Consultancy Terms – Pitched – Terms and Conditions

PITCHED
Incorporating Pitched Applications Limited and Pitched Booking Limited

RECITALS

The Company has expertise in website design and development.
The Customer wishes to appoint the Company to provide the Consultancy Services as set out in the Statement of Work.
This agreement also encompasses the Content Standards (Appendix 1)

The parties hereby agree as follows:

DEFINITIONS

All terms in capitals used in these Consultancy Terms, shall have the meanings defined below:

Term	Meaning
“Agreement”	means these Consultancy Terms together with the Order Form, the Statement of work and all documents referred to therein;
“Business Day”	means a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business;
“Company”	means Pitched Applications Limited of Woodlands Court, Truro Business Park, Truro, Cornwall, TR9 9NH, United Kingdom;
“Confidential Information”	means any information of a confidential or sensitive nature (whether disclosed orally, in writing, or any other media and whether or not such information is expressly stated to be confidential or marked as such) in relation to the Company or a Customer. This includes technology, technical processes, IPRs, business affairs, client lists, finances, trade secrets (including any specialist courseware, software and manuals), secret or confidential operations processes or dealings, details or lists of Customers, details of fees charged by the Company, the subject matter contained in courses run by and/or services provided by the Company or any other information concerning the organisation, business or financial or affairs of the Company or its Customers or business associates, including all notes, memoranda, records and writings made by the Consultant in relation to the Company and/or its Customers, which has or may have come to the Consultants’ knowledge pursuant to or in contemplation of this Agreement or a Statement of Work or in connection with the Consultancy Services to be provided by the Consultant hereunder;
“Consequential Loss”	means pure economic loss, special loss, losses incurred by any third party, losses arising from business interruption, loss of business revenue, goodwill or anticipated savings, losses whether or not occurring in the normal course of business, costs of procuring substitute goods or product(s) or wasted management or staff time;
“Consultant”	means employees, agents, technicians and contractors of the Company;
“Consultancy Services”	means the consultancy services to be provided by the Consultant on behalf of the Company to the Customer under theAgreement from time to time, as set out in each Statement of Work;
“Content”	means any design, software, source code, artwork, copy, drawing, data, specification, annual, content or other information (on whatever media stored including but not limited to electronic and printed media and materials) used or created by the Company (or its Consultants) in providing the Consultancy Services;
“Customer”	means the customer entity named in each Order Form;
“Customer Data”	means any and all materials, content or data provided by the Customer to the Company (or its Consultants) touse in creating or providing the Consultancy Services;
“DPA”	means the Data Protection Agreement of the Company as amended from time to time
“Effective Date”	means the start date of the Agreement as set out in each Order Form;
“Fees”	means the Consultancy Fees, set out in each Order form (or included in any Statement of work) payable by the Customer to the Company for provision of the Consultancy Services;
“Force Majeure”	means anything outside the reasonable control of a party, including but not limited to, acts of God, fire, storm, flood, earthquake, explosion, accident, acts of the public enemy, war, rebellion, insurrection, sabotage, epidemic, pandemic, quarantine restriction, labour dispute, labour shortage, power shortage, including without limitation where Company ceases to be entitled to access the Internet for whatever reason, transportation embargo, failure or delay in transportation, any act or omission (including laws, regulations, disapprovals or failure to approve) of any government or government agency;
“Inappropriate Content”	means material which is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred, menacing, blasphemous or in breach of the content standards detailed in the Content Standards;
“IPRs”	means all copyrights, patents, utility models, trademarks, service marks, registered designs, moral rights, design rights (whether registered or unregistered), technical information, know-how, database rights, semiconductor topography rights, business names and logos, computer data, generic rights, proprietary information rights and all other similar proprietary rights (and all applications and rights to apply for registration or protection of any of the foregoing) as may exist anywhere in the world;
“Order Form”	means each order form signed by the Company and the Customer during the term of the Agreement;
“Privacy Policy”	means the privacy policy of the Company published at: Privacy and Cookie Policy \| Pitched , as amended from time to time;
“Statement of Work”	means each statement of work attached to an Order Form and signed by the parties

