1.1 In these Conditions, the terms referred to in the Order have the meanings given to them there and are applicable in the Conditions, and the following words have the meanings set out below:
Any information, content, branding, data, computer files or other material supplied by the Customer to Incuna in connection with the Services, from time to time.
Any material created by Incuna pursuant to the Services.
Intellectual Property Rights
Any patent, trade mark, service mark, registered design, copyright, design right, right to extract
or exploit information from a database, database rights, know-how, confidential information or
process, any application for any of the above and any other intellectual property right recognised
in any part of the world, whether or not now existing or applied for, and all accrued rights of
action in respect of any such rights.
1.1 These Conditions shall apply to and be incorporated in the Contract.
1.2 In the event of any conflict or inconsistency between any of the constituent elements documents making up the Contract, then the following order of precedence shall apply to the extent necessary to resolve such conflict or inconsistency:
1.2.1 Special Conditions;
1.2.2 these Terms and Conditions; and
1.2.3 the Work Order.
1.3 These Conditions shall govern the Contract to the exclusion of any purchase order, acknowledgement or confirmation of order or other terms and conditions purported by the Customer or Incuna to apply to the Contract, even if the Order refers to such document.
Defined terms relating to data protection shall have the meanings given to them in the Data Protection Act 1998.
2.1 Incuna will provide the Services to the Customer on and subject to the Conditions of the Contract, ensuring the Services are delivered within the agreed time scale set out in the Order.
2.2 At any time either Incuna or the Customer may suggest a change to the Services. Such change will not be effective unless and until agreed in writing by the parties and may be subject to additional Charges which shall be reasonable in line with the existing Charges.
2.3 Incuna, at its discretion, will co-operate with any other agencies appointed by the Customer during the provision of the Services, provided these agencies are not in competition with Incuna and that, where such agency was not identified to Incuna by the Effective Date and Incuna suffers additional cost as a result of co-operating with such agency, Incuna reserves the right to levy additional Charges which shall be reasonable in line with the existing Charges.
2.4 Incuna will allocate a Project Manager as stated in the Order. Incuna shall keep the Customer informed of the progress of the Services on a regular basis as agreed with the Customer.
2.5 Incuna will devote the efforts of suitably trained and qualified employees capable of carrying out the Services to a professional standard and shall provide all the necessary facilities therefore.
2.6 Incuna will comply with all applicable laws, regulatory requirements and the codes of practice and conduct in relation to the Contract. Incuna shall also not cause or permit any illegal act in the course of the Services.
3.1 The Charges for the Services are set out in the Order and will be confirmed by the Customer by signing and returning a copy of the Order. Incuna will invoice the Customer as detailed in the Invoicing Schedule in the Order. The Customer (subject to their rights detailed within the Conditions) shall remit payment in respect of each validly submitted invoice to Incuna within thirty (30) days of the invoice date. Time of payment shall be of the essence of the Contract. Customer agrees that payments to Incuna for work completed will not be delayed for reasons of non-performance of or non-delivery by others.
3.2 The Charges and all other amounts payable to Incuna are exclusive of Value Added Tax (or any similar tax) which will be paid by the Customer at the prevailing rate.
3.3 The Customer shall not be required to pay invoices until satisfied that all details in the invoice are consistent with the Services satisfactorily provided. Payment will not be deemed to be the Customers acceptance that the Services have been performed satisfactorily.
3.4 If any valid and correct invoice that is not in dispute payable to Incuna by the Customer is not paid by the due date then (without prejudice to Incuna’s other rights and remedies) Incuna may suspend the provision of any or all of the Services.
The Services will commence on the Effective Date and will continue until completion of the Services, or the Contract is terminated by either party in accordance with condition 10 below.
5.1 The Customer will, at its expense, perform the Customer Obligations.
5.2 The Customer will where reasonably possible provide Incuna with all information, materials and documentation reasonably requested by Incuna to allow Incuna to provide the Services and the Deliverables. The Customer will use its reasonable endeavours to ensure that its staff, contractors and other suppliers co-operate fully with Incuna and cause no delay. Incuna shall submit any material to an authorised representative of the Customer in good time to enable approval to be given prior to any deadline for issue (such time detailed in the Order). Such written approval shall be Incuna’s authority to proceed with the dissemination of the appropriate Deliverables. For the avoidance of doubt Incuna will not submit, publish, disseminate, distribute or otherwise any materials or information including the Deliverables without the prior written consent of the Customer. Failure to do so will be considered a material breach of the Contract.
