TERMS AND CONDITIONS
Consulting Services Terms And Conditions
- Services and Statement of Work. Prestige IT Solutions Limited (PSIT) will provide the services (“Services”) as described in each Statement of Work (“SOW”). A SOW may only be amended or modified by a written change control document. It needs to be signed by authorized representatives of PSIT and the Customer. In the event of any conflict between this Agreement and an applicable SOW, the SOW shall govern. But will only as to that specific SOW.
- Customer’s Duties and Responsibilities. The customer shall make available in a timely manner at no charge to PSIT. Customers need to avail all technical data, computer facilities, programs, files, documentation, test data, and sample output. It should also avail any other information and resources reasonably required by PSIT for the performance of the Services. The customer will be responsible for and assumes the risk of any problems resulting from specific things. These things include the content, accuracy, completeness, and consistency of all such data, materials, and information supplied by the customer. The customer shall provide, at no charge to PSIT, office space. Further provide services and access to equipment (such as copiers, fax machines, and modems). This is because PSIT may reasonably be required to provide the Services.
- Relationship of Parties. Each party will be and act as an independent contractor and not as an agent or partner of, or joint venturer with the other party, and neither party will by virtue of this Agreement have any right, power, or authority to act or create any obligation, express or implied, on behalf of the other party.
- Confidentiality. PSIT and Customer each agree to retain in confidence the Confidential Information of the other party. Each party agrees to (a) preserve and protect the confidentiality of the other party’s Confidential Information. (b) refrain from using the other party’s Confidential Information except as contemplated herein. (c) not disclose such Confidential Information to any third party except as there is a reasonable requirement in connection with the exercise of its rights and obligations under this Agreement (and only subject to binding use and disclosure restrictions at least as protective as those set forth herein). Notwithstanding the foregoing, either party may disclose Confidential Information of the other party which is: (i) already publicly known. (ii) discovered or created by the receiving party without reference to or use of the Confidential Information of the disclosing party, as shown in records of the receiving party. (iii) otherwise known to the receiving party through no wrongful conduct of the receiving party. (iv) require disclosure by law or court order. The confidentiality obligations of this Section 4 shall survive the termination of this Agreement. It will be for a period of five (5) years. “Confidential Information” means all non-public information. It includes trade secrets, know-how, inventions, techniques, processes, methodologies, programs, schematics, software, source code, data, and work products. It also includes any materials which are either under designation as proprietary and/or confidential. Or by the nature of the circumstances surrounding disclosure, should reasonably be understood to be confidential. If either party breaches any of its confidentiality or other obligations hereunder, the other party shall be able to seek such equitable relief. It will include but not be limited to injunctive relief, in addition to any monetary damages.
- Intellectual Property Rights.
- PSIT retains all rights, titles, and interests in and to the materials, deliverables, Services, and work product under each SOW. It will include patents, trademarks, copyrights (including the right to any derivative works), and all other intellectual property rights. The materials, deliverables, Services, and work product shall not constitute “works made for hire”. To the extent that any materials, deliverables, Services, or work product is considered to be “works with intent of hire,” Customer agrees to assign all rights, titles, and interests in the foregoing to PSIT. Notwithstanding anything to the contrary in this Agreement, PSIT shall obtain no right, title, or interest in any of Customer’s Confidential Information.
- PSIT grants to Customer a nonexclusive, non-transferable, royalty-free license to use the deliverables solely for Customer’s internal use, pursuant to the applicable license or subscription agreement relating to the PSIT consulting services product at issue. Support for customizations or deliverables is not provided under the PSIT support agreement (or any SOW unless specified therein) unless any issues also apply to the generally available product.
- Customer Security Regulations/Work Policy. The customer shall provide to PSIT. PSIT shall ensure that its personnel or subcontractors make commercially reasonable efforts to comply with the customer’s security regulations. Unless otherwise agreed to by both parties, PSIT’s personnel (including its subcontractors) will observe the working hours, working rules, and holiday schedules of Customer while working on Customer’s premises. Provided that PSIT’s personnel are provided reasonable prior notice of all such hours, rules, and schedules.
