Terms
These Conditions may only be varied with the written agreement of both parties.
THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF CLAUSE 8 (LIMITATION OF LIABILITY).
1. DEFINITIONS
In this Contract:
“Change Request” is an amendment to a Contract in a form agreed in writing by the parties in accordance with clause 6.
“Client” means the Company or legal entity named in the Statement of Work;
“Conditions” the terms and conditions set out in this document as amended from time to time in accordance with clause 14.
“Consultant” means Performa IT Limited;
“Contract” means the Contract between the Client and the Consultant consisting of the Statement of Work, these terms and conditions and any other documents specified in the Statement of Work;
“Project” means the services to be provided as specified in the Statement of Work;
“Specification” the description or specification of the Project as set out in the Statement of Work.
“Statement of Work” means the document setting out the Client’s requirements for the Contract.
These Conditions apply to the Contract to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
2. THE PROJECT
a. The Consultant shall complete the Project with reasonable skill and care in accordance with the Specifications.
b. The Consultant shall provide the Client with reports of the work completed on the Project every two weeks.
c. The Consultant shall use all reasonable endeavours to meet any performance dates specified in the Statement of Work, but any such dates shall be estimates only and time shall not be of the essence for performance of the Project.
3. CLIENT’S OBLIGATIONS
The Client shall
a. ensure that the terms of the Statement of Work and any information it provides in the Specification are complete and accurate;
b. provide the Consultant, its employees, agents, consultants and subcontractors, with access to the Client’s premises, office accommodation and other facilities as reasonably required by the Consultant in accordance with clause 4.2;
c. provide the Consultant with administrator access to Salesforce and Sandbox; and
d. co-operate with the Consultant in all matters relating to the Project including appointing a lead project manager and main point of contact for the Project for the Consultant who is sufficiently senior to make decisions in relation to the Project and to give the Consultant reasonable notice of any chance to such lead project manager.
4. CONSULTANTS PERSONNEL
a. The Consultant shall appoint for the purposes of the Project a project lead.
b. The Consultant shall use personnel who are suitably skilled and experienced to perform tasks assigned to them.
c. The Project shall be performed remotely unless the Client requests support is provided in person at their premises. If support is required at the Client’s premises, the Client shall give all authorities required, at the Client’s cost, to give the Consultant’s personnel access to their premises. Attendance at any Client premises will always be agreed in advance between the Consultant and the Client.
d. If the Client gives the Consultant notice that any person is not to be admitted to its premises or is not to become involved in or is to be removed from involvement in the Project the Consultant shall take all reasonable steps to comply with such notice.
5. FEES AND EXPENSES
a. The Client shall pay to the Consultant, upon receipt of an invoice from the Consultant, fees at the rate and at the times specified in the Statement of Work.
Performa IT Limited is a company registered in England and Wales under number 7579500. Registered Office: Unit 402, Stonehouse Business Park, Sperry Way, Stonehouse, Gloucestershire, GL10 3UT
b. The Consultant shall be entitled to charge the Client for any expenses reasonably and properly incurred by them in the performance of Project. All expenses incurred will be charged in accordance with the Consultant’s expenses policy from time to time in force. Unless otherwise stated in the Statement of Work, payment must be made within 30 days of receipt of an invoice from the Consultant.
6. CHANGE CONTROL PROCESS
a. Either party may propose changes to the scope or execution of the Project or the Specifications, but no proposed changes shall come into effect until a Change Request has been agreed in writing by both parties in accordance with the Change Control Process set out below.
b. A Change Request should set out the proposed changes and the effect those changes will have on: i. the Project;
ii. the Specifications;
iii. the fees;
iv. the timetable for the performance of the Project; and
v. any of the other terms of the Contract.
c. If either party wishes to make a change to the Contract then it shall provide to the other party a draft Change Request.
d. If either party does not wish to proceed there shall be no change to the Contract.
e. If the parties mutually agree in writing to proceed with the change as set out in the Change Request then the relevant provisions of the Contract shall be amended accordingly.
f. Notwithstanding the provisions of this clause, the Consultant may amend the Specification if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and the Consultant shall notify the Client in any such event.