5.3 The Customer will ensure that the Customer Material complies at all times with all applicable laws, advertising standards and codes of practice and the rules and regulations of any competent authority from time to time and that all the Customer Material is decent, honest and true.
5.4 Where the Services relate to any third party who is co-promoting products alongside the Customer, then the Customer shall be liable for any acts or omissions of such third party as if they were the Customer’s own.
6.1 Despite anything else in the Contract, Incuna will not be obliged to do anything that, in its reasonable opinion, may infringe the Intellectual Property Rights or other rights of any third party. Incuna warrants that the design and development and operation of the Services will be original and that Incuna will not infringe any third party copyright or other intellectual property rights in development or supply of Deliverables.
6.2 The Customer will use its reasonable endeavours to ensure that the Customer Material is at all times accurate and complete, and the Customer will provide updates to the Customer Material as required by the Order.
6.3 Nothing in the Contract shall prevent Incuna from displaying in it marketing material including on its website the name or logo or advertising of any company that competes with the Customer’s business, unless expressly stated in the Special Conditions.
7.1 The Customer will keep back-up copies of all of the Customer Material and its data and will be responsible for the restoration of any of that material or data which is lost, corrupted or inaccessible.
8.1 The contents of all Deliverables, all advice given by Incuna to the Customer, all the methodologies used by Incuna in working for the Customer and the results of the work done by Incuna for the Customer, are for the use of the Customer only and the Customer will not divulge them to any third party (unless in the course of the Customers business), or use them for any purpose other than for using the Services in accordance with the Contract.
8.2 The Intellectual Property Rights in all Deliverables, and in all ideas, methodologies, inventions, discoveries, designs, concepts and work arising from the Services, as between the Customer and Incuna, belong to Incuna. If requested by Incuna, the Customer will do what is necessary (including executing any documents) to enable Incuna to enjoy, defend and enforce those rights. Incuna licenses all such rights to the Customer free of charge and on a non-exclusive worldwide basis to such extent as is necessary to enable the Customer to make reasonable use of the Deliverables in the provision of the Services.
8.3 All Intellectual Property Rights in the Customer Materials are reserved to the Customer or its licensors.
8.4 In the event that new inventions, designs or processes evolve throughout the provision of the Services, the Customer acknowledges that the same will belong to Incuna.
8.5 Incuna grants the Customer a royalty free, irrevocable licence to use the Deliverables for any purposes excluding use with an Incuna direct competitor.
8.6 This Agreement does not create any right on the part of Customer to receive the source code of any Incuna Software.
8.7 Customer shall not, directly or indirectly, cause or permit the reverse engineering or de-compilation of any Incuna Software save to the extent required to be permitted by law.
9.1 Each party undertakes that it will not at any time hereafter use, divulge or communicate to any person, except to its professional representatives, employees, agents, contractors or advisers or as may be required by law or any legal or regulatory authority, any confidential information concerning the business or affairs of the other party or of any member of the group of companies to which the other party belongs which may have or may in future come to its knowledge and each of the parties shall use its reasonable endeavours to prevent the publication or disclosure of any confidential information concerning such matters. This does not apply to information that:
a) Is already in its possession other than as a result of a breach of this Condition; or is in the public domain other than as a result of a breach of this Condition 9.
b) Incuna or the Customer may be required to disclose under any statutory, regulatory or similar legislative requirements subject to the imposition of the obligations of secrecy wherever possible in that relationship.
c) Is disclosed by Incuna to a third party to such extent only as is strictly necessary for the purposes contemplated by this Contract and subject to Incuna using all reasonable endeavours to ensure that the person in question keeps the same confidential and does not use the same except for the purposes for which the disclosure is made
9.2 Without prejudice to Condition 9.1 Incuna and the Customer each undertake that all information disclosed to it by the other party remains confidential to their respective employees, agents and contractors who reasonably require that information in order duly to carry out their obligations under this Contract. Incuna shall ensure that all relevant employees are made aware of the requirements of this Contract.
