Terms & Conditions – Suxeed (Orchestra Sales Dev. LTD)

These Terms & Conditions, together with the executed Engagement Form (the “Engagement Form”), form the entire agreement (the “Agreement”), dated as of the Effective Date, and entered into by and between Orchestra Sales Development Ltd. a company incorporated under the laws of the State of Israel, with registration number 516195229 (“Orchestra”) and the Customer identified in the Engagement Form (the “Customer”) (each a “Party”, and collectively the “Parties”).

1. Interpretation. Unless otherwise defined herein, all capitalized terms herein shall have the meaning ascribed thereto in the Engagement Form.  
2. The Services. Orchestra is an expert in providing cold prospecting and business development services based on technology, resources, leads, methods, know-how, prospects and contact lists of Orchestra (the “Services”). The Customer hereby wishes Orchestra to provide it with the Services in accordance with the terms hereof: 
   1. Setup – The setup process is to define the Customer’s business and prospecting strategy, during which Orchestra’s teams shall have calls with the Customer, prepare a written brief and a complete playbook plan (which shall include phone scripts, email templates, discovery questions, objections, and qualification scripts) (the “Setup Services”). 
   2. Full-Time Equivalent Sales Consultant– The sales development effort shall be carried out by one or more salesperson(s), which together amounts to the equivalent of a full-time basis (the “Sales Consultant FTE”). 
   3. Prospect Listing – As part of the Services, Orchestra shall provide the Customer with approximately eighty (80) new accounts per month, whereas an “account”, shall include information about a new prospected company, such as emails and contact details of between 2 and 8 key decision-makers in the prospected company, which will be sourced and delivered by Orchestra directly into the Costumer’s CRM system and remain the property of the Customer (the “Prospect Listing Services”). 
   4. Qualified Meetings. “Qualified Meetings” shall refer to commercial sales meetings with prospected companies booked by Orchestra and that abide by the qualification criteria detailed in Annex-A attached to the Engagement Form. Orchestra shall be entitled to a commission for each Qualified Meeting as set forth in the Engagement Form. Any failure of the Customer to attend the meeting will be considered as the Customer’s automatic approval and qualification of the meeting as a Qualified Meeting. In the event that the Customer notifies Orchestra in advance that it is precluded from attending a meeting for a good reason, Orchestra will utilize its reasonable efforts to reschedule such meeting, as deemed possible under such circumstances. 
   5. The Customer may object to the qualification of the meeting as a “Qualified Meeting” within 48 hours after the meeting. Any failure to do so, will automatically qualify the meeting as Qualified Meeting. In the event of dispute with regard to the automatic qualification of a meeting, Orchestra shall decide on such a claim made by the Customer, at its sole discretion based on the qualification criteria, in good faith, and in an objective manner.
   6. In any case where the Customer continues the sales process by scheduling another meeting, call or email with the prospected company, the meeting subject to the dispute shall be deemed  qualified and due by the Customer, and the Customer shall have no right to claim otherwise in that matter.  
   7. In case the Customer contests a meeting and Orchestra finds out that the Customer has continued the sales process and has continued talking with the prospect (email, call, meetings), the Customer will be charged twice the meeting fees on this meeting.

3. Monthly Report; Invoice. At the end of each month, Orchestra shall provide the Customer with a detailed summary of Services rendered during the preceding month, including total days worked by Orchestra, success fees, commissions, leads generated (the “Monthly Report”), and a corresponding invoice (the “Monthly Invoice”). The Customer shall be entitled to provide comments to the Monthly Report and to the Monthly Invoice within 15 days of receipt thereof. Failure to provide comments shall be deemed acceptance thereof.  
4. Fees. The Customer shall pay Orchestra, all fees in connection with this Agreement and the Services provided therewith, and all as stipulated in the Engagement Form (the “Fees”). The Fees shall include the following fees: 
   1. Setup Fee – a single payment due and payable upon the signing of the Agreement, for the provision of the Setup Services.  
   2. Sales Consultant FTE Fee – a fixed fee incurred on a monthly basis, for the provision of the Sales Consultancy Services; 
   3. Prospect Listing Fee – a fixed fee incurred on a monthly basis, for the Prospect Listing Services.
   4. Qualified Sales Meeting Commission – a fixed fee incurred per each sales meeting booked by Orchestra according to Section ‎2(iv).

