Terms & Conditions
Terms & Conditions
iCreate
Terms and Conditions of business of iCreate Ltd
(“The Company”) Registered Address: 28 Uplands Crescent Swansea UK SA2 0PB Terms & Conditions of Business of iCreate Ltd (“the Company”)
1. Definitions
In these Standard Terms & Conditions where the context otherwise requires the following expressions shall have the following meanings.
“Change Request” a written request by the Customer for a change to the System.
“Confidential Information” shall include, but not necessarily be limited to, all information which is not publicly known including the business, finances, technology (including without limitation any third party Software, the Software the System and the Documentation) trade secrets, and any other commercially sensitive information of either party regardless of its nature.
“Contract” the contract between the Company and the Customer for the provision of the Services which includes these Terms & Conditions, Order Forms, signed Agreements and the Company’s service literature.
“Customer” the sole trader, individual, partnership, organisation or body corporate who enters into this Contract with the Company as set out in any Order Form, signed Agreement or schedule hereto.
“Documentation” the documentation set out in the Quotation Proposal/ Service Agreement including all company literature, graphics, texts, CDs, DVDs, floppy disks or other electronic transfer.
“Specification” the Company’s specification appearing at the Quotation Proposal/Service Agreement for the software documentation and/or System.
“Intellectual Property Rights” all copyright and other intellectual property rights, howsoever arising and in whatever media, whether or not registered, including (without limitation) patents, trade marks, service marks, trade names, registered design and any applications for the protection or registration of these rights and all renewals and extensions thereof throughout the world.
“Licence” the licence granted by the Company to the Customer pursuant to Clause 7.
“Payment Schedule” the payment schedule set out in the Quotation Proposal/Service Agreement.
“Price” the price for the provision of the Services, the Licence and the Documentation set out in the Quotation Proposal/Service Agreement.
“Project” the development, delivery and testing of the Documentation and Software and any Specified Equipment.
“Rates” the rates set out in the Quotation Proposal/Service Agreement. “Services” the software development, procurement, consulting, drafting, collating, maintenance, support training and computer programming services required to produce the Documentation Software and/or System for the Customer as set out in the Quotation Proposal/Service Agreement.
“Software” the software and graphics content being developed or customised by the Company for the Customer, details of which are set out in the Quotation Proposal/ Service Agreement, including any enhancements and modifications made.
“Specified Equipment” the configuration of computer(s) and ancillary equipment, including operating systems and system software on which the Software or Documentation is to function as may be specified in the Quotation Proposal/ Service Agreement.
“System” collectively the Documentation and the Software and Specified Equipment.
2. The Project
2.1. The Company shall provide the Customer with the Services as detailed in the Quotation Proposal; and carry out any other Services agreed by the parties with due care and skill in accordance with best practice in its industry, during standard operating business hours currently 9am to 5.30pm weekdays save for public holidays. Out of hours work can be arranged if agreed in writing. 2.2.
2.2 The Company shall license the Documentation and Software to the Customer in accordance with Clause 7.
3. The Customer’s Obligations
The Customer shall:
3.1. Make available to the Company, free of charge, such computer facilities (including but not limited to unhindered access to the Specified Equipment), technical and other information in respect of the System and office and secretarial services as may be required to enable the Company to carry out its obligations under this Contract.
3.2. Take all reasonable precautions to protect the health and safety of the Company, its servants or agents.
3.3. Ensure that its employees and other independent contractors co-operate reasonably with the Company and its employees in carrying out the Services.
3.4. Ensure that the Documentation Software and any Specified Equipment is operated by the Customer in accordance with Company’s specifications provided to the Customer prior to signature of this Contract and that all of the Customer’s employees are trained and authorised in respect of the same in accordance with such specifications.
3.5. Promptly furnish the Company with such information, material, data, artwork, texts and documents owned by the Customer only as it may reasonably request for the proper performance of its obligations under this Contract.
3.6. Ensure that its representative is available to provide information as reasonably required by the Company.
3.7. Ensure that its servants and agents shall not alter, move or attach anything to, repair or adjust the Documentation, the Software and/or the Specified Equipment or any part thereof without the prior written consent of the Company, such consent not to be unreasonably withheld or delayed.