10.1 The Contract may be terminated:
10.1.1 by Incuna immediately on giving notice in writing to the Customer if the Customer fails to pay any sum due to Incuna and that sum remains unpaid for 14 days after written notice from Incuna that that sum has not been paid; or
10.1.2 by either
party immediately on giving notice in writing to the other if the other commits
any material breach of any term of the Contract, (other than any failure by the
Customer to make any payment, in which case the provisions of condition 10.1.1
will apply) and (in the case of a breach which is capable of being remedied)
has failed, within 28 days after the receipt of a request in writing so to do,
to remedy the breach; or
10.1.3 by either party immediately on giving notice in writing to the other if the other has a receiver or administrative receiver appointed of it or over any part of its undertaking or assets, or passes a resolution for winding-up (other than for the purposes of a bona fide scheme of solvent amalgamation or reconstruction), or if a court of competent jurisdiction makes an order to that effect, or if the other party becomes subject to an administration order or enters into any voluntary arrangement with its creditors, or if any similar process to any of the above is begun, or if the other party ceases or threatens to cease to carry on its business.
10.2 Any termination or expiry of the Contract (however it happens) will not affect any accrued rights or liabilities of either party. Nor will it affect the continuing in force of any provision of the Contract which is expressly, or by implication, intended to continue in force on or after the termination or expiry of the Contract.
10.3 In the event that the Customer cancels or postpones the Services prior to their scheduled completion, the Customer will pay Incuna on demand the greater of 50% of the total Charges as set out in the Order, or a pro-rata fee for the Services already performed, plus any disbursements or other expenses incurred to the date of cancellation or postponement.
10.4 In the event that:
a) the product licence for the Product is withdrawn or is no longer current, or
b) there is a change in the law or the rules and regulations of any regulatory authority, which renders it impossible for the Services to be provided in the manner contemplated by this Contract or Order
then the Customer shall be entitled to give written notice to Incuna to either terminate this Contract within twenty-one (21) calendar days or enter into good faith negotiations with an aim to revise the Services.
10.5 Incuna shall upon termination of this Contract or otherwise at the request of the Customer promptly destroy or return at the expense of the Customer all materials belonging to the Customer (including but not limited to Customer Material and Deliverables), other than those which Incuna has a legal obligation to archive.
10.6 Conditions 1, 8, 9, 10.6, 10.3, 14 and 15.6 of the Conditions will survive the termination or expiry of the Contract.
Despite anything else contained in the Contract,
neither party will be liable for any delay or failure in performing its
obligations under the Contract if that delay or failure is caused by
circumstances beyond its control (including, without limitation, any delay
caused by any act or omission of the other party or any third party), and the
party so delaying will be entitled to a reasonable extension of time for the
performance of its obligations.
12.1 The Customer warrants to Incuna that none of the Customer Material or its provision to Incuna will infringe the Intellectual Property Rights of any third party or will breach any applicable data protection legislation or any data protection principles, and that Incuna is entitled to retain, disclose and amend that Customer Material for the purpose of fulfilling its obligations under the Contract.
12.2 The Customer warrants to Incuna that the Customer has the right to disclose the Customer Material to Incuna and that Incuna is entitled to retain, disclose and amend that information for the purposes of fulfilling its obligations under the Contract. Without prejudice to the above, the Customer also warrants that it has obtained the consent of any individual whose Personal Data are disclosed to Incuna under the Contract.
12.3 The Customer warrants to Incuna that the Customer Material is complete, up to date, true and correct and that all additions and changes to the Customer Material will be complete, up to date, true and correct.
Each of the Parties shall comply with its
obligations under the Data Protection Act 1998.
14. WARRANTY, LIABILITY & INDEMNITY
14.1 Incuna will perform the Services with reasonable skill, care and diligence to the Customer’s reasonable satisfaction and in accordance with the Conditions of this Contract. If the Services are not provided in accordance with this warranty and the Customer notifies Incuna in writing of the non-compliance with this warranty within 1 month after performance, Incuna will re-perform the Services. In the event that the Services or any part thereof fails to satisfy the Customer’s reasonable requirements, and the point of failure cannot be remedied to the Customer’s satisfaction within a timeframe acceptable to the Customer, the Customer and Incuna will enter into good faith negotiations to agree a reduction in the Charges commensurate with the degree of failure to perform the Services.
