- Professional Services Purpose and Scope
(a) Client desires to contract with LIVEN to receive professional services (“Services”). For good and valuable consideration, LIVEN is prepared and capable of providing such Services, which include, but are not limited to,
i. Marketing Related Services;
ii. Branding Services;
iii. Website Development Services;
iv. Other products and professional services within the capacity and capability of LIVEN.
(b) The description of Services purchased, Statement of Work (“SOW”) and price basis will be set out under individual Services of Work Sheets (“Statement of Work Sheet(s)”) to be agreed by the Parties at the time LIVEN Services are required by Client. The format of such Statement of Work Sheet shall be as set forth in Exhibit A to the Agreement.(c) When the Services are performed on a “time and materials” basis, LIVEN will use reasonable efforts to accomplish the work required within the Total Estimated Price set out in each Services Order Sheet.
(i) Client shall have no obligation to make any payment to LIVEN in excess of the Total Estimated Price, and LIVEN shall have no obligation to continue to perform work beyond the Estimated Personnel Requirements (Man-days), even if the Services have not been completed. The Parties may, by mutual written agreement, increase the Estimated Personnel Requirements (Man-days) and the Total Estimated Price.
(ii) LIVEN may take the following actions, in its discretion, so long as LIVEN does not cause the cost to the Client to exceed the Total Estimated Price:
use fewer hours of one labour category and more hours of another labour category or categories, or any combination or number of personnel it deems necessary to satisfy its commitments, and vary the expenditures between the Estimated Personnel Requirements (Man-days) amounts and the other direct cost (“ODC”) expenditures (e.g., use more labour and less travel).
(d) When the Services are performed on a fixed price (“Fixed Price”) basis; LIVEN will complete the Statement of Work set out in the Statement of Work Sheet at the Fixed Price set out in the Statement of Work Sheet. Change of scope or schedule may result in a change to the Fixed Price.
- Place of Performance
Unless otherwise provided in this Agreement, the Services shall be performed primarily at LIVEN’s place of business or such other place to be determined at LIVEN’s sole discretion. Schedule for Performance of Services. Unless otherwise provided in this Agreement, the Schedule for Performance of Services shall be determined at LIVEN’s sole discretion.
- Fees, Costs and Payment Terms
(a) For Time and Materials – The amount to be paid to LIVEN for labour shall be computed by multiplying the applicable billing rate (Daily Rate) set forth in the Statement of Work Sheet by the amount of direct labour (in Man-days) actually performed. Fractional parts of a Man-day shall be payable on a prorated basis. There shall be a minimum of six (6) hours per Man-day.
(b) Client shall reimburse LIVEN for all materials purchased exclusively for use in performing the Services, as well as for all reasonable travel costs incurred, including without limitation, airfare, car rental, lodging, meals, other direct costs, and miscellaneous out-of-pocket expenses (if any) incurred in connection with performing the Services. These costs shall be subject to an administrative overhead charge of ten percent (10%) unless otherwise agreed in writing and set out in specific Statement of Work Sheet(s).
(c) LIVEN shall provide an invoice to Client on a monthly basis for Services performed and expenses incurred by LIVEN pursuant to this Agreement. Invoiced amounts are immediately due and payable by either electronic funds transfer (BACS) or by mail to the following location:
- LIVEN Creative Limited
Attn: Client Accounts
4 Tannery House, Tannery Lane, Send, Surrey, GU23 7EF
- (d) If Client fails to pay the total of such invoiced fees and costs within thirty (30) days of such invoice, interest compounded at the rate of one and six tenths percent (1.6%) per month shall be charged on all amounts unpaid and outstanding. If Client fails to make any payment to LIVEN as and when required hereunder, LIVEN shall have the right, in addition to its other rights and remedies, to cease further performance of the Services. All fees paid for Time and Materials and/or Fixed Price services shall be non-refundable.
- Resources to be provided by Client
Client shall provide, maintain and make available to LIVEN, at Client’s expense and in a timely manner, the following resources, and such other additional resources, as LIVEN may from time to time reasonably request in connection with LIVEN’s performance of the Services:(a) Qualified Client personnel or representatives who will be designated by Client to consult with LIVEN on a regular basis in connection with the Services and provide LIVEN with documentation or other information necessary to perform the Services.(b) Access to Client’s premises and appropriate workspace for LIVEN personnel at Client’s premises as necessary for performance of those portions of the Services to be performed at Client’s premises.
- Intellectual Property
(a) Client and LIVEN shall each retain ownership of, and all right, title and interest in and to, their respective, pre-existing intellectual property (“IP”), and no license therein, whether express or implied, is granted by this Agreement or as a result of the Services performed hereunder. To the extent the parties wish to grant to the other rights or interests in pre-existing IP, separate license agreements on mutually acceptable terms will be executed.
