligibility for refund or exchange. This clause ensures the timely and effective use of consulting resources.

5. Confidentiality and Data Protection:

5.1 Mutual Confidentiality Obligations: Both Colean and you, the client, agree to maintain the confidentiality of all proprietary information or materials exchanged during the course of the Engagement. This encompasses technical, commercial, financial information, and any other data deemed confidential. The obligation of confidentiality extends to preventing disclosure to third parties, except as required by law or with the prior written consent of the other party.

5.2 Handling of Confidential Information: All confidential information received from each other must be treated with the same degree of care as each party treats its own confidential information, but in no event with less than reasonable care. The information shall be used solely for the purpose of executing the obligations and services under the Engagement and not for any other purpose.

5.3 Data Protection Compliance: In adherence to applicable data protection laws and regulations, any personal data exchanged or processed as part of the Engagement must be handled in compliance with such laws. Both parties are responsible for ensuring that they adhere to the relevant legal requirements in their handling, processing, and transfer of personal data.

5.4 Duration of Confidentiality Obligation: The confidentiality obligations set forth in this section shall survive the termination or conclusion of the Engagement. Both parties agree that these obligations will continue for a period of three years following the end of the Engagement, unless the information becomes publicly known through no fault of either party.

5.5 Breach of Confidentiality: In the event of a breach or suspected breach of this confidentiality obligation, the affected party must be promptly informed, and both parties shall cooperate in good faith to prevent or mitigate the effects of such a breach.”

6. Intellectual Property Rights in Website Development and Product Configurations

6.1 Pre-existing Code: All pre-existing code, scripts, functions, and software components developed by Colean and used in the course of delivering services remain the exclusive property of Colean. The client is granted a non-exclusive, non-transferable license to use such pre-existing code as part of the final product delivered.

6.2 Custom Development: For custom-developed components, including algorithms specifically created by or for the client, the intellectual property rights will be as follows:

• If the development is based significantly on the client’s own algorithms or proprietary information, the client retains ownership of these specific components.
• If the custom development is an extension or modification of Colean’s pre-existing code, or if it is primarily based on Colean’s technical input, Colean retains ownership of such developed intellectual property. However, the client will be granted rights to use these components as part of the overall product.

6.3 Joint Development: In instances of joint development where both Colean’s pre-existing code and the client’s proprietary algorithms or ideas are used to create new intellectual property, ownership of such IP will be determined based on the contribution of each party. This may result in joint ownership, or a specific arrangement may be negotiated and documented in the agreement.

6.4 Licensing and Restrictions: Any licensing of the final product to the client will include terms and conditions that reflect the above ownership and contribution arrangements. This license will specify any limitations on the use, modification, or redistribution of the product.

6.5 Third-Party Code and Compliance: Where third-party code, including open-source software, is used in the development process, Colean ensures compliance with the respective licenses. The client must also adhere to these third-party licenses in their use of the final product.”

7. Fees and Payment Terms

7.1 Fee Structure: The prices for services provided by Colean are exclusive of VAT and other applicable taxes. The fee structure will be detailed in the Engagement agreement or corresponding invoice and will reflect the scope and nature of the services provided.

7.2 Payment Terms: Payment for services rendered by Colean is due as specified in the invoice. Unless otherwise mentioned, the price is payable without discount within the timeframe stipulated in the invoice, typically within 15 days from the invoice date.

7.3 Late Payment Consequences: In the event of late payment, the following consequences will apply:

• Immediate due payment of all claims held by Colean.
• Mandatory payment by the client on first demand, without exceptions.
• Penalties at the legal rate plus 10 percentage points.
• Possible requirement of guarantees or cash deposits for continuation of services.
• A legal pre-litigation recovery indemnity of 40 euros, plus a conventional indemnity of 100 euros.
• Reimbursement of banking, transport, and other expenses incurred due to payment delays.

7.4 Handling of Late Payments: Persistent delays in payment may lead to late fees, interest charges, or suspension of services. Colean will communicate such actions in advance, in line with agreed terms.”

8. Dispute Resolution

8.1 Notification of Complaints: Complaints related to the services provided or disputes regarding invoice amounts must be notified to Colean in writing within 30 days of the service delivery date. If a mistake, defect, error, or shortcoming was not reasonably discoverable within that period, complaints must be made within 5 days of discovery, and no later than 60 days after the service delivery date.

8.2 Obligation to Pay Despite Complaints: Filing a complaint does not suspend the obligation to pay. You are not entitled to defer or refuse payment for services that are not the subject of the complaint, ensuring that unrelated services are appropriately compensated while the dispute is being resolved.

8.3 Resolving Legitimate Complaints: If a complaint is found to be legitimate and timely, you will be given the option to:

• Have us adjust the charged fee.
• Have the service in question rectified or redone at no additional charge.
• Terminate the Engagement (or remaining services) in exchange for a refund proportionate to the fee already paid.

