Main Services Agreement

This Main Services Agreement (“Agreement”) is entered into between the Client and heimr ltda. (“heimr”). By accepting this Agreement through clicking “Accept,” signing an IBM Purchase Details Form, or accessing or using heimr’s services, the Client agrees to the terms contained herein. The effective date is the date of acceptance by the Client. Capitalized terms not defined have the meaning set forth in the Interpretation section below. heimr will provide some or all of the selected Services, as detailed in the IBM Purchase Details Form, including Professional Services for IBM Cloud, such as cloud migration, cost optimization (FinOps), data, AI and automation, security, convergence, and governance.

1. INTERPRETATION

1.1 The following definitions and rules of interpretation apply in this Agreement:

  • Ad Hoc Services: Services requested by the Client that are not Available Services.

  • Applicable Laws: All laws, statutes, and regulations applicable from time to time.

  • Authorized Users: Those employees, agents, and independent contractors of the Client authorized to use the Services and/or Documentation, as named in the appropriate Services Schedule.

  • Available Services: The Services described in Schedule 1.

  • Business Day: A day other than a Saturday, Sunday, or public holiday in Brazil, when banks in São Paulo are open for business.

  • Business Hours: The period from 9:00 AM to 6:00 PM on any Business Day.

  • heimr Equipment: Any equipment, tools, systems, cabling, or facilities provided by heimr to the Client and used directly or indirectly in the provision of the Services, including items specified in a Services Schedule, but excluding items under separate agreements where title passes to the Client.

  • heimr IPR: All Intellectual Property Rights subsisting in the heimr Equipment, Software, Deliverables, and Documentation (excluding any Client Materials incorporated therein).

  • heimr Personnel: Personnel that heimr or a Subcontractor employs or engages to perform the Services.

  • Change Control Notice: Has the meaning given in clause 9.1.

  • Charges: The amounts payable for the Services, as set out in each Services Schedule.

  • Client Data: The data inputted by the Client, an Authorized User, or heimr on behalf of the Client for the use of the Services or to facilitate the Client’s use.

  • Client Dependencies: Specific inputs and activities required from the Client, as set out in the relevant Services Schedule.

  • Client Equipment: Any equipment, including tools, systems, cabling, or facilities, provided by the Client, its agents, subcontractors, or consultants, used directly or indirectly in the provision of the Services, including items specified in a Services Schedule.

  • Contract Year: A 12-month period from the date of this Agreement or any anniversary thereof.

  • Control: As defined in applicable Brazilian tax legislation, and the expression change of Control shall be construed accordingly.

  • Controller, processor, data subject, personal data, personal data breach, processing, and appropriate technical measures: Have the meaning given in the Data Protection Legislation.

  • Client Materials: All documents, information, items, and materials in any form, owned by the Client or third parties, provided by the Client to heimr in connection with the Services, including items provided pursuant to clause 7.1.

  • Data Protection Legislation: The General Data Protection Law (LGPD – Law No. 13,709/2018) and any other Brazilian or European legislation relating to personal data, and all other legislation and regulatory requirements in force from time to time that apply to a party in relation to the use of personal data (including, without limitation, the privacy of electronic communications).

  • Delivery: The transfer of physical possession of heimr Equipment to the Client at its premises.

  • Deliverables: All documents, products, and materials developed by heimr, its agents, subcontractors, and personnel as part of or in relation to the Services in any form, including computer programs, data, reports, and specifications (including drafts).

  • Documentation: Any documentation provided by heimr relating to the Services, including user manuals, operational guides, and technical specifications.

  • Enhanced Services: With respect to a specific Services Schedule, the right to use the Service additionally within the applicable Service Metrics.

  • Insolvency Event: (a) a party suspends or threatens to suspend payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts; (b) a party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with any of its creditors; (c) a petition is filed, a notice is given, a resolution is passed, or an order is made for or in connection with the winding up of the party; (d) an application is made to court, or an order is made, for the appointment of an administrator; (e) the holder of a qualifying floating charge over the assets of the party becomes entitled to appoint or appoints an administrative receiver; (f) a person becomes entitled to appoint a receiver over all or any of the assets of the party; (g) a creditor or encumbrancer of the party attaches or takes possession of, or a distress, execution, sequestration, or other similar process is levied or enforced on or sued against, all or any part of the assets of the party and such attachment or process is not discharged within 14 days; (h) any event occurs, or proceeding is taken, with respect to the party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in (a) to (g); or (i) a party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.

  • Force Majeure Event: An event beyond the reasonable control of the affected party that is not related to its fault or negligence, including acts of God, epidemics, government intervention, war, hostilities, terrorist activities, local or national emergencies, floods, natural disasters, fires, explosions, strikes, lock-outs, and labor disputes (except where such strikes, lock-outs, or labor disputes involve the staff or employees of the affected party).

  • Good Industry Practice: Using practices and exercising the degree of skill and care that would reasonably be expected from a suitably qualified and experienced professional organization engaged in the provision of services equal or similar to the Services.

  • Go-Live Date: The date on which the Services go live for use by the Client.

  • Intellectual Property Rights: Patents, rights to inventions, copyright and related rights, moral rights, trademarks, trade names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use and protect the confidentiality of confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered, including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

  • Implementation: The process of setting up the Services for the Client, as set out in the applicable Services Schedule.

  • Milestone: A date identified as such in the Project Plan or Services Schedule.

