Notice concerning defective performance of services

The agreement, schedules, offer, SLA, specifications and acceptance criteria define the service. If the documents are vague, the known purpose, the parties’ practice and applicable professional standards may be relevant.

An obligation to achieve a result must be distinguished from an obligation to exercise due care. A consultant does not automatically guarantee a commercial outcome, but must perform the service with the agreed competence and care.

Each issue is described by date, deliverable, breached requirement and impact. Screenshots, logs, reports, tests, records and file versions must be preserved before interventions that alter the system.

• what was to be delivered and by when;
• what was actually delivered or omitted;
• when and how the issue was reported;
• what access or information the client provided;
• documented costs, delays and losses;
• urgent measures needed to mitigate the loss.

The notice allows an appropriate period where the nature of the breach and the agreement permit remedial action. The requirement must be specific: redoing, completing or repairing work, delivering a file or achieving a testable standard.

If remedial action fails, performance by another provider, a price reduction, set-off, termination and damages may be considered. The remedies must be coordinated; they cannot all be combined without limits.

Acceptance without reservations may affect the dispute, particularly for apparent defects, but does not automatically exclude every claim. It is necessary to examine what was accepted, who had authority and what issues could have been discovered.

Withholding all payment may be disproportionate if a substantial part of the service conforms to the agreement. The undisputed amount, cost of remedial work and right of set-off are calculated, avoiding a situation where the client becomes a debtor for the amount properly due.