- Warranty and Disclaimer. PSIT WARRANTS THAT IT WILL USE ITS COMMERCIALLY REASONABLE EFFORTS TO ENSURE THAT ALL SERVICES RENDERED PURSUANT TO THIS AGREEMENT WILL BE PERFORMED IN A WORKMANLIKE MANNER CONSISTENT WITH INDUSTRY PRACTICES. EXCEPT FOR THE FOREGOING, SERVICES, DELIVERABLES, AND WORK PRODUCTS ARE PROVIDED “AS IS,” WITHOUT ANY WARRANTY OF ANY KIND. PSIT AND ITS SUPPLIERS AND/OR SUBCONTRACTORS DISCLAIM ANY AND ALL WARRANTIES. EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE. THE PSIT AND ITS SUPPLIERS AND/OR SUBCONTRACTORS DO NOT WARRANT THAT SERVICES, DELIVERABLES, OR WORK PRODUCTS WILL MEET CUSTOMER’S REQUIREMENTS. AND THAT THE PERFORMANCE OR USE THEREOF WILL BE UNINTERRUPTED OR ERROR-FREE.
- Limitation of Liability. NOTWITHSTANDING ANYTHING ELSE HEREIN. ALL LIABILITY OF PSIT AND/OR SUPPLIERS AND/OR SUBCONTRACTORS UNDER THIS AGREEMENT OR ANY SOW HEREUNDER SHALL BE LIMITED TO THE AMOUNT PAID BY THE CUSTOMER TO PSIT UNDER THE SOW WHICH IS THE SOURCE OF THE LIABILITY. ALL LIABILITY UNDER THIS AGREEMENT IS CUMULATIVE AND NOT PER INCIDENT.
- Consequential Damages Waiver. IN NO EVENT SHALL PSIT OR ITS SUPPLIERS OR SUBCONTRACTORS BE LIABLE UNDER THIS AGREEMENT FOR (A) ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS, LOST DATA, OR ANY OTHER INDIRECT DAMAGES EVEN IF SUCH PARTY HAS BEEN INFORMED OF THE POSSIBILITY THEREOF, OR (B) ANY COSTS OR EXPENSES FOR THE PROCUREMENT OF SUBSTITUTE EQUIPMENT OR SERVICES
- Term and Termination.
- The term of this Agreement shall commence on the Effective Date stated in the Order Form. It shall continue in full force unless terminated earlier under the provisions of this Section 10.
- This Agreement or any SOW may get termination for convenience by either party upon thirty (30) days prior to the notice. Any such termination shall not relieve either party of their respective obligations. It shall be under any SOW in effect at the date of termination of a SOW or the Agreement. The obligations shall remain in effect for such SO, except as otherwise mutually agreed in writing by the parties.
- Failure by either party to comply with any material term or condition under this Agreement or a SOW issued hereunder shall entitle the other party to give the party in default written notice. Notice will required it to cure such default. If the party in default doesn’t cure such default within thirty (30) days of receipt of the notice, the notifying party shall be entitled. In addition to any other right, it may terminate this Agreement (and all SOWs issued hereunder) and/or the individual SOW by giving notice effective immediately.
- This Agreement or individual SOW may be terminated immediately by either party if either party ceases to carry on business as a going concern. It becomes the object of the institution of voluntary or involuntary proceedings in bankruptcy or liquidation. A receiver is appointed with respect to a substantial part of such party’s assets.
- Upon termination of this Agreement and/or any SOWs, Customer shall pay PSIT for all work performed under the affected SOW(s) up to the effective date of termination. In addition, Customer agrees, within ten (10) days after termination, to deliver to PSIT at PSIT’s discretion either: (i) the original and all copies of the Deliverables and related materials that the Customer receives in connection with the work under termination for which PSIT lacks its payment in the course of performance. (ii) a certificate certifying that Customer has destroyed the original and all copies of such Deliverables and related materials.
- The rights and remedies of PSIT provided in this Section 10 shall not be exclusive. And are in addition to all other rights and remedies provided by law. It will be in equity or otherwise under this Agreement or SOWs hereunder.
- Sections 3, 4, 5, 8, 9, 11, 14, and 15 of this Agreement, any accrued rights to payment shall survive termination. It will be regardless of the reason for termination.