3.8. Fully comply with the terms of the Contract.
4. Change Control
4.1. If the Customer identifies a requirement for a change, a Change Request must be sent to the Company detailing the change requirements. The receipt of the Change Request by the Company will constitute a request to the Company to state in writing the effect such a change shall have on the Services and Price. The Company shall use its best endeavours to supply the necessary details within seven working days from receipt of the Change Request or such other period as may be agreed.
4.2. Where a change to the Price is deemed required by the Company, the rates used as the basis for the additional cost for the Change Request shall be the Rates as detailed in the Quotation Proposal or otherwise notified in writing to the Customer. If the change is implemented by the Company, the amended Services and Price shall then become the contractual Services and Price for the purpose of this Contract.
4.3. Prices set out in any quotation or in the Quotation Proposal or any other Agreement are based on information available to the Company at the relevant date and may be increased by the Company by agreement.
4.4. Any increase in costs incurred by the Company as a result of any breach of the Customer of its obligations pursuant to this Contract shall be resolved in accordance with the dispute resolution process contained herein.
5. Acceptance
5.1. The Customer shall accept the Documentation Software and System within 30 days after receipt of a signed Certificate of Completion from the Company
6. The Company’s Obligations
6.1. The Company shall ensure that it and its servants, agents and sub-contractors perform the Services using industry best practice and due care and skill.
6.2. If the Company wishes to use material (in any medium) owned by third parties as part of the Documentation and/or Software, they shall notify the Customer and obtain the Customer’s approval, including for any expense that will be charged to the Customer from those third parties such written assignments, releases, waivers, permissions and licences as necessary to permit such use and to enable the Customer to exploit any program containing that material in the Software in all present and future media. The Company shall deliver copies of any documentation relevant to third party clearances (or the Company’s own certification of such permissions) to the Customer upon reasonable written request.
7. Licence
7.1. On payment in full of the Price, the Company grants to the Customer a non-exclusive, perpetual, non-transferable right to use the Software and the Documentation as provided by the Company, and to reproduce the material for marketing / promotional purposes as described in the Proposal, including the right to sub licence such rights to third parties in accordance with those purposes.
8. Proprietary Rights
8.1. The Intellectual Property Rights in the Software and the Documentation shall be and remain vested in the Company at all times. Notwithstanding the foregoing, the Company may not use any Software or Documentation containing the Customer’s or the Customer’s licensor’s Intellectual Property Rights without the express written permission of the Customer in respect of each such usage.
8.2. If The Customer’s use or possession of the Documentation and Software or any part of the Documentation and Software in accordance with this Agreement, is held by a Court of competent jurisdiction to constitute an infringement of a third party’s Intellectual Property Rights as the result of a breach by the Customer then the Customer shall use all reasonable endeavours to:
8.2.1. procure the right to continue using the Documentation and Software or the infringing part; or
8.2.2. modify or replace Documentation and the Software (or part thereof) at the Customer’s sole expense so as to avoid the infringement and shall at all times keep the Company fully and effectively indemnified in respect thereof.
8.3. If the remedies set out in Clause 8.2 above are not in the Company’s opinion reasonably available, then the Customer shall return the Documentation and Software which is the subject of the intellectual property claim and shall not retain or use any copies thereof and shall fully indemnify the Company in respect of any and all losses arising therefrom howsoever and wheresoever arising.
9. Charges and Expenses
9.1. In consideration of the Company carrying out the Project, the Customer shall pay to the Company the Price which shall be invoiced to the Customer in the specified proportions set out in the Quotation Proposal and subject to Clause 9.4.
9.2. In consideration for any or further work or attendance carried out by the Company as required by the Customer which is not referred to in the Quotation Proposal, the Customer shall pay to the Company the amounts invoiced by the Company to the Customer based on the Rates set out in the Quotation Proposal or otherwise agreed with the Customer by the Company from time to time.
9.3. Payment of sums due by the Customer to the Company shall be made in cleared funds in pounds sterling within 30 days of the receipt of an invoice from the Company. If payment of any sum due to the Company is delayed in addition to its other rights under the Contract, the Company shall be entitled to charge interest thereon of 10% above Barclays Bank Plc base rate premium per annum, until payment in full, such interest to accrue both before and after any monetary Judgment of any Court. The Company further reserves the right to request stage payments during the provision of the Services, subject to the approval of the Customer.
10. Liability and Insurance
10.1. Except in respect of materials provided by the Customer to the Company, the Company will indemnify the Customer for any claim, suits or proceedings with respect to any claim that the Software or the Documentation or their use infringe any Intellectual Property Rights of any third party. Such indemnity is unlimited and falls outside any limitation of liability set out in this Contract.
