TERMS AND CONDITIONS FOR SERVICES SUPPLIED BY INCOMES DATA
RESEARCH LIMITED (“COMPANY”) (v2)
4.3
4.4
All services supplied by Company are on the following terms and
conditions (“these Terms”) which, together with any order form issued
by Company (“A Company Order Form”) and any specification of services
attached as a Schedule thereto, shall be referred to as “the Agreement”.
Notwithstanding any contrary statement in documentation issued by
Client, including but not limited to purchase orders, no terms and
conditions proposed by Client shall apply to this Agreement, unless
specified by Company on a Company Order Form or otherwise agreed in
writing.
In the event of any conflict or ambiguity between provisions in any
document forming part of this Agreement other than these Terms, where
such document specifically references by clause the term of these Terms
to be amended, such provisions shall prevail only to the extent to the
extent of any such conflict or ambiguity.
1.
DEFINITIONS
In this Agreement these terms shall have the following meanings:
“Charges” means the fees and payments set out in Schedule 1;
“Input” means such information and/or documents to be supplied by
Client to Company for the purposes of this Agreement as agreed between
the parties;
“Intellectual Property Rights (IPR)” means any patent, trade mark
(registered or unregistered), registered design, unregistered design right,
copyright, database right, domain name, invention, know how or other
similar right;
“Output” means any deliverable which Company will compile and/or
provide to Client as part of the Services; and
“Services” means those services set out in Schedule 1 hereto.
2.
2.1
2.2
2.3
2.4
SERVICES
In consideration of the payment by Client of the Charges, Company
will provide the Services subject to the terms of this Agreement and
shall use reasonable endeavours to provide the Services within the
agreed timetable.
Client will at its own expense use reasonable endeavours to supply
Input in sufficient time for Company to be able to complete the
Services according to the agreed timetable.
Company shall not be liable for any delay in completing the Services
which result from delay by Client in providing Input or otherwise
caused by Client.
Client is solely responsible for the accuracy and completeness of
any Input.
4.5
4.6
4.7
5.
5.1
5.2
5.3
3.
3.1
3.2
4.
4.1
4.2
CHARGES
Client shall pay the Charges plus any value added tax at the
prevailing rate, subject to receipt by Company of a valid VAT invoice
therefor. Company may invoice Client at the end of each month for
any month during which Services are provided. Payment shall be
made without set off or deduction within 30 days of Client’s receipt
of a valid invoice.
In the event that an invoice is disputed, Client shall notify Company
within 14 days of receipt and pay the undisputed amount within the
30 day period. If full payment is not made by in respect of any
undisputed invoice by the due date then, without prejudice to any
rights or remedies otherwise available, Company may charge
interest on the outstanding balance of all overdue sums at the rate
of 2% per annum above the current base rate at Barclays Bank.
INTELLECTUAL PROPERTY
All IPR in Input shall belong to Client and Client hereby grants a
limited licence to Company to use, adapt and incorporate Input for
the purposes of this Agreement and for the purposes set out in
Clause 4.4 below.
Client warrants that Input and its use by Company for such
purposes will not infringe any third party rights and that Client has
the necessary rights in any Input to enter into this Agreement.
Client further warrants that any Input has been compiled according
to Data Protection Laws.
5.4
5.5
6.
Except for the licence granted by this Agreement, all IPR in Output
will remain with Company.
Company’s business involves the re-use in anonymous form of
previously collected data whether Input or Output (“Company
Data”) in this and future assignments in order to enhance the value
of the Services to each Client. Client acknowledges that Output may
derive from or contain Company Data or data provided by a third
party (“Third Party Data”). Use of Third Party Data, on which there
may be additional restrictions, will be disclosed to Client. Client
acknowledges that all IPR in Company Data/Third Party Data are
reserved to Company/its licensors as the case may be.
Subject to the restrictions below and the payment of the Charges,
Company grants to Client a perpetual non-exclusive irrevocable
royalty free licence to use Output in the course of Client’s business.