8.4 Escalation to Arbitration: If the dispute cannot be resolved through the above steps, it shall be referred to arbitration as outlined in Item 18.

9. Termination

9.1 Right to Terminate: Colean reserves the right to terminate the Engagement under certain conditions. Termination may occur in the event of a breach of contract terms, failure to fulfill obligations, or if circumstances arise that materially affect the ability to execute the services. Termination will be executed in accordance with the terms specified in the Engagement and subject to any applicable laws.

9.2 Client-Initiated Termination: The client may terminate orders or the Engagement under specific conditions agreed upon in the Engagement. This may include situations where services are not provided as per agreed standards or timelines. The termination process and any associated conditions or penalties will be clearly outlined in the Engagement.

9.3 Notice of Termination: Either party wishing to terminate the Engagement must provide written notice to the other party. This notice should specify the reasons for termination and adhere to any notice period defined in the Engagement.

9.4 Consequences of Termination: Upon termination, all pending services and obligations will be concluded as per the terms of the agreement. Any outstanding payments for services rendered up to the point of termination will become immediately due. The client will be responsible for these payments.

9.5 Post-Termination Obligations: Following termination, both parties must fulfill any obligations that are outstanding at the time of termination. This may include final payments, return of materials, or other actions necessary to effectively close the Engagement.”

10. Limitation of Liability

10.1 Scope and Quality Compliance: Colean commits to high-quality service standards. However, in the event of any defects or shortcomings in services, the client must communicate these to Colean within 30 days following code delivery. The client is responsible for proving any alleged defects. Beyond this period, liability for loss or damage related to the delivered service transfers to the client.

10.2 Cap on Liability: The total liability of Colean for any claims arising out of or in relation to the Engagement, whether in contract, tort, or otherwise, shall be limited to the total fees paid by the client for the services directly related to the claim.

10.3 Notification of Claims: Claims against Colean must be brought promptly and in any event within a specified period (e.g., one year) from the date the client becomes aware, or ought reasonably to have become aware, of the facts giving rise to such claim.

10.4 Exceptions to Limitation: The limitations on liability set forth above shall not apply in cases of gross negligence, willful misconduct, or as otherwise provided by applicable law.

10.5 Liability for Third-Party Services: Where services involve third-party providers or reliance on third-party products, Colean shall not be liable for any failure or deficiency attributable to such third-party services or products.”

11. General Provisions

11.1 Force Majeure: Definition: Force majeure events are unforeseen circumstances beyond the control of either party, such as natural disasters, war, or other major disruptions.

Effect on Obligations: In the event of force majeure, affected obligations under the Engagement are suspended for the duration of the event. Colean will endeavor to resume services as soon as possible after the event concludes.

11.2 Amendments to the Agreement: Amendments to the Engagement must be made in writing and agreed upon by both parties. This ensures that any changes are clearly documented and mutually acceptable.

11.3 Assignment: The client shall not assign their rights or obligations under the Engagement without the prior written consent of Colean. This clause ensures that the contractual relationship is maintained between the original parties unless otherwise agreed.

11.4 Severability: If any provision of the Engagement is found to be invalid or unenforceable, the remaining provisions will continue to be valid. This clause ensures that the rest of the agreement remains intact even if a part of it is deemed legally void.

11.5 Waiver: Failure or delay by either party in enforcing any term of the Engagement does not constitute a waiver of that term. This means that either party can still enforce the term later, despite any initial inaction.

11.6 Entire Agreement: This Engagement constitutes the entire agreement between Colean and the client, superseding all prior agreements and understandings, whether written or oral, relating to its subject matter.”

12. Amendments and Modifications

12.1 Management of Modifications: Procedure for Changes: Any modifications or updates to the services, terms, or conditions of the Engagement must be mutually agreed upon in writing. This process ensures that both parties formally acknowledge and consent to the changes.

Scope of Modifications: Modifications may include changes in service scope, delivery timelines, pricing, or other contractual terms.

Documentation: All amendments will be documented and added as an annex to the original agreement, maintaining a clear record of the evolution of the Engagement.

12.2 Right to Modify General Conditions: Colean reserves the right to modify the general terms and conditions under which its services are offered. Such modifications will be communicated to existing clients in a timely manner and will come into effect as specified in the notice.

Clients have the right to accept or reject these modifications. Rejection of significant modifications may affect the continuation of services.

12.3 Communications Regarding Amendments: All communications related to amendments or modifications must be in writing. This includes emails, formal letters, or documented meetings.

The preferred method and contact details for such communications will be as specified in the Engagement or agreed upon by both parties.”

13. Waiver

13.1 Definition of Waiver: A “”waiver”” refers to the voluntary relinquishment or surrender of some known right or privilege by a party to the agreement. Waivers in the context of the Engagement will be specifically defined and agreed upon.