10.2. The Company will indemnify the Customer for damage to tangible property caused by the negligence of its employees in connection with the performance of their duties under this Contract or by defects in any product supplied pursuant to this Contract. The Company’s total liability under this Clause shall be limited to three times the total fees due under this Contract for any one event or series of connected events.
10.3. Save in respect of claims for death or personal injury arising from the Company’s negligence, in no event will the Company be liable for any damage resulting from loss of data or use, lost profits, loss of anticipated savings, loss of business nor for any damage that arise as an indirect or secondary consequence of any act or omission of the Company whether such damage was reasonably foreseeable or actually foreseen.
10.4. Except as provided above in the case of infringement of third party Intellectual Property Rights and personal injury, death and damage to tangible property, the Company’s maximum liability to the Customer under this Contract or otherwise for any cause whatsoever (whether in the form of additional cost of remedial services or otherwise) will be for direct costs and damages only and will be limited to a sum equivalent to three times the price payable to the Company for this Contract.
10.5. The parties acknowledge and agree that the limitations contained in this Clause 10 are reasonable in the light of all of the circumstances particularly in respect of the size and nature of the Company compared with the size and nature of the Customer and the ability of the Customer to obtain insurance cover in the light of these Terms & Conditions.
10.6. The Customer’s statutory rights as a consumer (if any) are not affected. All liability that is not expressly assumed in this Contract is excluded. These limitations will apply regardless of the form of action, whether under statute, in contract or tort including negligence or any other form of action. For the purposes of this Clause 10, the “Company” includes its employees, sub-contractors and suppliers who shall all have the benefit of the limits and exclusions of liability set out above in terms of the Contracts (Rights of Third Parties) Act 1999. Nothing in this Agreement shall exclude or limit liability for fraudulent misrepresentations.
11. Termination
11.1. This Contract shall continue until completion of the Services unless the Contract is terminated in accordance with any of the provisions of this Clause 11 or any other clause of this Contract
11.2. Either party shall be entitled to terminate this Contract forthwith at any time by written notice to the other party if;
11.2.1. the other party commits a breach of any of the terms of this Contract and (if the breach is capable of remedy) fails to remedy the breach within 30 days after receipt of notice in writing to do so; or
11.2.2. the other party becomes subject to an Administration Order, a Receiver or Administrative Receiver or similar appointment, or if an encumbrancer takes possession of any of the other party’s property or assets, the other party enters into an agreement or composition with its creditors, ceases or threatens to cease to carry on business, becomes insolvent or ceases to be able to pay its debts as they fall due.
11.3. Any termination of the Licence or this Contract (howsoever occasioned) shall not affect any accrued rights or liabilities of either party nor shall it affect the coming into force or the continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination.
11.4. Not with standing any other term of this Contract, provided that the Customer has paid all amount due to the Company under this Contract, the licences for the use of Software and Documentation contained herein shall continue in force beyond any such termination.
12. Confidentiality
12.1. Both during this Contract and after its termination, the parties shall treat as confidential and shall procure that its personnel and each of them treat as confidential and shall not (and shall procure that their personnel and each of them does not) other than in the proper provision of the Services required to fulfil the Project, use or disclose to any person, firm or company, any Confidential Information belonging to the other party or its clients, suppliers or customers, nor permit its use or disclosure.
12.2. The provisions of this Clause 12.1 shall not apply where Confidential Information is divulged to:
12.2.1. either party’s own employees and then only to those employees who need to know the same;
12.2.2. either party’s auditors, an officer of Inland Revenue, an officer of HM Customs & Excise, a Court of competent jurisdiction, governmental body or applicable regulatory authority and any other persons or bodies having a right, duty or obligation to know the business of the other party and then only in pursuance of such right, duty or obligation.
12.3. Both parties undertake to ensure that persons and bodies referred to in Clause 12.2 are made aware before the disclosure of any part of the Confidential Information that the same is confidential and that they owe a duty of confidence to the other party.
12.4. Each party to this Contract shall promptly notify the other party if it becomes aware of any breach of confidence by any person to whom it divulges all or any part of the Confidential Information and shall give the other party all reasonable assistance in connection with proceedings which the other party may institute against such person for breach of confidence.