2. COMMENCEMENT AND DURATION

The Agreement commences on the Effective Date and continues until either party gives three months’ written notice to terminate, provided such notice expires on the date the last subsisting Services Schedule expires or is terminated (Term). Each Services Schedule commences on its Services Schedule Start Date and continues for the relevant Services Schedule Term, subject to early termination, unless otherwise set out in the Services Schedule.

3. FRAMEWORK AGREEMENT

This is a framework agreement setting out the terms for heimr to provide Available Services, Software, and/or heimr Equipment. Services Schedules are completed and signed by both parties to detail specific services, with no obligation to enter into them. The process includes Client notification via IBM Tile, a workshop for requirements, heimr’s proposal, and signing. In case of conflict, the provisions of the Services Schedule prevail.

4. PROVISION OF SERVICES

heimr shall use reasonable endeavors to: (a) provide Services and Deliverables as per the Services Schedule; (b) meet Go-Live Dates and Milestones (estimates, time not of the essence); (c) meet Service Levels; (d) appoint a manager with authority to bind heimr. heimr Personnel shall observe health and safety requirements at the Client’s premises. The Client may request Enhanced Services, subject to heimr’s approval, with pro-rated Charges. heimr is not responsible for third-party sites accessed via the Services.

5. PROVISION OF EQUIPMENT AT CLIENT’S PREMISES

heimr uses reasonable endeavors for timely Delivery. The Client provides materials, access, and conditions for installation at its expense. heimr Equipment remains heimr’s property, with risk passing to the Client on Delivery. The Client maintains insurance. The Client ensures a suitable environment, does not alter or move without consent, and allows heimr access. At the end of the Term, the Client returns or allows collection.

6. SOFTWARE

Software may be provided with a non-exclusive, non-transferable license for Authorized Users. No copying, modification, or reverse engineering. heimr performs Software Services with reasonable skill, with remedies limited to correction.

7. CLIENT RESPONSIBILITIES

The Client shall: (a) meet Client Dependencies in a timely manner; (b) act per the Project Plan; (c) use Credits within the Term; (d) dedicate time and resources; (e) ensure third-party assistance; (f) maintain network compliance; (g) maintain security; (h) prevent unauthorized access; (i) cooperate; (j) appoint a manager; (k) provide access; (l) provide accurate materials; (m) inform health and safety requirements.

8. WARRANTIES

heimr warrants that it will provide Services with Good Industry Practice using qualified personnel. Software available 24/7, except for maintenance. Standard support during Business Hours. No warranty of uninterrupted or error-free service. The Client warrants authority. All implied warranties excluded.

9. CHANGE CONTROL

Either party may propose changes, effective only with a signed Change Control Notice detailing impacts. Proposals handled via dispute procedure if unresolved.

10. INTELLECTUAL PROPERTY RIGHTS

heimr retains heimr IPR. The Client retains IPR in Client Materials. A license is granted to the Client to use Deliverables. A reciprocal license is granted for Client Materials. heimr warrants non-infringement and indemnifies against claims. The Client warrants the same for Client Materials. Procedure for claims includes notification and control of defense.

11. COMPLIANCE WITH LAWS

Both parties comply with Applicable Laws. Changes due to laws handled via change control.

12. DATA AND DATA PROTECTION

The Client owns non-personal Client Data and is responsible for its legality. heimr performs backups, with remedies limited to restoration. Both comply with LGPD. When a processor, heimr processes only per instructions, ensures measures, confidentiality, transfers with safeguards, assists with requests, notifies breaches, and returns/deletes data. heimr authorizes sub-processors and remains responsible.

13. CONFIDENTIALITY

Each party undertakes not to disclose the other’s confidential information during the Term and for two years after, except to employees, agents, or subcontractors who need to know, with similar obligations. Exceptions for public information, legally required disclosure, or to professional advisors. Return or destruction upon termination.

14. LIMITATION OF LIABILITY

Neither party is liable for indirect, consequential losses, loss of profits, data, or goodwill. Total liability limited to amounts paid in the prior 12 months. Exceptions for fraud, death, IPR, or confidentiality breaches.

15. TERMINATION

Either party may terminate for material breach not remedied within 30 days, Insolvency Event, or with 90 days’ notice for convenience. Termination does not affect accrued rights.

16. CONSEQUENCES OF TERMINATION

Due Charges paid. Return of property, transition assistance at cost. Survival of clauses like confidentiality and limitation of liability.

17. FORCE MAJEURE EVENT

Neither party is liable for failure due to a Force Majeure Event, if notified and mitigated. If prolonged for 30 days, termination possible.

18. GENERAL PROVISIONS

No assignment without consent. No waiver except in writing. Severability. No partnership. No third-party rights. Variation only in writing. Governing law: Brazil. Jurisdiction: Courts of São Paulo.

SCHEDULE 1: AVAILABLE SERVICES

The Services include: Cloud infrastructure (migration, disaster recovery), FinOps (cost optimization), Data, AI, and Automation (insights, automated processes), Security (ethical hacking, firewall), Convergence (cloud integration), Governance (monitoring, SRE as a Service), tailored for IBM Cloud clients.

SCHEDULE 2: PROFESSIONAL SERVICES FOR IBM CLOUD

Description: Consulting, implementation, and support for IBM Cloud solutions.
Service Levels: 99% availability, response times.
Charges: Based on hours or fixed, as per IBM Form.