Professional Services General Terms and Conditions

This document sets out the General Terms and Conditions on which Portainer.io Limited (Portainer, we, us or our) will provide Professional Services to Customer (Customer, you or your) for the duration of the project as detailed in the Statement of Work that was accepted by you at the commencement of the project.  

Definitions

1. “Acceptance Period” means a period of ten (10) business days following, (i) with respect to a fixed fee engagement, delivery of the Project Milestone Completion Form, or (ii) with respect to time and materials engagements, the submission of timesheets to the Customer.
2. “Professional Services” means the services provided by Portainer.io to Customer as described in the Statement of Work to which these General Terms & Conditions are attached (“SOW”).
3. “Customer Materials” means any materials or Technology provided to Portainer.io by Customer in connection with the Professional Services.
4. “Deliverables” means any reports, analyses, scripts, templates, code or other work products, tangible or intangible, to be delivered by Portainer.io to Customer as set forth in the SOW.
5. “Derivative Work” means a derivative work as defined under applicable intellectual property laws.
6. “Intellectual Property Rights” means all worldwide intellectual property rights including copyrights, trademarks, service marks, trade secrets, know-how, inventions, patents, patent applications, moral rights and all other proprietary rights, whether registered or unregistered.
7. “Parties” means Portainer.io and Customer collectively, and a “Party” means Portainer.io or Customer individually.
8. “Taxes” means any sales, use and other taxes (other than taxes on Portainer.io’s income), export and import fees, customs duties and similar charges applicable to the Professional Services as described in the SOW that are imposed by any government or other authority.
9. “Technology” means algorithms, approaches, source and object codes, concepts, data, designs, developments, documentation, discoveries, expressions, inventions, know-how, methodologies, multimedia files, processes, programs, skills, software, techniques, technology, templates, text, tools, and web pages.
10. “Portainer.io Retained Materials” means (i) materials (other than products) developed or obtained by or for Portainer.io independently of the Professional Services, and (ii) subsets or modules of the Deliverables that by themselves provide generic technical information not unique to Customer’s business.
11. Work completed within a month will be charged at the end of the month. All invoices will be accompanied by effort/achievement reports. 

Professional Services

1. Professional Services. Portainer.io will provide the Professional Services and the Deliverables as specified in this SOW. This SOW specifies and describes any relevant business parameters, including, but not limited to, the Professional Services, the Deliverables, the Customer Materials, primary contact information for Portainer.io and Customer, project description, delivery schedule, staff roles, pricing, and a payment schedule. In the event of a conflict between the terms of this General Terms and Conditions and the terms of an SOW, the General Terms and Conditions will govern unless otherwise explicitly superseded in the SOW. The General Terms and Conditions and the SOW are collectively referred as “SOW” hereinafter.
2. Acceptance
   