12.5. The provisions of this Clause shall survive the termination of this Contract but the restrictions contained in Clause 12.1 shall cease to apply to any information which may come into the public domain otherwise than through unauthorised disclosure.
12.6. Nothing in this Clause 12 shall prevent the Company from exploiting any inventions or software that it develops during the term of this Contract.
13. Interpretation
13.1. In this Contract unless the context otherwise requires:
13.1.1. words importing the singular number include the plural number and vice 13.1.2. words importing persons include firms, companies and corporations and vice versa;
13.1.3. references to numbered clauses and schedules are references to the relevant clause in or schedule to this Contract;
13.1.4. reference to any schedule to this Contract to numbered paragraphs relate to the numbered paragraphs of that schedule;
13.1.5. the headings to the clauses, schedules and paragraphs of this Contract will not affect the interpretation;
13.1.6. any reference to an enactment includes reference to that enactment as amended or replaced from time to time and to any subordinate legislation or byelaw made under that enactment;
13.1.7. any obligation on any party not to do or omit to do anything is to include an obligation not to allow that thing to be done or omitted to be
13.1.8. any party who agrees to do something will be deemed to fulfil that obligation if that party procures that it is done.
13.2. In the case of conflict or ambiguity between any provision contained in the body of these Terms & Conditions and any provision contained in any schedule or in any other document produced by either party, the provision in the body of these Terms & Conditions shall take precedence.
14. Agency, Partnership
This Contract shall not constitute or imply any partnership, joint venture, agency fiduciary relationship or other relationship between the parties other than the contractual relationship expressly provided for in this Contract.
15. Amendments
This Contract may not be released, discharged, supplemented, interpreted, amended, varied or modified in any manner except by an instrument in writing signed by a duly authorised officer or representative of each of the parties.
16. Assignment
16.1. This Contract is personal to the parties and, subject to Clause 16.2 below, neither this Contract nor any rights, licences or obligations under it may be assigned by either party without the prior written approval of the other party.
16.2 Not with standing the foregoing, either party may assign this Contract to any acquirer of all or of substantially all of such party’s equity, securities, assets or business relating to the subject matter of this Contract or to any entity controlled by, that controls, or is under common control with a party to this Contract. Any attempted assignment in violation of this clause will be void and without effect.
17. Entire Agreement
This Contract supersedes all prior agreements, arrangements and undertakings between the parties and constitutes the entire agreement between the parties relating to the subject matter of this Contract. However, the obligations of the parties under any pre-existing non-disclosure agreement shall remain in full force and effect insofar as there is no conflict between the same. The parties confirm that they have not entered into this Contact on the basis of any representation that is not expressly set out in this Contract.
18. Force Majeure
Notwithstanding anything else contained in this Contract, the Company shall not be liable for any delay in performing its obligations under this Contract if such delay is caused by circumstances beyond its reasonable control (including without limitation any delay caused by any act or omission of any other party). Subject to the Company so delaying notifying the Customer of the reasons for the delay, the performance of the Company’s obligations shall be suspended during the period that the said circumstances persist and the Company shall be granted an extension of time for performance equal to the period of the delay. Where such delay is caused by the act or omission of the Customer (in which event the rights, remedies and liabilities of the Company conferred and imposed by the other terms of this Contract shall subsist in addition to the following):
18.1. any costs arising from such delay shall be borne by the Customer;
18.2. The Company may, if such delay continues for more than 10 weeks, terminate this Contract forthwith giving notice in writing to the Customer and that the Customer shall pay the Company a reasonable sum in respect of any work carried out by it prior to such termination.
19. Notices All notices under this Contract shall be in writing and shall be deemed to have been duly given:
19.1. when delivered, if delivered by hand during normal business hours of the recipient; or
19.2. when sent, if transmitted by fax or e-mail and a successful transmission report or return receipt is generated; or
19.3. on the second business day following mailing, if mailed by first class national ordinary mail, postage pre-paid; in each case addressed to the most recent address or facsimile number notified to the other party.
20. Schedules
The provisions of the Quotation Proposal shall form part of this Contract as if set out herein.
21. Severance
If any provision of this Contract is prohibited by law or judged by a Court to be unlawful, void or unenforceable the provision shall, to the extent required, be severed from this Contract and rendered ineffective as far as possible without modifying the remaining provisions of this Contract and shall not in any way affect any other circumstances of or the validity or enforcement of this
22. Successors and Assignees
22.1. This Contract shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assignees and references to any party in this Contract shall include its successors and permitted assignees.
