1.1 These Terms and Conditions shall apply to the provision of IT Services by the Provider to the Customer.
1.2 In the event of conflict between these Terms and Conditions and any other terms and conditions (of the Customer or otherwise), the former shall prevail unless expressly otherwise agreed by the Provider in writing.
2. Definitions and Interpretation
2.1 The terms, "us" or "we" or "our" refers to Provider (ProfProjects), the owner of the Websites. A "Visitor" is someone who merely browses our Websites. A "Customer" is an individual or business that has purchased products or services through our Websites. All text, information, graphics, audio, video, and data offered through our Websites, whether free to all or part of any paid features, are collectively known as our "Content". We may refer to Content provided by our Customers as "Customer Content." When we refer to our Websites, our Content is included by reference. In these Terms and Conditions, unless the context otherwise requires, the following expressions have the following meanings:
"Agreement" means the Contract entered into by the Customer and the Provider to which these Terms and Conditions apply;
"Business Day" means, any day (other than Saturday and Sunday) on which ordinary banks are open for their full range business in Cheyenne;
"Commencement Date" means the commencement date for these Terms and Conditions as set out in the Specification of Services Schedule to these Terms and Conditions;
"Customer" the person, who has requested a service on our ProfProjects.com site.
"ProfProjects" means ProfProjects.com Service Provider (owned and operated by ProfProjects, GP )
"Services" means the services to be provided by ProfProjects to the Customer as set out in the Specification of Services Schedule;
"Fees" means any and all sums payable by the Customer to ProfProjects arising out of the performance of ProfProjects’s obligations under these Terms and Conditions;
"Software" means any and all programs, applications, instructions or similar items that may from time to time be installed on the Customers computer systems; and
"Working Hours" means the normal working hours of the ProfProjects which are 09:00 to 20:00 (-5 GMT)
2.2 Unless the context otherwise requires, each reference in these Terms and Conditions to:
2.2.1 "writing", and any cognate expression, includes a reference to any communication effected by electronic or facsimile transmission or similar means;
2.2.2 a statute or a provision of a statute is a reference to that statute or provision as amended or re-enacted at the relevant time;
2.2.3 "these Terms and Conditions" is a reference to the Terms and Conditions and each of the Schedules as amended or supplemented at the relevant time;
2.2.4 a Schedule is a schedule to these Terms and Conditions; and
2.2.5 a Clause or paragraph is a reference to a Clause of these Terms and Conditions (other than the Schedules) or a paragraph of the relevant Schedule.
2.2.6 a "Party" or the "Parties" refer to the parties to these Terms and Conditions.
2.3 The headings used in these Terms and Conditions are for convenience only and shall have no effect upon the interpretation of these Terms and Conditions.
2.4 Words imparting the singular number shall include the plural and vice versa.
2.5 References to any gender shall include the other gender.
3. ProfProjects’s Obligations.
3.1 With effect from the Commencement Date ProfProjects shall, in consideration of the Fees being paid in accordance with the terms of payment, provide the Services expressly identified in the Specification of Services Schedule, or otherwise agreed under these Terms and Conditions.
3.2 ProfProjects will use reasonable care and skill to perform the Services identified in the Specification of Services Schedule or otherwise agreed too under these Terms and Conditions.
3.3 Upon receipt of the Customer’s request for support or rectification of a problem, the ProfProjects shall (subject to its then current commitments) normally begin work on such support or problem not later than 24 hours thereafter and shall carry out all Services as specified in the Specification of Services Schedule during Working Hours until all required work is completed to the reasonable satisfaction of the Customer.
3.4 The ProfProjects will not guarantee the performance of any Software which the ProfProjects has undertaken to re-install under sub-Clause 3.3.
3.5 The ProfProjects shall use all reasonable endeavors to complete its obligations under the Specification of Services Schedule. The Parties agree that time will not be of the essence in the performance of these obligations.
4. Customer’s Obligations
4.1 The Customer shall:
4.1.1 allow ProfProjects access to the Equipment and all relevant Data for investigation purposes and to complete the service;
4.1.2 provide adequate working space and facilities for ProfProjects’s staff; and
4.1.3 co-operate with them in the diagnosis of any problem or malfunction in the Equipment or Data.
4.2 The Customer shall allow ProfProjects the use of any Equipment, computer systems, peripherals or other hardware necessary to enable it to provide the Services; and shall be responsible for procuring, installing and maintaining all communications media not supplied by the ProfProjects.
4.3 The Customer will not allow any changes or modifications to the Software to be made by any party other than those authorized by ProfProjects. If such changes or modifications are carried out without authorization or appropriate notification, ProfProjects reserves the right to review these Terms and Conditions and make adjustments accordingly.
4.4 The Customer will make freely available to ProfProjects all documentation associated with the Equipment, working documents, original Software installation media, current data backups, Equipment and any other relevant hardware for the efficient maintenance of the Equipment and the Software.
4.5 The Customer shall create regular data backups in such a manner as to minimize any potential data loss and to ensure that these are made available to ProfProjects as required.
5.1 The Customer agrees to pay the Fees in accordance with Clause 6 and the Specification of Services Schedule.
5.2 The ProfProjects shall be entitled to recover from the Customer his reasonable incidental expenses for materials used and for third party goods and services supplied in connection with the provision of Services.
5.3 The Customer shall pay ProfProjects for any additional services provided by ProfProjects that are not specified in the Specification of Services Schedule in accordance with ProfProjects’s custom price rate in effect at the time of the performance or any other such rate as may be agreed. Any such charge for additional services shall be invoiced separately from any Fees due under the Specification of Services Schedule.