   1. For fixed fee engagements, upon completion of each milestone, Portainer.io will deliver to Customer a Project Milestone Completion Form. For time and materials engagements, Portainer.io will deliver timesheets to Customer. Customer will return the Project Milestone Completion Form or timesheets, as applicable, to Portainer.io within the Acceptance Period, indicating Customer’s acceptance of the SOW’s Deliverables or Professional Services.
   2. If Customer reasonably believes that Portainer.io did not perform the Professional Services or the Deliverables in substantial conformance with the SOW, Customer will notify Portainer.io, in writing, within the Acceptance Period. Customer’s notice must specifically identify and explain each alleged non-conformance with the terms of the SOW. Portainer.io will use reasonable efforts to correct Customer’s issues and then again present the Project Milestone Completion Form or timesheets for Customer’s acceptance as required by this Section.
   3. If Portainer.io does not receive Customer’s acceptance or rejection within the Acceptance Period, the Professional Services and the Deliverables will be deemed accepted by Customer, and Customer will have waived any right of rejection.
3. Project Change Request
   1. Either Party may request a modification to the Deliverables or to any material provision of the SOW by submitting a Project Change Request (“PCR”). Upon receipt of a PCR, Portainer.io will estimate it’s financial and schedule impacts, if any. The Parties will review these estimates to determine whether the PCR would be mutually acceptable. Portainer.io may not unreasonably refuse to accept a PCR initiated by Customer, if Customer agrees to bear the pricing and schedule impacts.
   2. If the Parties agree on the PCR, Portainer.io will attach the final PCR to the SOW. If the Parties are unable to agree within five (5) business days after the PCR is submitted, then the submitting Party may either withdraw the PCR or terminate the SOW. If the SOW is terminated, the only payments due are for the Deliverables delivered, Professional Services performed, and expenses incurred by Portainer.io prior to the termination date.
   3. In a Time & Materials engagement, a Project Change Request will have the effect of re-stating the project objectives. As there is no fixed fee or agreed outcome, a PCR in a T&M project has no financial impact. 
4. Customer Materials Delays. Customer acknowledges that Portainer’s performance of the Professional Services and delivery of the Deliverables is contingent on Customer’s timely delivery of the Customer Materials required to perform the Professional Services. Customer agrees that any reasonable scheduling or financial impacts caused by Customer’s failure to deliver Customer Materials within the specified time will be treated as a PCR or impact a T&M project accordingly).
5. Personnel. Portainer will determine the personnel assigned to perform the Professional Services. Customer may request, in writing, with specific reasons stated, the replacement of Portainer personnel or Portainer contractors that Customer reasonably believes are not adequately performing the Professional Services.

Intellectual Property

1. Grant of Copyright in the Deliverables. Subject to Customer’s payment of the amounts due under the SOW and to Customer’s compliance with the SOW, Customer will own all copyrights to the portion of the Deliverables consisting solely of written reports, analyses, and other working papers (other than Portainer.io Retained Materials), prepared and delivered by Portainer.io to Customer under the SOW, provided that Customer will exercise its rights for Customer’s internal business operations only and will not resell or distribute the Deliverables to any third party.
2. Grant of License Rights in the Deliverables. For Portainer.io Retained Materials and the portion of the Deliverables that consists of scripts, code, templates, and all other materials developed or otherwise provided by Portainer.io in connection with the Professional Services, Portainer.io grants Customer a non-exclusive, non-transferable, irrevocable (except in case of breach of the SOW), perpetual license, without the right to sublicense, to use and copy (without the right to sublicense), for Customer’s internal business operations only (the “Deliverables License”). The Deliverables License does not apply to (i) Customer Materials, and (ii) any other products or items licensed, or otherwise provided, under a separate agreement.
3. Customer Materials. Any Customer Materials used by Portainer.io in connection with the SOW remain Customer property. Pursuant to Customer’s Intellectual Property Rights in Customer Materials, Customer grants Portainer.io a non-exclusive and non-transferable right to use Customer Materials solely for the benefit of Customer in fulfilment of Portainer.io’s obligations under the SOW. Customer warrants that it has the necessary rights to provide Customer Materials to Portainer.io, so that Portainer.io can access, use, and modify Customer Materials as necessary for Portainer.io’s performance of the Professional Services.
4. Reservation of other Intellectual Property Rights. Each Party reserves for itself all other Intellectual Property Rights that it has not expressly granted to the other. All rights in Portainer.io Retained Materials remain Portainer.io’s sole property. Portainer.io will not be limited in developing, using or marketing services, materials or products that are similar to or related to the Deliverables (other than those portions of the Deliverables where ownership of the copyright has been granted to Customer) or the Professional Services, or, subject to Portainer.io’s confidentiality obligations to Customer, in using the Deliverables in or performing similar Professional Services for any other projects or parties.