Interpretation
1. Clause, schedule and paragraph headings shall not affect the interpretation of these Consultancy Terms.
2. A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors or permitted assigns.
3. A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
4. Unless the context otherwise requires, words in the singular shall include the plural, and in the plural shall include the singular.
5. References to clauses and schedules are to the clauses and schedules of the Agreement; references to paragraphs are to paragraphs of the relevant schedule to the Agreement.
Appointment of the Company
1. The Customer appoints the Company to provide the Consultancy Services to the Customer using its Consultants in accordance with provisions of these Consultancy Terms and subject to the terms of this Agreement
Term
1. This Agreement shall begin on the Effective Date and (subject to the provisions of clause 13 – termination) shall continue unless or until either party serves notice to terminate the Agreement by giving at least thirty (30) days notice in writing.
2. Notwithstanding the aforesaid, if the Customer serves notice to terminate this Agreement pursuant to clause 3a of these Consultancy Terms, such termination shall have no effect on any work which is already being performed pursuant to a Statement of Work or on any work to be performed under a Statement of Work already signed by the Customer, at the time of the service of such notice to terminate.
Provision of the Consultancy Services
The company shall:
1. Provide the Consultancy Services to the Customer on a non-exclusive, “when-needed” basis as set out in each Statement of Work at such times and at such locations as the Company and the Customer agree in writing from time to time.
2. Ensure that any Consultants providing the Consultancy Services on the Company’s behalf under this Agreement comply with each Statement of Work and the DPA to the extent required to enable the Company to perform its obligations in compliance with the terms of this Agreement.
3. Provide the Consultancy Services with reasonable care and skill and to the standard expected of a competent consultant having the skills and abilities necessary to provide the Consultancy Services.
4. Keep detailed records of all acts and things done by the Consultant in relation to the provision of the Consultancy Services and shall make such records available for inspection by the Customer and/or provide copies to the Customer.
5. Set up and manage e-mail accounts on the Customer‘s behalf. Such work will be provided by a third party with whom the Customer must enter into a direct agreement for the provision of such services. The Customer hereby acknowledges and agrees that the Company shall have no liability to the Customer in connection with such agreement or the services provided by such third party.
6. Where delivery of the Consultancy Services is prevented or delayed by any act or omission of the Customer or failure of the Customer to perform any of its obligations:
  1. The Company shall without limiting its other rights or remedies, have the right to suspend performance of the Consultancy Services until the Customer remedies its default, and to rely on the Customer’s default to relieve the Company from the performance of any of its obligations to the extent that the default prevents or delays performance of any of the Company‘s obligations;
  2. The Company shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Company‘s failure or delay to perform any of its obligations; and
  3. The Customer shall reimburse the Company on written demand for any costs or losses sustained or incurred by the Company arising directly or indirectly from the Customer’s default; and
  4. The Company shall be entitled to charge the Customer for all work.
Customer Obligations
The Customer shall:
1. Ensure before entering into this Agreement that the description of the Consultancy Services out in the Statement of Work is complete and accurate.
2. Perform any tasks allocated to it in the Statement of Work.
3. Provide or arrange such reasonable support, assistance, materials and equipment (which shall be at the Customer’s expense) as the Company may reasonably require to enable the Company to properly provide the Consultancy Services and so that the Company is not delayed in performing its obligations under this Agreement.
4. Provide the Company and Consultants, with access to the Customer’s premises, office accommodation and other facilities as reasonably required to provide the Consultancy Services and provide office and administrative facilities at the Customer’s expense in connection with any Statement of Work.
5. Provide the Company promptly with information the Company reasonably requires so that the Consultant is not delayed in performing its obligations under this Agreement. The Customer acknowledges that the Company’s ability to provide the Consultancy Services is dependent upon the Customer’s full and timely co-operation as well as the accuracy and completeness of Customer Data.