(b) Client shall take title to and full ownership of all deliverable Client items listed in each Statement of Work Sheet upon LIVEN’s receipt of full payment for all Services described in each Statement of Work Sheet, and LIVEN hereby assigns any copyright it may have in such deliverable items to Client. All other IP rights related to the deliverable items that LIVEN may have or otherwise later obtain shall be the property of LIVEN. Nothing in this Agreement grants Client any IP rights to LIVEN’s Mediaframe, Web Content Management System, or CD-LIVE marketing systems, website development source files, project development files, graphic design and layout files and templates or other proprietary research and development.
(c) Nothing in this Agreement shall prevent LIVEN from utilising any general know-how, techniques, ideas, concepts, algorithms, inventions, or other knowledge acquired or developed during the performance of this Agreement, on behalf of itself and its future clients, and LIVEN may perform the same or similar services for others, provided that, in all cases, any Client confidential, proprietary or trade secret information is treated in accordance with the non-disclosure provisions of the Agreement or separate Non-Disclosure Agreement between the parties, as applicable.
Client shall be solely responsible for the payment of any and all sales, use, value added, excise, import, privilege or other similar taxes or payments in lieu thereof, including interest and penalties thereon, imposed by any authority, government or governmental agency arising out of or in connection with the performance of the Services by LIVEN (other than those levied on LIVEN’s income), and Client shall make such payments, and timely file any return or information required by treaty, law, rule or regulation. Upon request, Client shall provide LIVEN with documentation evidencing such payments. If LIVEN is required to pay any such taxes, duties or fees, Client shall reimburse LIVEN immediately upon receipt of LIVEN’s invoice thereof.
(a) Personnel will at all times be considered employees or agents of the party providing such personnel and will not for any purpose be considered employees or agents of the other party. Each party shall assume full responsibility for the actions or inactions of the personnel it provides, and shall be solely responsible for the supervision, direction, control, salaries, workers’ compensation coverage, disability and other insurance, benefits, and all other obligations required by law relating to its personnel.
(b) Nonsolicitation. During the term of this Agreement and for a period of twelve (12) months thereafter, neither party shall, either directly or indirectly, solicit for employment by itself (or any of its affiliates) who, at the time of the solicitation is an employee of such party, and has been involved in the performance of the Party’s obligations under this Agreement or any Statement of Work Sheet(s), unless the hiring party obtains the written consent of the other party.
Either party may terminate this Agreement for any reason upon ninety (90) days written notice to the other party. In the event that Client serves a termination notice on LIVEN, LIVEN shall as soon as reasonably practical thereafter, stop work except as may be otherwise specifically authorised under such termination notice. Termination under this Section will not affect payment obligations incurred under this Agreement for Services performed prior to the effective date of termination, and for any costs incurred, including without limitation commitments to purchase products or services from third parties which were entered into by LIVEN in the course of performance hereunder prior to the effective date of termination. Such reimbursable costs may include, but are not limited to, cancellation fees, minimum consulting fees, and non-refundable charges or fees for third party products or services.
(a) LIVEN warrants that the Services provided under this Agreement shall be performed with that degree of skill and judgment normally exercised by recognised professional firms performing services of the same or substantially similar nature. The exclusive remedy for any breach of the foregoing warranty shall be that LIVEN, at its own expense, and in response to written notice of a warranty claim by Client within ninety (90) days after performance of the Services at issue, shall, at its own option, either (1) re -perform the Services to conform to this standard; or (2) shall refund to Client amounts paid for non-conforming Services.
(b) LIVEN SPECIFICALLY DISCLAIMS ANY OTHER EXPRESS OR IMPLIED STANDARDS, GUARANTEES, OR WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY WARRANTIES THAT MAY BE ALLEGED TO ARISE AS A RESULT OF CUSTOM OR USAGE. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT LIVEN DISCLAIMS ANY WARRANTY, RESPONSIBILITY, OR LIABILITY FOR “YEAR 2000” COMPLIANCE, COMPUTER VIRUSES, OR FUNCTIONALITY OF THE CLIENT’S HARDWARE, SOFTWARE, FIRMWARE, OR COMPUTER SYSTEMS.
(c) Client represents and warrants to LIVEN that it has the right to use, disclose and disseminate the information, specifications and data that it has provided or will provide to LIVEN in order for LIVEN to perform the Services and to create the deliverables, if any, identified in each SOW. Client further represents and warrants that possession and use of that information, specifications and data by LIVEN under the terms and conditions of this Agreement will not constitute an infringement upon any patent, copyright, trade secret, or other intellectual property right of any third party.