Confidentiality

1. Definition. “Confidential Information” means information or materials provided by one Party (“Discloser”) to the other Party (“Recipient”) which are in tangible form and labelled “confidential” or the like, or information which a reasonable person knew or should have known to be confidential in the circumstances. The following information will be considered Confidential Information whether or not marked or identified as confidential: any personally identifiable information (such as the names of Discloser’s customers), or the physical address of any equipment contained in any information collected about Discloser’s computing environment, Discloser’s business operations, pricing, discounts, source code, product roadmaps or strategic marketing plans.
2. Protection. Recipient may use Confidential Information of Discloser; (i) to exercise its rights and perform its obligations under the SOW; or (ii) in connection with the Parties’ on-going business relationship. Recipient will not use any Confidential Information of Discloser for any purpose not expressly permitted by the SOW, and will disclose the Confidential Information of Discloser only to Recipient’s employees or contractors who have a need to know the Confidential Information for purposes of the SOW and who are under a duty of confidentiality no less restrictive than Recipient’s duty under the SOW. Recipient will protect Discloser’s Confidential Information from unauthorised use, access, or disclosure in the same manner as Recipient protects its own confidential or proprietary information of a similar nature, but with no less than reasonable care.

Warranties and Limitation of Liability

1. Portainer.io Warranty. Portainer.io warrants that the services performed under this agreement will be performed with all reasonable skill, care and substantially in accordance with the specifications described in this document. For Fixed Fee Agreed Outcome projects only, for a period of 30 days post contract completion, Portainer will perform or re-perform any services that are the subject of a claim, or, at Portainer’s option, provide you with a credit against fees equal to the amount invoiced by Portainer.io for the services that are the subject of the claim. This clause covers the services involved in issue rectification only, and does not include the purchase of any additional hardware components that may subsequently be required. Any issues directly attributable to faulty software, firmware, device drivers or hardware failures are explicitly excluded from this warranty. Requests for ‘moves, additions or changes’ (MAC’s) are excluded, and any issues arising as a result of you incorrectly performing additions or changes are also excluded. You are responsible for providing first level problem determination, after which time an unsuccessful resolution can be escalated to Portainer.io for investigation. Customer must notify Portainer.io of any alleged breach of this warranty before the end of the Acceptance Period.
2. Limitation of Liability
   1. Limitation on Direct Damages. Portainer.io’s total liability and Customer’s sole and exclusive remedy for a claim of any nature arising out of the SOW, will be limited to proven direct damages caused by Portainer.io’s sole negligence in an amount not to exceed the fees paid to Portainer.io for the Professional Services from which the claim arises.
   2. Disclaimer of Liability. To the maximum extent permitted by applicable law, neither Party will be liable for any indirect, incidental, special, punitive or consequential damages, or for any loss of profits, business opportunity, revenue, goodwill or data, even if advised of the possibility of those damages.

Fees and Payment

1. Payment. Portainer.io will provide the Professional Services (i) for a fixed fee or (ii) on a time and materials basis, as described in the SOW, plus applicable taxes and travel expenses in accordance with Portainer.io’s travel and expense policy. Invoicing occurs monthly for T&M assignments, or upon Customer’s acceptance of each milestone or timesheet, or approval of travel expenses, and must be paid on or before the 20th of the month following the date of tax invoice. If Customer uses pre-purchased Portainer.io Credits as the means of payment, then upon Customer’s acceptance of Project Milestone Completion Form(s), timesheets, or travel expenses, the amount will be deducted from Customer’s balance.
2. Taxes. Fees are exclusive of TAX, and Customer will pay or reimburse Portainer.io for all Taxes arising out of the SOW. If Customer is required to pay or withhold any Taxes in respect of any payments due to Portainer.io, Customer will gross up payments actually made such that Portainer.io will receive sums due in full and free of any deduction for any Taxes.
3. Late Payments. All amounts not paid when due will incur a late charge equal to the lesser of one and one-half percent (1.5%) per month. Portainer.io may suspend performance of the Professional Services while any payment is delinquent.
4. Currency. All charges and fees provided for in the SOW will be in the currency specified in the SOW.
5. Delays. Customer requested resource stand-downs and/or last-minute unforeseen changes impacting planned service delivery shall incur a recovery-fee of US$250/hour per person (minimum 4 hours). In the event of any unforeseen delays in the project due to customer and/or environmental issues or other external influence, Portainer.io reserve the right to part bill any milestone based on an agreed percentage of completion.
6. Cancelling/Rescheduling SOW before Commencement. A minimum of fifteen (15) business days’ written notice is required for rescheduling or cancelling the SOW prior to the commencement of the Professional Services. Only incurred expenses (e.g., airfare), if any, will be owed and invoiced if that notice is given. The entire payment and any incurred expenses are owed if the SOW is cancelled with less than that notice.