5. Payment Terms. Payment terms shall be as detailed in the Engagement Form. 
6. Delayed Payment. 
   1. Any delay in payment of all or part of an amount due to Orchestra on its due date under this Agreement will automatically bear (from the day following the due date for payment shown on the invoice) late interest, at the rate of 5% for every 15 days period, and a flat-rate compensation of € 40 for collection costs. 
   2. In any case of late payment of more than thirty (30) days, Orchestra shall have the right to terminate this Agreement without prior notice. In such a case, the sums invoiced will remain due by the Customer, and the latter will also be liable for the Early Termination Fee in accordance with Section 10.3 

7. Taxes. The Fees shall be exclusive (net) of any taxes, customs, and fees, which may apply, including without limitation VAT (if applicable). 
8. Tax Gross Up. All payments to be made by the Customer to Orchestra hereunder shall be made free and clear of and without deduction for or on account of taxes unless the Customer is required to make such a payment subject to the deduction or withholding of taxes, in which case the sum payable deduction or withholding is required to be made shall be increased to the extent necessary to ensure that Orchestra receives a sum net of any withholding or deduction equal to the sum which it would have received had no such deduction or withholding been made or required to be made.
9. Non-Solicitation. The Customer should not be in direct touch with Orchestra’s Sales Consultants without the presence of Orchestra’s managers. The Customer undertakes that during the Term and for a period of 1 year thereafter, it shall not, directly or indirectly, solicit for employment or engage the Sales Consultants directly, in any manner, without the prior written approval of Orchestra. If the Customer hires a Sales Consultant FTE from Orchestra during the Term and for a period of 1 year thereafter, the Customer will pay Orchestra, as liquidated damages, the sum of EUR 50,000 within a month.
10. Term and Termination. This Agreement shall be in effect during the Initial Term commencing from the Effective Date. At the expiration of the Initial Term, this Agreement will automatically renew for unlimited subsequent periods of 12 months each (each a “Renewed Term”, and collectively with the Initial Term the “Term”), unless otherwise notified by Customer to Orchestra at least 2 months prior to the expiry of the Initial Term or Renewed Term (as the case may be). 
    1. Orchestra may terminate this Agreement:
       1. for any reason by providing the Customer with a prior written notice of 15 days.
       2. if the Customer commits any material breach of the Agreement and, in the case of a material breach capable of remedy, fails to remedy such breach within 15 days following receipt of written notice thereof by Orchestra; or
       3. immediately, if the Customer is involved in any proven and serious act or conduct that jeopardizes the reputation of Orchestra;
       4. immediately, if the Customer makes any voluntary arrangement with its creditors or becomes subject to an administration order or has an administrator or receiver appointed or enters into liquidation or insolvency proceedings or anything analogous to any of the foregoing under the law of any jurisdiction.
    2. The Customer may terminate this Agreement for any reason subject to providing Orchestra with a written notice of at least two (2) months prior to the expiration date of the Initial Term or Renewed Term (as the case may be). The Customer hereby acknowledges that pursuant to such termination notice, the Agreement will effectively terminate only upon the expiry of the Initial Term or Renewed Term (as the case may be).
    3. In the event that: (i) the Customer terminates this Agreement in breach of Section 10‎(ii); and/or (ii) becomes insolvent or otherwise falls under Section 10(i)(d), the Customer shall be liable to pay Orchestra, an “Early Termination Fee” of the amount of EUR 10,500 per each Sales Consultant FTE allocated to Customer, multiplied by the number of months during which the Customer was not entitled to terminate this Agreement according to Section 10. Such an amount shall constitute liquidated damages and is deemed a genuine estimate of Orchestra’s damage suffered as a result of such wrongful termination.

11. Rights and Obligations upon Termination. Upon termination or expiration of this Agreement for any reason, The Customer shall pay Orchestra such compensation as was accrued and unpaid up until the date of such termination or expiration. 
12. Survival. Sections ‎9 (Non-Solicitation), ‎13 (Confidentiality), 14 (Intellectual Property), ‎‎15 (Limitation of Liability) and ‎16 (Miscellaneous) shall survive the termination of the Agreement for whatever reason. 
13. Confidentiality. The Parties agrees to keep confidential all Confidential Information disclosed by or otherwise learned from the other Party and prevent any disclosure, publication, dissemination or unauthorized use thereof.
    1. “Confidential Information” means any and all information pertaining to the Parties, whether in tangible (paper, disk or other) or non-tangible (oral or visual) form, whether of a technical, business, financial, commercial or other nature, including without limitation, intellectual property rights, customer lists and information, business plans, know-how, technology, technical knowledge, methods, projections, marketing information, whether or not marked or identified as “confidential”, “proprietary”, or with a comparable legend.
    2. The Parties will not acquire any rights to the Confidential Information of the other Party.  