- Limitation of Liability
(a) LIVEN’s total liability to Client for any and all liabilities, claims or damages arising out of or relating to this Agreement, howsoever caused and regardless of the legal theory asserted, including breach of contract or warranty, tort, strict liability, statutory liability or otherwise, shall not, in the aggregate, exceed the amount actually paid to LIVEN under the specific Statement of Work Sheet(s) from which the claim originated.
(b) In no event shall either LIVEN or Client be liable to the other for any special, indirect, incidental or consequential damages (including, but not limited to, lost profits, lost business opportunities, loss of use or equipment down time, and loss of or corruption to data) arising out of or relating to this Agreement, regardless of the legal theory under which such damages are sought, and even if the parties have been advised of the possibility of such damages
(c) Any claim by Client against LIVEN relating to this Agreement, other than in warranty, must be made in writing and presented to LIVEN within one (1) year after the earlier of: (1) the date on which the Client accepts the deliverable(s) at issue; or (2) the date on which LIVEN completes performance of the Services specified in the specific Statement of Work Sheet from which the claim originated.
No waiver, amendment, or modification of any provision of this Agreement shall
be effective unless in writing and signed by the party against whom such waiver, amendment, or modification is sought to be enforced. No failure or delay by either party in exercising any right, power or remedy under this Agreement, except as specifically provided herein, shall be deemed as a waiver of any such right, power, or remedy.
Neither party may sell, assign, transfer, or otherwise convey any of its rights or delegate any of its duties under this Agreement without the prior written consent of the other party, which consent may not be unreasonably withheld. Notwithstanding the foregoing, LIVEN may without violation of this paragraph engage the services of independent contractors to assist in the performance of its duties hereunder.
- Governing Law
This Agreement is made under and will be governed by and construed in accordance with the laws of England without giving effect to principles of conflicts of laws.
Any dispute relating to the terms, interpretation or performance of this Agreement (other than claims for preliminary injunctive relief or other pre-judgment remedies) will be resolved at the request of either party through binding arbitration.
If any covenant, condition, term, or provision contained in this Agreement is held or finally determined to be invalid, illegal, or unenforceable in any respect, in whole or in part, such covenant, condition, term, or provision shall be severed from this Agreement, and the remaining covenants, conditions, terms and provisions contained herein shall continue in full force and effect, and shall in no way be affected, prejudiced or disturbed thereby.
- Force Majeure
Neither party shall be liable for any failure of or delay in performance of its obligations under this Agreement (except the making of payments) to the extent such failure or delay is due to circumstances beyond its reasonable control, including, without limitation, acts of God, acts of a public enemy, fires, floods, earthquakes, wars, civil disturbances, sabotage, accidents, insurrections, blockades, embargoes, storms, explosions, labour disputes (whether or not the employees’ demands are reasonable and within the party’s power to satisfy), acts of any governmental body, failure or delay of third parties or governmental bodies from whom a party is obtaining or must obtain approvals, authorisations, licenses, franchises or permits, or inability to obtain labour, materials, equipment, or transportation (collectively referred to herein as “Force Majeure”). Each party shall use its reasonable efforts to minimise the duration and consequences of any failure of or delay in performance resulting from a Force Majeure event.
The captions and headings used in this Agreement are solely for the convenience of the parties, and the text of the Agreement shall govern in the event of any conflict or ambiguity. Each party has read and agreed to the specific language of this Agreement; therefore no conflict, ambiguity, or doubtful interpretation shall be construed against the drafter.18. Relationship of Parties. LIVEN is an independent contractor in all respects with regard to this Agreement. Nothing contained in this Agreement shall: (1) authorise or empower either party to act as a partner or agent of the other party in any manner; (2) authorise, or empower or deem one party to assume or create any obligation or responsibility whatsoever, express or implied, on behalf of or in the name of any other party; or (3) authorise, empower or deem a party to bind any other party in any manner or make any representation, warranty, covenant, agreement, or commitment on behalf of any other party.19. Third Party Beneficiaries. This Agreement does not create, and shall not be construed as creating, any rights or interests enforceable by any person not a party to this Agreement.20. Counterparts. This Agreement shall not be binding in whole or in part upon the Parties unless and until duly executed by or on behalf of both Parties hereto, in which event this Agreement shall be effective as of the Effective Date. This Agreement may be executed in counterparts, each of which shall be deemed to be an original instrument enforceable in accordance with its terms.21. Entire Agreement. This Agreement, including all attachments hereto, constitutes the complete and exclusive agreement between the Parties with respect to the subject matter hereof and supersedes all proposals, oral, or written, all previous negotiations, and all other communications between the Parties with respect to the subject matter hereof. The terms of this Agreement shall prevail notwithstanding any different or conflicting terms that may appear in any purchase order or other Customer/Client document. All products and services delivered by LIVEN to Client are subject to the terms of this Agreement, unless specifically addressed in a separate agreement.