6. Ensure that Customer Data does not infringe any applicable laws, regulations or third party rights (including, without limitation, IPRs) and that Customer Data does not include any Inappropriate Content.
7. Comply with the Content Standards when using Content provided by the Company under this Agreement.
8. Communicate any modifications or request for changes to the Statement of Work to the Company in writing.
9. Maintain backups of all Customer Data.
Fees, Invoicing and Payment
1. All Fees shall be calculated as set out in the Order Form and/or each Statement of Work, as applicable.
2. The Company shall invoice the Customer the Fees as set out in each Statement of Work.
3. All Fees shall be in invoiced and payable in pounds Sterling and are exclusive of any applicable VAT which shall be paid in addition.
4. The Customer shall pay the Company all Fees immediately in full and cleared funds by BACS to a bank account nominated in writing by the Company and time for payment shall be of essence.
5. The Company shall in addition to charging the Fees, charge for any expenses reasonably incurred by Consultants in providing the Consultancy Services, including but not limited to travelling expenses, accommodation costs, subsistence and associated expenses and the costs of services provided by third parties and required by the Company to provide the Consultancy Services and for the cost of any materials.
6. The Company shall provide the Customer with monthly time sheets on request, where specified in the Statement of Work, setting out the work carried out by the Consultant.
7. The Customer shall pay all amounts due under the Agreement in full without deduction or withholding except as required by law and shall not be entitled to assert any credit, set off or counterclaim against the Company in order to justify withholding payment or any such amount in whole or in part. The Company may without limiting its other rights or remedies set off any amount owing to the Company by the Customer against any amount payable by the Customer to the Company.
8. The Company may increase any Fees once in any 12 month period of the term of the Agreement. The Company shall give the Customer as least 60 days notice in writing of any proposed increase in the Fees. If such increase is not acceptable to the Customer it must notify the Company in writing within 30 days of the date of the notice that it wishes to terminate the Agreement and such termination notice shall be effective on the expiry of the 60 day notice period, unless the parties agree otherwise in writing.
9. If any sum due under this Agreement is not paid in full by the due date the Company may charge interest on the overdue amount at the statutory rate accruing on a daily basis from the due date for payment until the date or actual payment.
10. The Company reserves the right to recover any costs and reasonable legal fees it incurs in recovering overdue payments.
Amendments to the Statement of Work and Consultancy Services
1. The Customer acknowledges that the Company may amend the Statement of Work and the provision of the Consultancy Services at any time in order to reflect changes in the requirements or needs of the parties during the term of each Statement of Work. This includes without limitation any times relating to delivery of specific functionality or Consultancy Services and the description of the Consultancy Services or functionality itself.
Confidential Information
1. Each party agrees during and after the term of this Agreement to preserve the confidentiality of, and not directly or indirectly reveal, report, publish, disclose or transfer or use for its own or any other purposes Confidential Information of the other party except:
  1. In the circumstances set out in clause 8.b below;
  2. To the extent otherwise expressly permitted by these Consultancy Terms; or
  3. With the prior consent in writing of the party to whose affairs such Confidential Information relates.
2. The circumstances referred to in clause 8.a above are:
  1. Where the Confidential Information is in the public domain; or
  2. Where the Confidential Information enters the public domain otherwise than as a result of a breach of the obligations of the receiving party in clause 8.a
  3. If and to the extent the receiving party makes disclosure of the Confidential Information to any person:
    (a) In compliance with any requirement of law; in response to a requirement of any applicable regulatory authority to which the party is subject where such requirement has the force of law;
    (b) In response to a requirement of any applicable regulatory authority to which the party is subject where such requirement has the force of law; or
    (c) In order to obtain tax or other clearances or consents from the Inland Revenue or other relevant taxing or regulatory authorities; or
    (d) To the employees, directors, agents, consultants and professional advisers of the receiving party.
    
