An IT Company performing service (i) with specific deliverables or (ii) longer-term technical support for Customer. This is drafted in Neutral Form.
Company will use commercially reasonable efforts to provide Customer the Services described in the Statement of Work attached as Schedule 1 hereto, and Customer shall pay Company the Fees in accordance with Schedule 2.
The Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimises errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. However, Company does not warrant that the Services will be uninterrupted or error-free; nor does it make any warranty as to the results that may be obtained from use of the Services.
If the Company is in breach of its obligations in respect of the supply of services under this Agreement, the remedy of Customer shall be to require the Company to carry out as promptly as practicable such repeat or remedial services as shall be appropriate to ensure that the relevant services are carried out (save only as to the time of their performance) as originally planned.
The Company shall be liable for and shall indemnify the Customer against any expense, liability, loss, claim or proceedings howsoever arising in respect of infringement by the Service of any patent or any copyright or misappropriation of any trade secret, provided the Company is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defence and settlement; Company will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Service (i) not supplied by Company, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by Company, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Service is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Company to be infringing, Company may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Service.
Notwithstanding anything to the contrary, except for bodily injury of a person, the Company and its suppliers (including but not limited to all equipment and technology suppliers), officers, affiliates, representatives, contractors and employees shall not be responsible or liable with respect to any subject matter of this agreement or terms and conditions related thereto under any contract, negligence, strict liability or other theory: (a) for error or interruption of use or for loss or inaccuracy or corruption of data or cost of procurement of substitute goods, services or technology or loss of business; (b) for any indirect, exemplary, incidental, special or consequential damages; (c) for any matter beyond company’s reasonable control; or (d) for any amounts that, together with amounts associated with all other claims, exceed the fees paid by customer to company for the services under this agreement in the 12 months prior to the act that gave rise to the liability, in each case, whether or not company has been advised of the possibility of such damages.
This Consulting Agreement should be carefully read by the Company and the Customer.
The parties should sign and return a copy, and once signed, both parties should get a copy. To avoid future disputes, both parties may wish to have their signature witnessed.
Terms and Conditions and rights and liabilities should all be clearly stated in the Consulting Agreement.
If either party wishes to amend the agreement in the future, both parties should agree to do so, and the original agreement and amendments should be recorded in writing and signed by both parties.
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