22.2. In this Contract references to a party include references to a person: 22.2.1. 22.2.2. who for the time being is entitled by assignment, novation or otherwise) to that party’s rights under this Contract (or any interest in who, as administrator, liquidator or otherwise, is entitled to exercise those rights, and, in particular, those references include a person to whom those rights (or any interest in those rights) are transferred or pass as a result of a merger, division, reconstruction or other reorganisation involving that party. For this purpose, references to a party’s rights under this Contract include any similar rights to which another person becomes entitled as a result of a novation of this Contract.
23. Waiver
No delay, neglect or forbearance on the part of either party in enforcing against the other party any term or condition of this Contract shall either be or be deemed to be a waiver or in any way prejudice any right of that party under this Contract. No right, power or remedy in this Contract conferred upon or reserved for either party is exclusive of any other right, power or remedy
24. Time
Time is of the essence of the Services and the Company will complete the Services in accordance with any time specified in the Quotation Proposal or otherwise, except as provided above in the case of Force Majeure or delays caused by the act or omission of the customer.
25. Sub-Contracting
Subject to the Customer’s approval, not to be withheld unreasonably, the Company may perform any or all of its obligations under this Contract through agents or sub-contractors, provided that the Company shall remain liable for such performance and shall indemnify the Customer against any reasonable loss or damage suffered by the Customer arising from any act or omission of such agents or sub-contractors but subject to the limitations set out herein.
26. Third Parties
The parties confirm their intent (subject to Clause 10.5) not to confer any rights on any third parties by virtue of this Contract and accordingly the Contracts (Rights of Third Parties) Act 1999 shall not apply to this Contract.
27. Proper Law and Jurisdiction
27.1. This Contract and all matters arising from it and any dispute referred to below shall be governed by and construed in accordance with the law of England and Wales.
27.2. Each party recognises that the other party’s business relies upon the protection of its Intellectual Property Rights (“IPR”) and that in the event of a breach or threatened breach of IPR the other party will be caused irreparable damage and such other party may therefore be entitled to injunctive or other equitable relief in order to prevent a breach or threatened breach of its IPR.
27.3. With respect to all other disputes which are not IPR related pursuant to Clauses 27.1 and 27.2 above and its special rules the following procedures in Clauses 27.3 to 27.6 shall apply. Where there is a dispute the aggrieved party shall notify the other party in writing of the nature of the dispute with as much detail as possible about the deficient performance of the other party. A representative from senior management of each of the parties (“representatives”) shall meet in person or communicate by telephone within 5 business days of the date of the written notification in order to reach an agreement about the nature of the deficiency and the corrective action to be taken by the respective parties. The representatives shall produce a report about the nature of the dispute in detail to their respective boards and if no agreement is reached on corrective action, then a representative of each party shall meet in person or communicate by telephone to facilitate an agreement within 5 business days of a written notice by one to the other. If the dispute cannot be resolved at board level within a further 5 business days, or if the agreement upon completion dates in any written plan of corrective action are exceeded, either party may seek its legal remedies as provided below.
27.4. If the parties cannot resolve a dispute in accordance with the procedure in Clause 27.3 above then they shall, with the assistance of the Centre for Alternative Dispute Resolution or similar agency, seek to resolve the dispute or difference amicably by using an Alternative Dispute Resolution (“ADR”) procedure acceptable to both parties before pursuing any other remedies available to them. If either party fails or refuses to agree to or participate in the ADR procedure or if in any event the dispute or difference is not resolved to the satisfaction of both parties within 30 days after it has arisen, the matter shall be settled in accordance with the procedure below.
27.5. If the parties cannot resolve the dispute by the procedures set out above, the parties shall irrevocably submit to the exclusive jurisdiction of the Courts of England and Wales for the purposes of hearing and determining any dispute arising out of this Contract.
27.6. While the dispute resolution procedure above is in progress and any party has an obligation to make a payment to another party or to allow a credit in respect of such payment, the sum relating to the matter in dispute shall be paid into an interest bearing deposit account to be held in the names of the relevant parties at a clearing bank and such payment shall be a good discharge of the parties’ payment obligations under this Contract. Following resolution of the dispute, whether by mediation or legal proceedings, the sum held in such account and any interest accrued shall be payable as determined in accordance with the mediation or legal proceedings.
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