Except as expressly permitted by this Agreement or by applicable
law or with Company’s express written permission, Client shall not:
4.6.1 reproduce Output or part thereof for dissemination to any
third party;
4.6.2 copy store publish transmit sub-licence distribute sell or
otherwise use Output ;
4.6.3 create derivative works from Output or any part thereof; or
4.6.4 use Output as part of or the basis for any material offered for
sale licence or distribution.
Nothing in this Agreement shall prevent Company from using any
know how gained from the provision of the Services.
CONFIDENTIALITY AND COMPLIANCE WITH LAW
Each party will maintain all confidential information of the other
party in strict confidence and will not disclose any confidential
information of the other to any third party without the disclosing
party’s prior written consent. Except as permitted by this
Agreement in relation to Input and Output, neither party will use
any confidential information of the other for any purpose
whatsoever except in performing its duties and exercising its rights
under this Agreement.
Confidential information shall not include information which:
5.2.1 is or becomes public knowledge (otherwise than by breach of
this Agreement);
5.2.2 was in the possession of the receiving party, without
restriction as to its disclosure, before receiving it from the
disclosing party;
5.2.3 is received from a third party who lawfully acquired it and
who is under no obligation restricting its disclosure;
5.2.4 is information independently developed without access to
the confidential information; or
5.2.5 is used for the purpose of obtaining professional advice.
In the event that a receiving party or anyone to whom it transmits
the Information becomes legally compelled to disclose any of the
Information, to the extent the recipient is legally permitted to do
so, it will provide the disclosing party with prompt notice so that
the disclosing party may seek a protective order or other
appropriate remedy and/or waive compliance with the provisions
of this Agreement. In the event that such protective order or other
remedy is not obtained, or that the disclosing party waives such
requirement, the recipient will furnish only that portion of the
Information which is legally required and will exercise its best
efforts, at the expense of the disclosing party, to obtain a protective
order or other reliable assurance that confidential treatment will be
accorded the Information.
Notwithstanding the provisions of this Clause, Company may use
Client’s name and refer to Services provided under this Agreement
in materials provided to third parties.
In performing the Services, the Company shall comply with all
relevant laws, where applicable including but not limited to the
following, including any amendments thereto or relevant
connected legislation, directives or regulations:
5.5.1 the Data Protection Act 1998;
5.5.2 the Bribery Act 2010;
5.5.3 The Freedom Of Information Act 2000; and
5.5.4 The Official Secrets Acts 1911-1989.
LIABILITY
6.1
6.2
6.3
6.4
6.5
6.6
6.7
6.8
Company warrants to Client that:
6.1.1 the Services will be provided using reasonable care and skill
and that all personnel provided by Company shall be fully
experienced, qualified, competent and able to perform the
Services;
6.1.2 the Output does not infringe the IPR of any third party; and
6.1.3 it has the necessary rights to grant the rights specified in this
Agreement and that it has authority to enter into this
Agreement to provide the Services.
Except for the warranties specified above, the Services and Output
are provided “as is” without warranty of any kind, express or
implied, including but not limited to warranties of performance,
merchantability, satisfactory quality, fitness for a particular
purpose, accuracy, omissions, completeness and currentness.
In the event of a breach of the above warranties, at its sole option,
Company will re-perform the Services and/or replace Output to the
extent reasonably necessary to rectify such breach. In the event
that Company is unable to provide the remedy set forth above
within a commercially reasonable period of time and at a
commercially reasonable cost, Company may terminate the
Agreement forthwith and credit to Client any pre-paid fees in
respect of the Services. The remedies set forth in this paragraph
are Client’s sole and exclusive remedies, and Company’s sole and
exclusive liability, for any such breach.
Company shall not be liable for:
6.4.1 any losses arising from incorrect or incomplete Input or acts
or omissions which result from instructions from Client;
6.4.2 any indirect, consequential or special damage; or
6.4.3 any loss of profits, revenue, business, anticipated savings or
goodwill, in each case where direct or indirect.
In the event that Company is liable to Client in respect of any losses,
then Client’s exclusive remedy and Company’s entire liability for
any such claim shall be limited to the total Charges payable under
this Agreement.
Neither Output nor any aspect of the Services amounts to legal or
financial advice and must not be relied upon as such.