13.2 Conditions for Waiver: Explicit Communication: Any waiver under the Engagement must be expressly stated in writing. Implied waivers through conduct or failure to enforce are not recognized.

No Impact on Future Rights: Waiving any provision or right on one occasion does not constitute a waiver of that provision or right on any subsequent occasion. Each waiver is case-specific and does not affect the enforcing party’s rights in future circumstances.

13.3 Non-Diminishing of Rights: Granting a waiver does not diminish or alter the other terms of the Engagement. All other provisions remain in full force and effect unless explicitly modified in writing.

13.4 Waiver of Breach: Should a party choose to waive a breach of the agreement by the other party, this waiver does not constitute a waiver of any subsequent breach. Forgiveness of one breach is not forgiveness of future breaches.

14. Severability

14.1 Validity of Provisions: In the event that any provision of the Engagement is found to be invalid, unlawful, or unenforceable by a court of competent jurisdiction, such finding will not affect the validity of the remaining provisions. The invalid or unenforceable provision will be considered severable from the rest of the Engagement.

14.2 Adjustment of Severed Provisions: If a provision is deemed severable, both parties agree to negotiate in good faith to replace the severed provision with a new one that legally reflects the original intent as closely as possible. This ensures that the fundamental objectives of the Engagement are preserved.

14.3 Continuation of Agreement: The remaining provisions of the Engagement shall continue in full force and effect. The severance of any individual provision will not nullify the overall agreement nor release either party from their respective obligations under the remaining terms.

15. Conflict or Inconsistency

15.1 Addressing Conflicts: In the event of any conflict, inconsistency, or discrepancy between the different terms and conditions, documents, or provisions of the Engagement, the following hierarchy will be applied to determine precedence:

– Specific provisions of the Engagement or service agreement written in the Estimate/Offer.

– General terms and conditions laid out in this document.

– Any annexes, addenda, or supplementary documents attached to the Engagement.

15.2 Interpretation: The aim is to interpret the Engagement in a manner that is consistent and harmonious. If a conflict arises, the interpretation should favor the preservation of the overall intent and commercial objectives of the agreement.

15.3 Resolution of Inconsistency: If a conflict or inconsistency is identified, Colean and the client will work together to resolve the issue in good faith. This may involve amending the conflicting provision to reflect the agreed-upon intent and maintain the integrity of the Engagement.

15.4 Continuation of Obligations: Pending the resolution of any conflict or inconsistency, both parties agree to continue to fulfill their respective obligations under the Engagement to the best of their ability, without taking advantage of the ambiguity or conflict.”

16. No Poaching

During the execution of the Engagement and within one and a half year of termination of the Engagement, neither party shall employ persons or external contractors who are or were involved in executing the Engagement on behalf of the other party or conduct negotiations with such persons about employment or consulting services, other than in consultation with the other party.”

17. Assignment and Third-Party Rights

17.1 Assignment to Successor Entity: Colean reserves the right to assign or transfer its rights and obligations under this agreement to a successor entity in the case of a merger, acquisition, or sale of all or substantially all of its assets. Such an assignment shall not require the consent of the client, but the client shall be notified in writing of any such corporate event.

17.2 Maintaining Agreements Post-Assignment: Upon any such assignment or transfer, the successor entity shall be bound by the terms of this agreement, and this agreement shall remain valid and in effect with all existing customers. Colean ensures that any successor entity will uphold the commitments and service levels agreed upon in this Engagement.

17.3 Exclusion of Third-Party Rights: Other than as stated in 17.1 and 17.2, this agreement does not confer any rights on any third parties under the Contracts (Rights of Third Parties) Act or similar laws. No third party shall have any rights to enforce any terms of this agreement.”

18. Governing Law and Arbitration

18.1 Governing Law: This agreement is governed by and construed in accordance with English Law. This applies to both contractual and non-contractual obligations arising out of or in connection with this document.

18.2 Arbitration Process: All disputes, controversies, differences, or claims arising out of or in connection with this document, including questions regarding its existence, validity, or termination, shall be finally settled under arbitration. The customer has the option to choose between the following arbitration centers:

The Ljubljana Arbitration Center: Arbitration will be conducted by one or more arbitrators appointed in accordance with the Ljubljana Arbitration Center rules. The seat of arbitration shall be Ljubljana, and proceedings shall be conducted in English.

The Chambre Arbitrale International de Paris: Arbitration will be conducted by one or more arbitrators appointed in accordance with the Paris Chamber’s rules. The seat of arbitration shall be Paris, and proceedings can be conducted in English or French.

18.3 Choice of Arbitration Center: The customer may choose their preferred arbitration option between the Ljubljana Arbitration Center and the Chambre Arbitrale International de Paris.”