Term and Termination

1. Term. The term of the SOW begins on the date stated in the SOW and continues until (i) Customer’s acceptance of the final Deliverables or final timesheet, or (ii) the Parties mutually terminate the SOW in writing.
2. Termination. Either Party may terminate the SOW immediately upon written notice if: (i) the other Party breaches any provision of the SOW and does not cure the breach within thirty (30) days after receiving written notice from the other Party; or (ii) the other Party commits a material breach of the SOW that is not capable of being cured. Portainer.io may terminate the SOW in its entirety effective immediately upon written notice to Customer if Customer: (i) terminates or suspends its business; (ii) becomes insolvent, admits in writing its inability to pay its debts as they mature, makes an assignment for the benefit of creditors, or becomes subject to control of a trustee, receiver or similar authority; or (iii) becomes subject to any bankruptcy or insolvency proceeding.
3. Survival. Any provision of the SOW will survive any termination or expiration of the SOW if by its nature and context it is intended to survive, including provisions relation to payment of outstanding fees, confidentiality, intellectual property, warranties and limitation of liability.

Miscellaneous

1. Insurance. Portainer.io will, for the term of the SOW, carry general and professional liability insurance.
2. Non-solicitation. During the period of the performance and one year from the completion of the Professional Services under the SOW, neither Party will solicit directly or indirectly the employment or services of the employees or contractors of the other Party who were involved in the performance under the SOW. Both Parties acknowledge that (i) any newspaper or other public solicitation not directed specifically to that person will not be deemed to be a solicitation for purpose of this provision, and (ii) this provision is not intended to limit the individual’s right to change jobs.
3. Independent Parties. The Parties are independent contracting parties. Nothing in the SOW will be construed to create a partnership, joint venture or agency relationship between the Parties.
4. Governing Law. The SOW is governed by the laws of New Zealand. The Parties consent to the exclusive jurisdiction of New Zealand courts.
5. Force Majeure. Except for payment of fees, neither Party will be liable for failure to perform its obligations during any period if performance is delayed or rendered impracticable or impossible due to circumstances beyond that Party’s reasonable control.
6. End User License Agreement. If the Professional Services involve Portainer.io software products licensed to Customer under a separate license agreement, unless otherwise provided in the SOW, the terms set out in the separate license agreement will apply with respect to each Portainer.io software product.
7. Counterparts. Facsimile, scanned or electronic signatures on the SOW will bind the Parties to the same extent as originals. The SOW may be executed in multiple counterparts all of which taken together shall constitute one single agreement between the Parties.
8. Severability. If any part of the SOW is held to be unenforceable, the validity of all remaining parts will not be affected.
9. Construction. The headings of sections of the SOW are for convenience and are not to be used in interpreting the SOW. As used herein, the word “including” means “including but not limited to.”
10. Entire Agreement. The SOW (including these General Terms & Conditions, and the Exhibits) contains the entire agreement between the Parties with respect to the subject matter of the SOW and supersedes all previous or contemporaneous communications, representations, proposals, commitments, understandings and agreements, whether oral or written, between the Parties regarding the subject matter of the SOW. The SOW may be amended only in writing and signed by authorised representatives of both Parties. Portainer.io rejects any additional or conflicting terms and conditions on any PO, acknowledgement or other business form issued by Customer, unless expressly otherwise agreed to by the Parties in writing.