Force Majeure. No failure or omission by either party to carry out
or observe any of the terms and conditions of this Agreement shall
give rise to any claim against it or be deemed a breach of this
Agreement if such failure or omission arises from any cause
reasonably beyond its control including but not limited to act of
God, war (whether declared or not), sabotage, riot, insurrection,
terrorist action, civil commotion, labour disturbance, acts or
omissions of telecommunications operators, national emergency
(whether in fact or in law), martial law, fire, flood, cyclone,
earthquake, landslide or explosion affecting or referable to a party’s
obligations under this Agreement.
Nothing in this Agreement operates to exclude liability for death,
personal injury or fraud.
7.
7.1
TERMINATION
Either party may at any time terminate this Agreement by written
notice to the other if:
7.1.1 the other commits a breach of this Agreement and fails to
rectify it after 30 days’ written notice of such breach; or
7.1.2 the other goes into liquidation, becomes insolvent, enters
into a voluntary arrangement with its creditors or has a
receiver or administrator appointed.
8.
8.1
ASSIGNMENT AND SUB-CONTRACTING
Neither party may assign this Agreement to a third party without
the written consent of the other, not to be unreasonably withheld
or delayed.
Company may sub-contract various activities related to the Services
provided under this Agreement, provided that it notifies Client of
its intention to do so, and that it shall acquire from all subcontractors all necessary rights to enable it to comply with this
Agreement. Company shall be responsible for the acts and
omissions of its sub-contractors as though they are its own.
8.2
9.
GENERAL
9.1
Notices. Any formal notice given under or in connection with this
Agreement shall be in writing and shall be delivered by hand or by
pre-paid first-class post or other next working day delivery service
at its registered office (if a company) or its principal place of
business (in any other case). Such notice shall be deemed to have
been received (a) if delivered by hand, on signature of a delivery
receipt or at the time the notice is left at the proper address; or (b)
if sent by pre-paid first-class post or other next working day delivery
service, at 9.00 am on the second working day after posting or at
the time recorded by the delivery service.
9.2 Entire Agreement. This Agreement constitutes the entire
agreement between the parties and supersedes and extinguishes
all previous agreements, promises, assurances, warranties,
representations and understandings between them, whether
written or oral, relating to its subject matter.
Each party
acknowledges that in entering into this Agreement it does not rely
on, and shall have no remedies in respect of, any statement,
representation, assurance or warranty (whether made innocently
or negligently) that is not set out in this Agreement.
9.3 Variations. Changes to the terms of this Agreement or the Services
to be provided must be agreed in writing.
9.4 Governing law. This Agreement will be governed by English law and
the parties submit to the exclusive jurisdiction of the English courts.
9.5 Authority. Where applicable a person signing this Agreement on
behalf a company or other organisation represents that he/she is
authorised by that company or organisation to do so on its behalf.
9.6 No partnership/agency. Nothing in this Agreement shall create a
partnership or the relationship of principal and agent between the
parties. Neither party shall have the authority to enter into any
agreement on the other’s behalf.
9.7 No employment. At all times during the term of this Agreement
Company shall be an independent contractor and its employees
shall not be deemed to be employees of Client.
9.8 Third parties. Nothing otherwise in this Agreement confers or
purports to confer on any third party any benefit or any right to
enforce any term of this Agreement.
9.9 Severance. If any provision or part-provision of this Agreement is
or becomes invalid, illegal or unenforceable, it shall be deemed
modified to the minimum extent necessary to make it valid, legal
and enforceable. If such modification is not possible, the relevant
provision or part-provision shall be deemed deleted. Any
modification to or deletion of a provision or part-provision under
this clause shall not affect the validity and enforceability of the rest
of this Agreement.
9.10 Waiver. The delay, failure or omission of a party to insist on the
proper performance by the other of any provision of this
Agreement shall not be construed as a waiver of that party’s right
to future performance of such provision and the other party’s
obligations in respect of future performance shall continue in full
force and effect.
9.11 Headings. Headings are included in this Agreement for ease of
reference only and shall not affect the interpretation or
construction of this Agreement.
9.12 Counterparts. This Agreement may be executed in any number of
counterparts, each of which, when executed shall be an original,
and all the counterparts together shall constitute one and the same
instrument.
.