14. Intellectual Property.
    1. Unless expressly stated to the contrary in this Agreement, the Customer acknowledges that Orchestra will keep the right, title and interest in any and all proprietary and Intellectual Property Rights in the Services and/or any documentation or information provided by Orchestra (“Orchestra IP”). The Customer shall not contest or dispute the validity of or title to any Orchestra IP and shall make its best efforts to assist and to protect the Orchestra’s rights as set forth in the Agreement. The Customer shall not replicate, copy, reverse-engineer, disassemble or use Orchestra’s IP for its own benefit (other than through the Services provided by Orchestra). 
    2. Notwithstanding the aforesaid, the Intellectual Property Rights related to the products of the Setup Services and Prospect Listing Services, shall be jointly held by Orchestra and the Client. Orchestra retains the right to use such products, whenever it deems appropriate, at its own discretion.   
    3. “Intellectual Property Rights” means any and all proprietary or any other rights, throughout the world, whether currently in existence or otherwise, and whether vested or contingent (including without limitation) in patents, patent applications, copyrights and all extensions, reversions, revivals and renewals thereof, moral rights, rights in databases and other protectable lists of information, design rights, registered designs, patents, logos, trademarks, trade names and other designations, trade secrets, know-how, algorithms, formulas, source codes, user experiences and graphical user interfaces, inventions, ideas, look and feel, and all similar rights, including, all modifications, amendments, improvements, developments, discoveries and derivatives thereof and goodwill associated therewith, whether patentable or not, registered or not, now existing or subsisting or hereafter developed and in relation to registrable rights, any applications made in respect of any such rights.

15. Limitation of Liability.
    1. Orchestra does not warrant, guarantee, or make any representations regarding the use, or the results of the use, of the outcome of the Services. Orchestra does not warrant that the Services will satisfy the Customer’s and or any third party’s particular purpose or requirements. No representation can, will or is being made that any decision made based on the Services will, or is likely to, achieve profits or losses. 
    2. Notwithstanding anything to the contrary herein, if Orchestra is found liable for any damages, Orchestra’s maximum and aggregate liability for all damages and losses related to the Agreement, shall be limited to 10% of the aggregate fees actually received by Orchestra from the Customer during the twelve month preceding the date on which such claim is made provided that the foregoing limitation of liability shall not apply to damages arising out of Orchestra’s fraud or willful misconduct.
    3. Notwithstanding anything to the contrary herein, Orchestra shall not be liable for any indirect, special, incidental, consequential or punitive damages of any type including without limitation for any loss or damage to business earnings, loss of profit or goodwill, and/or lost or damaged data, even if it has been advised of the possibility of such damages.

16. Miscellaneous.
    1. The laws of the state of the Customer’s principal place of business shall apply and govern the terms of this Engagement Form and T&Cs. The courts of the state of the Customer’s principal place of business shall have jurisdiction. Notwithstanding the aforesaid, Orchestra shall be entitled to bring any dispute before the courts of the state of the Customer’s state of incorporation.
    2. The Agreement constitutes the complete understanding and agreement between the Parties and supersedes all prior negotiations, understandings and agreements with respect to the subject matter of the Agreement. 
    3. The Agreement may not be altered, amended, modified or supplemented in any respect except by writing signed by an authorized representative of each Party.
    4. Orchestra may from time to time unilaterally amend these Terms and Conditions provided however that it shall deliver the Customer a written notice detailing the requested amendment at least sixty (60) days prior to said amendment becoming effective (“Amendment Notice”). All amended terms shall automatically be effective sixty (60) days after the Customer receives said Amendment Notice with respect to said amendment. If the Customer does not agree to any future revisions of this Agreement, the Customer must send a termination notice to Orchestra (“Amendment Termination Notice”) before the effective date of the amendment(s). 
    5. The invalidity or unenforceability of any particular provision of this Agreement shall not affect the other provisions hereof, and this Agreement shall be construed in such jurisdiction in all respects as if such invalid or unenforceable provision has been omitted.

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