General Terms of Service
- Applicability
(a) Unless otherwise final and agreed in writing between the parties, these Terms of Service (the “Terms”) are the only terms and conditions governing the provision of services by Prime IT Systems Limited (the “Service Provider”) to the purchaser of such services (the “Customer”).
(b) The attached order confirmation (the “Order Confirmation”) and these terms and conditions (together, the “Agreement”) are the only agreements that apply between the parties. They replace any previous or contemporaneous agreements, negotiations, understandings, warranties, representations, or conversations, whether written or spoken. There is a difference between these Terms and the Order Confirmation. These Terms are more important, unless the Order Confirmation clearly says that the terms of the Order Confirmation are more important.
(c) These Terms are more important than the Customer’s own terms and conditions, even if the Customer has sent a quote, order, or request for those terms. The provision of Services to the Customer does not imply the Company’s acceptance of the Customer’s Terms of Use and does not constitute a modification or addition to these Terms of Use. Subject to these Terms, Service Provider will provide the services described in the Order Confirmation (“Services”) to Customer.
- Service Appointments
The Service Provider will use its best efforts to meet all Service dates specified in the Order Confirmation. The exact timing of these dates is unknown.
- Performance Dates
Service Provider shall use reasonable efforts to meet any performance dates specified in the Order Confirmation, and any such dates shall be estimates only.
4.What Customer Must Do
Customer agrees to
(a) cooperate with Service Provider in all matters relating to the Service and to provide Service Provider with access to Service Provider’s home, office, and such other locations as Service Provider may reasonably request for the purpose of providing the Services;
(b) respond promptly to all requests from Service Provider and provide all instructions, information, approvals, authorizations, or decisions reasonably necessary to provide the Services;
(c) provide Service Provider with any materials or information that Service Provider may reasonably request to provide the Services in a timely manner, and ensure that Customer’s materials or information are complete and accurate in all material respects; and
(d) obtain and maintain all licenses and consents required prior to the start date of the Services and comply with all laws applicable to the Services.
- Customers’ acts or omissions
If the Service Provider’s obligations under this Agreement are prevented or delayed by any act or omission of the Customer or its agents, subcontractors, consultants, or employees, this shall not constitute a breach of the Service Provider’s obligations under this Agreement, and no other liability shall arise. In any situation, the Customer will be solely responsible for all fees, charges, or damages incurred or suffered as a result of such prevention or delay, whether directly or indirectly.
- Change Orders
(a) If either party desires to change the scope or performance of the Services, it shall notify the other party in writing with details of the desired changes. The Service Provider shall provide the Customer, within a reasonable time of such request, with a written quotation setting forth:
(i) the estimated time required to implement the Changes;
(ii) any necessary changes to the Fees for Services and other charges resulting from the Changes;
(iii) the possible effect of the Changes on the Services; and
(iv) any other effect the Changes may have on the performance of this Agreement.
(b) Upon receipt of the written quotation, the parties shall immediately negotiate and agree to the terms of such changes in writing (a “Change Order”). Neither party will be bound by change orders unless mutually agreed to in writing pursuant to Article 25.
(c) Notwithstanding Clauses 6(a) and 6(b), the Service Provider may change the Services from time to time without Customer’s consent, provided that such changes affect the nature, scope, price or content of the Services. Changes in the Services will not materially affect the dates of the Services specified in the Order Confirmation.
(d) Service Provider may invoice on a time and materials basis for the time spent evaluating and documenting Customer’s change requests, as specified in the Order Confirmation.
- Fees and Expenses
Terms of Payment; Interest on Late Payments.
(a) In consideration of the Service Provider’s provision of the Services and the rights granted to Customer under this Agreement, Customer shall pay the fees set forth in the Order Confirmation.
(b)To make things even better, the customer agrees to pay the service provider back for all reasonable travel and other costs spent in providing the services.
(c) The customer must pay all bills within 30 days of the date the service provider sent the bill. All payments by Customers under this Agreement must be made in U.S. dollars by electronic funds transfer.
(d) If Service Provider does not receive any money within 30 days after the due date, it may:
(i) charge interest at the rate of 1.5% per annum.a. or the minimum interest rate permitted by law, whichever is less, on the unpaid amount; or
(ii) suspend provision of Services until full payment is received.
- Taxes
If any federal, state or local government imposes any sales, use, income or similar taxes, levies or fees on any amounts payable by Customer under this Agreement, Customer shall be obligated to pay them.
- Intellectual Property
All intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether or not patentable), trademarks, service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, company names and domain names, all related goodwill therein, derivative works, and all other rights in and to all documents, deliverables and other materials delivered to Customer under this Agreement or created by or on behalf of Service Provider (collectively, the “Intellectual Property Rights”) and the delivery process of the Services, including all items identified as such in the Order Confirmation (collectively, the “Deliverables”), except for any Customer Confidential Information or Customer Materials, are the exclusive property of Service Provider. Service Provider hereby grants to Customer, at no additional cost, a non-exclusive, worldwide, non-transferable, non-sublicensable, fully paid, royalty-free and perpetual license to use all Intellectual Property Rights in the Deliverables, but only to the extent necessary to enable Customer to properly use the Deliverables and Services.
- Confidential Information
(a) all non-public, confidential or proprietary information of the Service Providers, including trade secrets, technical, operational, strategic, customer, pricing and marketing information (collectively, “Confidential Information”), whether oral, written or electronic, or transmitted in any form or medium, whether or not marked, labeled or otherwise identified;
(i) is publicly available;
(ii) is known to the Customer at the time of disclosure; or
(iii) is lawfully received by the Customer on a non-confidential basis from a third party.