5.4 All sums payable by either Party pursuant to these Terms and Conditions are exclusive of any value added or other tax or other taxes on profit, for which that Party shall be additionally liable.
6.1 All payments required to be made pursuant to these Terms and Conditions by either Party shall be made within 3 business days of the date of the relevant invoice (ProfProjects sends request for payment after the service result is approved by the customer, and the payment should be done within a maximum of 3 business days), without any set-off, withholding or deduction except such amount (if any) of tax as that party is required to deduct or withhold by law.
6.2 The time of payment shall be of the essence of these terms and conditions. If the Customer fails to make any payment on the due date in respect of any sum due under these Terms and Conditions then ProfProjects shall have the right to charge the Customer interest on any sum outstanding at the rate of 25% above the base rate of Bank of America PLC from the due date for payment until the date on which the payment is received.
6.3 Refund Policy
We will be entitled to unilaterally terminate this contract at any time without good cause, in which case, and to the extent you are in full compliance with this contract, we shall refund to you any payment made in consideration for the Service. In such a case, you waive to any other indemnity or compensation. The aggregate liability amount of us for any reason under this contract including for its breach (except in case of bad faith or wilful misconduct) shall be limited to the amount of the fees paid by you for the Service. Additionally, you waive to any compensation or indemnity for consequential, indirect (including loss of profit) and punitive damages.
7. Variation and Amendments
7.1 If the Customer wishes to vary any details of the Specification of Services Schedule, Customer must notify ProfProjects in writing as soon as reasonably possible. ProfProjects shall use all reasonable endeavors to make any required changes and any additional costs thereby incurred shall be separately invoiced to the Customer.
7.2 If, due to circumstances beyond ProfProjects’s control, it has to make any change in the arrangements relating to the provision of the Services, it shall notify the Customer forthwith. The ProfProjects shall endeavor to keep such changes to a minimum and shall seek to offer the Customer an arrangement as close to the original arrangement as is reasonably possible in the circumstances.
8.1 The ProfProjects may terminate the Agreement forthwith if:
8.1.1 The Customer is in breach of any of its obligations hereunder;
8.1.2 The Customer has entered into liquidation (other than for the purposes of a bona fide amalgamation or reconstruction) whether compulsory or voluntarily or compounds with its creditors generally or has an administrator, administrative receiver or receiver appointed over all or a substantial part of its undertaking or assets;
8.1.3 the Customer has become bankrupt or shall be deemed unable to pay its debts by virtue of Section 123 of the Insolvency Act 1986;
8.1.4 the Customer ceases or threatens to cease to carry on business; or
8.1.5 any circumstances whatsoever beyond the reasonable control of the ProfProjects necessitate and justify the Termination of the Services.
8.2 In the event of Termination under clause 8.1 ProfProjects shall retain any sums already paid by the Customer without prejudice to any other rights, whether at law or otherwise.
9.1 The Customer shall indemnify ProfProjects against all damages, costs, claims and expenses suffered by ProfProjects arising from loss or damage to any equipment/data (including that of third parties) caused by the Customer, or its agents or employees.
9.2 Where the Customer consists of two or more persons, such expression throughout shall mean and include such two or more persons and each or any of them. All obligations on the part of such a Customer shall be joint and several obligations of such persons.
9.3 The ProfProjects shall not be liable to the Customer or be deemed to be in breach of these Terms and Conditions by reason of any delay in performing, or any failure to perform, any of the ProfProjects’s obligations if the delay or failure was due to any cause beyond the ProfProjects’s reasonable control.
9.4 If ProfProjects fails to perform the Services with care and skill, it will carry out remedial action at no extra cost to the Customer.
10. Force Majeure
Neither Party to these Terms and Conditions shall be liable for any failure or delay in performing their obligations where such failure or delay results from any cause that is beyond the reasonable control of that Party. Such causes include, but are not limited to: power failure, Internet Service ProfProjects failure, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event that is beyond the control of the Party in question.
11.1 No waiver by ProfProjects of any breach of these Terms and Conditions by the Customer shall be considered a waiver of any subsequent breach of the same or any other provision. A waiver of any term, provision or condition of these Terms and Conditions shall be effective only if given in writing and signed by the waiving party and then only in the instance and for the purpose for which any waiver is given.
11.2 No failure or delay on the part of any Party in exercising any right, power or privilege under these Terms and Conditions shall operate as a waiver of, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise of or the exercise of any other right, power or privilege.
If any provision of these Terms and Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Terms and Conditions and the remainder of the provision in question shall not be affected thereby.
13.1 All notices under these Terms and Conditions shall be in writing and be deemed duly given if signed by, or on behalf of, a duly authorized officer of the Party giving the notice.
13.2 Notices shall be deemed to have been duly given:
13.2.1 when delivered, if delivered by courier or other messenger (including registered mail) during normal business hours of the recipient; or
13.2.2 when sent, if transmitted by fax or e-mail and a successful transmission report or return receipt is generated; or
13.2.3 on the fifth business day following mailing, if mailed by national ordinary mail, postage prepaid; or
13.2.4 on the tenth business day following mailing, if mailed by airmail, postage prepaid.
in each case addressed to the most recent address, e-mail address, or facsimile number notified to the other Party.
13.3 Service of any document for the purposes of any legal proceedings concerning or arising out of these Terms and Conditions shall be effected by either Party by causing such document to be delivered to the other Party at its registered or principal office, or to such other address as may be notified to one Party by the other Party in writing from time to time.
14. Law and Jurisdiction
14.1 These Terms and Conditions shall be governed by the laws of US.
14.2 Any dispute between the Parties relating to these Terms and Conditions shall fall within the jurisdiction of the courts of US.