7. INTELLECTUAL PROPERTY RIGHTS
a. For the purposes of this clause, Intellectual Property Rights shall mean: patents, copyright and related rights, trade marks and service marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing offor unfair competition, rights in designs, rights in computer software, 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 and including all applications and rights to
b. 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.
c. All Intellectual Property Rights in or arising out of or in connection with the Project (other than Intellectual Property Rights in any materials provided by the Client) shall be owned by the Consultant.
d. The Consultant grants to the Client, or shall procure the direct grant to the Client of, a fully paid-up, worldwide, non-exclusive, royalty-free licence during the term of the Contract for the purpose of the Project.
e. The Client shall not sub-license, assign or otherwise transfer the rights granted in Clause 6.2.
f. The Client grants the Consultant a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any materials provided by the Client to the Consultant for the term of the Contract for the purpose of providing the Project to the Client.
8. DATA PROTECTION
a. Both parties undertake to comply with the Data Protection Act 1998 and shall procure that its employees, agents and subcontractors shall observe the provisions of the Data Protection Act 1998 or any amendments and re-enactments thereof.
b. The Client shall promptly notify the Consultant where it considers that the Consultant may be required to process personal data in performing the Project. Where it is envisaged that the Consultant will be a processor of personal data then the parties shall incorporate the appropriate controller/processor provisions into the Contract in the form required by the data Protection Act 1998.
9. LIMITATION: THE CUSTOMER’S ATTENTION IS PARTICUALRLY DRAWN TO THIS CLAUSE
a. The extent of the parties’ liability under or in connection with this Contract (regardless of whether such liability arises in tort, contract or in any other way and whether or not caused by negligence or misrepresentation) shall be as set out in this clause 7.
b. Subject to clauses 7.1 and 7.5, the Consultant’s total liability in respect of any Statement of Work shall not exceed an amount equal to the fees paid by the Client within the period of 12 months prior to the event giving rise to the liability under that Statement of Work. Statements of Work shall be deemed to be separate engagements subject to the terms of this Contract.
c. Neither party shall be liable for consequential, indirect or special losses nor for any loss of profit, loss or corruption of data, loss of contract, loss of opportunity, loss of savings, discount or rebate (whether actual or anticipated) or any loss of goodwill.
d. Except as expressly stated in this Contract, and subject to clause 7.5, all warranties and conditions whether express or implied by statute, common law or otherwise are excluded to the extent permitted by law.
e. Notwithstanding any other provision of this Agreement, the liability of the parties shall not be limited in any way in respect of the following: i. death or personal injury caused by negligence;
ii. fraud or fraudulent misrepresentation; and
iii. any other losses which cannot be excluded or limited by applicable law.
10. CONFIDENTIALITY
The Client and Consultant shall keep secret and not disclose and shall procure that his employees keep secret and do not disclose any information, computer software and documents obtained by him by reason of this Contract. The provisions of this clause 8 shall apply during the continuance of this Contract and after its termination howsoever arising.
11. TERMINATION
a. Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if: i. the other party fails to pay an amount due under this agreement on the due date for payment and remains in default not less than 10 days after being notified in writing to make such payment;
ii. the other party commits a material breach of any term of this agreement and (if such breach is remediable) fails to remedy that breach within a period of 10 days after being notified in writing to do so;
iii. the other party takes or has taken against it (other than in relation to a solvent restructuring) any step or action towards its entering bankruptcy, administration, provisional liquidation or any composition or arrangement with its creditors, applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, being wound up (whether voluntarily or by order of the court), being struck offthe register of companies, having a receiver appointed to any of its assets, or its entering a procedure in any jurisdiction with a similar effect to a procedure listed in this clause;
iv. the other party suspends or ceases, or threatens to suspend or cease, carrying on business.
12. NOTICES
Any notice given under or pursuant to the Contract may be sent by hand or by post or by registered post or by the recorded delivery service or email resulting in the receipt of written communication in permanent form and if so sent or transmitted to the address of the party shown on the Statement of Work shall be deemed effectively given on the day when in the ordinary course of the means of transmission it would first be received by the addressee in normal business hours.
13. STATUS OF CONTRACT
Nothing in this Contract is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
14. VARIATION
No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
15. RIGHTS OF THIRD PARTIES
The parties do not intend the terms of the Contract to be enforceable by third parties under the provisions of the Contracts (Rights of Third Parties) Act 1999.
16. ASSIGNMENT AND OTHER DEALINGS
a. The Consultant may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
b. The Client shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of the Consultant.
17. FORCE MAJEURE
Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.
18. GOVERNING LAW
These Contract shall be governed by and construed in accordance with English law and both the Consultant and the Client hereby irrevocably submit to the exclusive jurisdiction of the English courts.
Performa