    Provided that any such information disclosable pursuant to clauses 8.b.iii(a) – (c) above shall only be disclosed to the extent required by law.
3. The restrictions contained in this clause 8 shall continue to apply after the termination or expiry of this Agreement without limit in time.
Intellectual Property Rights
1. All existing and future IPRs in the Consultancy Services, (including all Content and all software contained therein) provided to the Customer under any Statement of Work will vest solely and exclusively in the Company. The Customer shall have no title, right or interest whether legal or beneficial in any Content or IPRs including any source code contained therein.
2. All Content is provided to the Customer (“as is”). The Company is not responsible for any breaches of IPRs of a third party caused by the Customer using any Content the Company provides to the Customer as part of the Consultancy Services. It is the sole and exclusive duty of the Customer to check and ensure that use of any Content does not breach the IPRs of a third party.
3. The Company grants the Customer a non-exclusive, non-transferrable, royalty-free, worldwide licence to use and reuse the Content created by the Company or its Consultants, for the Customer’s own internal business purposes.
4. The Customer shall retain sole ownership of all rights, title and interest in and to Customer Data and its pre-existing IPRs and shall have the sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data and its pre-existing IPR. The Customer grants the Company a non-exclusive, licence to use Customer Data, Customer pre-existing IPR and any third party owned item to the extent required for the Company to provide the Consultancy Services.
Data Protection
1. Each party undertakes to comply with its obligations under relevant applicable data protection laws, principles and agreements.
2. To the extent that the personal data of the Customer is processed by the Company providing the Consultancy Services set out in a Statement of Work, the parties acknowledge that the Company is a data processor and the Customer is a data controller andthe parties shall comply with their respective statutory data protection obligations and their contractual obligations set out in the DPA.
3. If a third party alleges infringement of its data protection rights, the Company shall be entitled to take measures necessary to prevent the infringement of a third party’s rights from continuing.
4. Where the Company collects and processes personal data as a data controller, when providing the Consultancy Services to the Customer, such collection and processing shall be in accordance with the Privacy Policy.
Limitation of Liability
1. The parties do not exclude or limit their liability to each other for fraud, death or personal injury caused by their negligent act or omission or wilful misconduct.
2. The Company shall not be liable for any pure economic loss, indirect losses, consequential loss, special loss or damages arising out of or related to the provision of the Consultancy Services, whether based on contract, tort (including negligence or breach of statutory duty), misrepresentation or however arising.
3. The Company shall not be liable for any loss of profits related to provision of the Consultancy Services, whether based on contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise.
4. Subject to clauses 11.a to 11.c inclusive the total liability of the Company to the Customer in aggregate (whether in contract, tort or otherwise) for any and all claims relating to or arising under these Consultancy Terms or based upon any claim for indemnity or contribution shall be limited to the amount paid to the Customer by the Company under the respective Statement of Work (excluding all taxes) during the 12 month period prior to the date on which such claim arose. If the duration of the Agreement has been less than 12 months, the amount payable shall be pro rata.
5. The Company shall be liable for all acts and omissions of any Consultant performing the Consultancy Services on its behalf under this Agreement which result in a breach of the Consultancy Terms, as if such breach or breaches had been caused by the Company itself.
6. The parties acknowledge and agree that in entering into the Agreement, each had recourse to its own skill and judgement and have not relied on any representation made by the other, their employees or agents
Indemnity
1. The Customer shall defend, indemnify and hold harmless the Company, its employees, officers, subcontractors or agents against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising directly or indirectly out of or in connection with:
  1. Use by the Company of any Customer Data or Customer provided item that is used with any Consultancy Services or within any Content;
  2. Breaches of data protection law, marketing laws, advertising laws or regulations or the terms of the DPA by the Customer; or
  3. Breach of any warranty given in a Statement of Work; or
  4. Breach of the Content Standards;
    and the Company shall be entitled to take reasonable measures in order to prevent such breach from continuing.
2. The indemnity given by the Customer in clause 12.a above is subject to:
  1. the Customer being given prompt notice of any such claim;
  2. the Company providing reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer’s expense; and
  3. the Customer being given sole authority to defend or settle the claim.
Termination
1. The Agreement may be terminated or the provision of the Consultancy Services may be suspended by the Company immediately by giving written notice to the Customer if the Customer fails to pay any amount due under the Agreement by the due payment.
2. The Agreement may be terminated immediately by written notice by the non-breaching party:
  1. For a material breach of the Consultancy Terms and the breaching party fails to remedy the breach within fourteen (14)days after receiving a written notice from the non-defaulting party requiring it to remedy the breach; or
  2. If a Force Majeure event last more than 30 days.
3. The Agreement may be terminated immediately by the Company giving written notice if:
  1. The Customer is guilty of conduct which may bring the Company into disrepute or is otherwise prejudicial to the best interests of the Company; or
  2. There is any change in the direct or indirect beneficial ownership or control of the Customer (other than changes as notified before the Effective Date); or