- Assignment and Subcontracting. Customer shall not assign or transfer any obligations or benefits under this Agreement without the prior written consent of PSIT. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties and their respective successors and permitted assigns. The Services may be provided by PSIT or individuals or organizations employed by or under contract with PSIT. Services will be provided at the discretion of PSIT. PSIT shall be responsible for the performance of such individuals or organizations.
- Notice. All notices required or permitted hereunder will be in writing and deemed received when (a) delivered personally. (b) when sent by confirmed facsimile (followed by the actual document in air mail/air courier). (c) three (3) days after having been sent by registered or certified mail, return receipt requested, postage prepaid (or six (6) days for international mail). or (d) one (1) day after deposit with a commercial express courier specifying next-day delivery or, for international courier packages, two (2) days after deposit with a commercial express courier specifying 2-day delivery, with written verification of receipt. All communications, we will send to the addresses set forth on the Order Form or to such other address as a party may designate by giving written notice to the other party pursuant to this paragraph.
- Force Majeure. Except for payment obligations, each party shall get an excuse for any delay or failure. It will be in performance hereunder caused by reason of occurrence or contingency beyond its reasonable control.
- Solicitation of Employees. Customer acknowledges and agrees that the employees and consultants of PSIT performing the Services are a valuable asset to PSIT and are difficult to replace. Accordingly, Customer agrees that, for a period of one (1) year after the completion of the Services, it will not offer employment as an employee, independent contractor, or consultant to any PSIT employee or consultant (including employees or consultants of PSIT’s subcontractors) who perform any of the Services.
- Miscellaneous.
- Customer Affiliates. PSIT agrees that Customer’s Affiliates shall be permitted to purchase Services under this Agreement, provided, however, that any such purchase(s) shall be evidenced by a separate SOW and Customer and its Affiliate(s) shall be jointly and severally liable for the compliance by the Affiliate(s) with the terms and conditions of this Agreement. For purposes of this Agreement, the term “Affiliates” means any entity with affiliation that Controls, is under control, or is under common Control with a party to this Agreement, and the term “Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and operating policies of an entity through the ownership of voting securities (at least fifty-one percent (51%) of its voting or equity securities), contract, voting trust, or otherwise.
- Export Control. Customer acknowledges and agrees and certifies that it will not export or re-export either the deliverables or any directly related materials to or into any country in violation of such controls or any other laws, rules or regulations of any country or jurisdiction.
- Affirmative Action/Equal Opportunity Employer. PSIT is an Affirmative Action/equal employment opportunity employer that will employ qualified individuals with disabilities and qualified protected veterans.
- Additional Terms and Conditions for PSIT Dedicated Onsite and Live Online Training. The following additional terms and conditions apply to PSIT Dedicated Classroom and Live Online Training only:
- Cancellation: The cancellation or rescheduling of the Training engagements must occur within ten (10) business days of the training event. Otherwise, the full amount of training fees and travel expenses will be due. If Customer cancels or reschedules before the deadline stated in the preceding sentence, for the avoidance of doubt, Customer will be responsible for any cancellation or change fees PSIT has incurred or may incur in connection with any booked travel.
- Warranty and Disclaimer: PSIT warrants that it will perform training services in a reasonable manner using generally accepted industry standards and practices. THE EXPRESS WARRANTY SET FORTH ABOVE IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE.
- Training Materials: All materials that we provide to Customers for training purposes (and all intellectual property rights that relate thereto) are under the exclusive ownership of PSIT (“Training Materials”). PSIT grants Customer a limited, non-exclusive license. It is to use and make a reasonable number of internal copies of any Training Materials strictly for the purpose of facilitating the understanding, utilization, and operation of its licensed PSIT Software product(s).
- Maximum Participants: A maximum of 10 participants get the delivery of classes. PSIT may charge an additional charge per participant over the maximum number of participants for the training.
- Changes: Changes to the final agenda and scope of a training engagement requested by the Customer may incur additional costs. It includes costs for additional participants in the training session(s). You must discuss such changes with the PSIT Training Manager. Both parties must agree to any changes in writing.