(b) The Customer undertakes to use the Confidential Information only for the purposes of utilizing the Services and Benefits.
(c) A service provider will be entitled to injunctive relief for any violation of this section.
- Representations and Warranties
(a) Service Provider represents and warrants to Customer that it will use personnel with the necessary skills, experience and qualifications, perform the Services in a professional and workmanlike manner in accordance with generally accepted industry standards for similar services, and provide sufficient resources to fulfill its obligations to comply with this Agreement.
(b) Service Provider shall not be liable for any breach of the warranties set forth in Section 11(a) unless Customer notifies Service Provider in writing within ten (10) days after Customer discovers or should have discovered that the Services are defective and has adequately described the defective Services.
(c) Subject to Section 11(b), Service Provider shall, in its sole discretion, either:
(i) repair or re-perform such Services (or the defective portion); or
(ii) provide a credit or refund for such Services at the pro-rata Contract Price.
(d) THE REMEDIES SET FORTH IN SECTION 11(c) SHALL BE CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES AND SERVICE PROVIDER’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 11(a).
- DISCLAIMER OF WARRANTIES. EXCEPT FOR THE WARRANTIES SET FORTH IN SECTION 11(a) ABOVE, SERVICE PROVIDER MAKES NO WARRANTIES OF ANY KIND WITH RESPECT TO THE SERVICES, INCLUDING (A) ANY WARRANTY OF MERCHANTABILITY; OR (B) ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (C) ANY WARRANTY OF TITLE; OR (D) ANY WARRANTY AGAINST INFRINGEMENT OF ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHTS, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
- Limitation of Liability
(a) In no event shall Service Provider be liable to Customer or any third party for any loss of use, revenue, profits, loss of data or loss of value, or any consequential, incidental, indirect, exemplary, special, punitive, special or special damages, whether arising from breach of contract, tort (including negligence) or otherwise, whether or not such damages were foreseeable and whether or not Service Provider was advised of the possibility of such damages, and regardless of the contract or other remedy, shall fail to meet its purpose.
(b) Service Provider’s total liability arising out of or relating to this Agreement, whether arising from breach of contract, tort (including negligence) or otherwise, shall not exceed the amounts paid or payable by Service Provider in the six (6) month period prior to the event giving rise to the claim.
- Termination
If Customer:
(a) fails to pay any amount due under this Agreement and such failure continues for ten days after Customer receives written notice of the default;
(b) gives written notice that it is delinquent in any payment,
(c) otherwise fails to perform or comply with all or any part of the terms of this Agreement, or (d) becomes insolvent, declares bankruptcy, or commences or has commenced any proceeding against itself relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors, Service Provider may terminate this Agreement immediately upon written notice.
- Waiver
This Agreement can only be waived in writing and signed by the Service Provider. Your failure or delay in exercising any right, remedy, authority, or benefit of this Agreement does not waive such rights. You may not exercise any right, remedy, authority, or privilege under this Agreement unilaterally or on a limited basis, preventing others from doing so in the future.
- Force Majeure
Scenarios in which failure occurs due to events beyond the control of the Service Provider, such as: natural disasters, floods, fires, earthquakes, explosions, governmental actions, war, invasion or hostilities (whether or not war is declared), which prevent the performance of any part of this Agreement, will be liable to the Customer and will apply but will not be considered a default or breach of contract.
- Assignment
Customers may not assign its rights or delegate its obligations under this Agreement without Service Provider’s prior written consent. Any purported assignment or delegation in violation of this Section will be void. No assignment or delegation will relieve the Customer of its obligations under this Agreement.
- Relationship of the Parties.
The parties are independent contractors. This Agreement does not create any agency, partnership, joint venture, employment or fiduciary relationship between the parties, and neither party will have any authority to enter into any agreement on behalf of or to bind the other party.
- No third-party beneficiaries
This Agreement solely benefits the parties and their successors and permitted assigns, and nothing in this Agreement, express or implied, grants any other person or entity any legal or equitable right, benefit, or remedy. These Terms should not.
- Governing Law
All issues arising from or related to this Agreement will be governed by and construed according to Texas law, without regard to choice of law or conflict of law rules.
Application of non-Texas laws.
- Submission to Authority
Each party irrevocably submits to the exclusive jurisdiction of the federal courts of the United States or the courts of the State of Texas, in each case being litigated in the City and County of Dallas, with respect to any suit, action or proceeding arising out of or relating to the subject matter of this Agreement.
- Notices
All notices, demands, consents, claims, demands, waivers and other communications under this Agreement (each a “Notice”) must be in writing and addressed to the party’s address specified in the Order Confirmation or such other address as the receiving party may designate.. All Notices must be delivered personally and by nationally recognized overnight carrier (all charges prepaid), facsimile (with confirmation of transmission), or by electronic mail or certified mail (in each case return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a notice is effective only if (a) it is received by the other party and (b) the person sending the notice complies with the procedures in this section.
- Severability
If any part of this Agreement is held to be invalid, illegal, or unenforceable in any jurisdiction, this will not affect any other term or provision of this Agreement. That part of the agreement will still be invalid or unenforceable in other jurisdictions.
- Survival
Any provisions of these Terms which by their nature should survive their duration shall survive the termination or expiration of this Agreement, including, without limitation, the following provisions: Confidentiality and Survival.
25.Amendment and Modification
This Agreement may not be amended or modified except by a writing that expressly states that it is an amendment to this Agreement and is signed by an authorized representative of each party.