  3. The Customer: (i) disposes of the whole or part of its business, operations or business other than in the ordinary course of business (other than changes as notified to the Company before the Effective Date); ceases to carry onbusiness; (iii) ceases to be able to pay its debts as they become due; (iv) passes a resolution, or a court makes an orderthat the party be wound up otherwise than for the purpose of a bona fide reconstruction or amalgamation; (v) has a receiver, manager or administrator on behalf of a creditor appointed in respect of the business or any part thereof of that party; (vi) is unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986; or (vii) any similar event occurs under the law of any other jurisdiction.
Consequences of Termination
1. Termination of the Agreement will not affect the accrued rights or remedies of either party and all clauses which by their nature should continue in force after the effective date of termination shall remain unaffected.
2. The obligations of confidentiality under clause 9 (Confidential Information) shall continue to apply to the parties (in addition to any assignee) after termination, completion or assignment of this Agreement and each party shall return or destroy all Confidential Information of the other party within 7 days of termination.
3. Any licences granted to the Customer by the Company shall cease on the effective date of termination.
4. The Customer shall immediately pay the Company all outstanding unpaid invoices and the Company shall invoice the Customer in respect of any service supplied but for which no invoice has been submitted. Such invoices shall be payable immediately upon receipt by the Customer.
Force Majeure
1. Except with respect to the Customer’s obligation to pay the Fees, if a party is wholly or partially unable to comply with its obligations under these Consultancy Terms due to Force Majeure, then that party’s obligation to perform in accordance with the provisions of the Consultancy Terms will be suspended for the duration of the Force Majeure. As soon as practicable after an event of Force Majeure arises, the party affected by Force Majeure must notify the other party of the extent to which the notifying party is unable to perform its obligations under the Consultancy Terms. Neither party shall be liable to the other as a result of any delay or failure to perform an obligation resulting from a Force Majeure event.
Miscellaneous
1. The Customer is not permitted to assign any of the rights, benefits or obligations arising under these Consultancy Terms unless the Company gives its prior written approval.
2. Each party acknowledges that it has not entered into these Consultancy Terms in reliance on any statement or representation,whether or not made by the other party, except in so far as the representation has been incorporated into these Consultancy Terms.
3. These Consultancy Terms and any documents referred to in them, constitutes the whole agreement and understanding between the parties and supersedes all prior agreements, representations, negotiations and discussions between the parties relating to the provision and use of the consultancy Services. Any samples, drawings, descriptive matter or advertising issued by the Company, and any descriptions or illustrations contained in the Company‘s catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Consultancy Services described in them and shall not form part of these Consultancy Terms.
4. Should one or more provisions of these Consultancy Terms be deemed invalid, illegal or unenforceable, the remaining clauses shall be unaffected. The parties shall then agree to substitute the invalid clause by a clause that is legally and economically as far as possible comparable to the invalid clause.
5. In the event of any inconsistency between the provisions of an Order Form and the Consultancy Terms, the terms of the Order Form shall prevail.
6. The terms of the Agreement may only be modified, or any rights under it waived, in a written document executed by both parties.
7. The Company’s relationship with the Customer during the term of the Agreement shall be that of an independent contractor. The Company shall not have, and shall not represent that it has, any power, right or authority to bind the Customer, or to assume or create any obligation or responsibility, express or implied, on behalf of the Customer.
8. The Company shall not be entitled to any pension, bonus, sick pay, holiday or other fringe benefits from the Customer and the Company shall bear exclusive responsibility for the discharge of any income tax, national insurance contributions, VAT and other taxation liability arising out of any fees paid under the Agreement and shall indemnify the Customer against all payments which it may be required to make by the Inland Revenue or other similar authority.
9. A waiver of any right under these Consultancy Terms is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under these consultancy Terms or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
10. Any notice required to be given under these Consultancy Terms shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in the Order Form, or such other address as may have been notified by that party for such purposes or sent by email where specifically permitted by these Consultancy Terms. Unless expressly stated otherwise in these Consultancy Terms, E-mail is specifically excluded. Any notice or other communication shall be deemed to have been duly received if delivered personally, when left at the address referred to above or, if sent by pre-paid first-class post or recorded delivery, at 9.00am on the second Business Day after posting, or if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed. .
11. Nothing contained in these Consultancy Terms is intended to be enforceable by any third party under the Contracts (Rights of Third Parties) Act 1999, or any similar legislation in any applicable jurisdiction.
12. Each party shall pay its own legal, accountancy and other costs and expenses incurred by it in the negotiation and preparation of the Agreement
Governing Law and Jurisdiction
1. These Consultancy Terms and any dispute arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of England and Wales and the parties shall submit to the exclusive jurisdiction of the English courts.

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