14.2 This Contract sets out the entire liability of Incuna (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of any breach of the Contract, any use made by the Customer of the Services, the Deliverables or any part of them and any representation, statement or tortuous act or omission (including negligence) or any other liability arising under or in connection with the Contract.
14.3 Nothing in these Conditions limits or excludes the liability of Incuna or the Customer for death or personal injury resulting from negligence, or for any damage or liability incurred by the Customer or Incuna as a result of fraud or fraudulent misrepresentation by the other.
14.4 Subject to conditions 14.3 and 14.4, neither party shall be liable for loss of profits, loss of business, depletion of goodwill and/or similar losses, loss of anticipated savings, any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
14.5 Subject to conditions 14.3 and 14.4, Incuna’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance or contemplated performance of the Contract shall be limited to the value of monies received by Incuna from Customer in relation to the relevant Work Order.
14.6 Because of the nature of software and the Internet and of circumstances beyond Incuna’s control, Incuna makes no representation and gives no warranty that the Services will be error free or uninterrupted, or that all errors or problems will or can be rectified by error correction or other avoidance action.
14.7 The Customer will indemnify Incuna and keep Incuna indemnified against all actions, costs, payments, charges, claims, damages, demands, expenses, fines, liabilities, losses, penalties, proceedings (whether civil or criminal), other sanctions of the court and judgement costs (including legal costs on a full indemnity basis) which Incuna incurs, pays, suffers or sustains in connection with the use or publication of any of the Customer Material, or as a result of the breach of any provision of the Contract by the Customer.
15.1 All notices to be given under the Contract will be deemed to have been served only if delivered by hand or sent by pre-paid post, or by fax or e-mail, to the intended recipient at its last known postal or e-mail address or fax number. The notice will be effective: if delivered by hand, on delivery; if sent by fax or e-mail, when the sender receives confirmation of error free transmission or of receipt; and if sent by post, on the fourth day after posting.
15.2 Neither party shall, without the prior written consent of the other, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract. Incuna shall be entitled to use affiliated companies, agents, contractors or subcontracts in the provision of this Contract provided always that Incuna will be responsible for the acts and omissions of such agents and sub-contractors as if Incuna performed the Services.
15.3 Nothing in the Contract is intended to, or shall operate to, create a partnership between the parties, or to authorise either party to act as agent for the other. No relationship of employer or employee shall arise or be created under this Contract between the Customer and Incuna.
15.4 The Contract is made for the benefit of the parties to it and (where applicable) their successors and permitted assigns and is not intended to benefit, or be enforceable by, anyone else.
15.5 The Contract sets out the entire agreement between the parties relating to its subject matter and supersedes all prior oral or written agreements, arrangements or understandings between them relating to such subject matter. Save in the case of fraud, the parties acknowledge they are not relying on any representation, agreement, term or condition which is not set out in the Contract.
15.6 The Contract shall be governed by, and construed in accordance with, the law of England and Wales. The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the Contract or its subject matter.
15.7 Headings to Conditions in this Contract are for the purpose of information and identification only and shall not be construed as forming part of this Contract.
15.8 The waiver by either party of a breach or default of any of the provisions of this Contract by the other party shall not be construed as a waiver of any succeeding breach of the same or other provisions nor shall any delay or omission on the part of either party to exercise or avail itself of any right, power or privilege that it has or may have hereunder operate as a waiver of any breach or default by the other party.
15.9 The illegality of any provision (or any part thereof) of this Contract shall not affect the legality, validity or enforceability of the remainder of its provisions or the other parts of such provision as the case may be which provisions shall remain in full force and effect.
15.10 If any provision of this Contract shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable the invalidity or unenforceability of such provision shall not affect the other provisions of this Contract and all provisions not affected by such invalidity or unenforceability shall remain in full force and effect. The parties hereby agree to attempt to substitute for any invalid or unenforceable provision a valid and enforceable provision which achieves to the greatest extent possible the economic, legal and commercial objectives of the invalid or unenforceable provision.