Terms & Conditions of Business

Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.

Charges: the charges payable by the Client for the supply of the Services as set out in the Order Form and Clause 5.

Client IPR: all Intellectual Property Rights in all content and materials supplied by the Client to the Company in connection with the provision of Services, including without limitation, all Intellectual Property rights in the Client’s website, any photographs, images, renderings, text, logos, trade marks, trade names, designs or other media supplied by the Client to the Company for the provision of Services under or in connection with the Contract

Client Requirements: means the materials and/or information which is required from the Client in order for the Company to provide the Services, as set out in the Order Form, or as subsequently becomes necessary from time to time in the course of providing the Services.

Client Default: has the meaning given to it in Clause 4.2.

Company: Ikaroa (trading address: Emirates Towers, Sheikh Zayed Road, Dubai, UAE, 00000).

Company IPR: means the Intellectual Property Rights (excluding Client IPR) in all content and materials supplied by the Company to the Client under the Contract as deliverables in connection with the provision of Services.

Company Materials: all materials, equipment, documents and other property of the Company.

Company Website: the website/s available from time to time at the URLs [ikaroa.com]

Contract: the contract between the Company and the Client for the supply of Services in accordance with the Order Form and these Terms and Conditions.

Control: as defined in section 1124 of the Corporation Tax Act 2010, and the expression ‘Change of Control’ shall be construed accordingly.

Data controller: means a data controller or controller (as the case may be) as defined by the Data Protection Legislation (and ‘controller’ shall be construed accordingly).

Data Processing Agreement: means the agreement to process personal data at Clause 37 to this agreement.

Data processor: means a data processor or processor (as the case may be) as defined by the Data Protection Legislation (and ‘processor’ shall be construed accordingly).

Data Protection Legislation:  means the GDPR for as long as it is directly applicable in the United Kingdom and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the United Kingdom, and then any successor legislation to the GDPR or the Data Protection Act 2018.

Data Subject: means a data subject as defined by the Data Protection Legislation.

Deliverables: means the specifications or deliverable objectives of the Services specified in the Order Form.

Digital View: each instance where an internet user views or submits a request to view the relevant online content.  In the case of an online article, website page or other digital content, this means each visit to the relevant webpage URL containing the relevant content, or each trackable click of a weblink which hyperlinks the relevant webpage URL.  In the case of Video, this means each instance of a request to view the Video.

Force Majeure Event: a cause, event or circumstances outside of a party’s control including, without limitation, acts of God, acts of government or other competent regulatory authority, war or national emergency, riots, civil commotion, fire, explosion, flood, lightning, extremely severe weather, epidemic, lock-outs, strikes and other industrial disputes (in each case, whether or not relating to that party’s workforce) or any other event that renders performance of the Service(s) impracticable, illegal or impossible.

GDPR: Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation).

Heightened Cybersecurity Requirements: any laws, regulations, codes, guidance from regulatory and advisory bodies (whether mandatory or not), international and national standards, industry schemes and sanctions, which are applicable to the Client (but not the Company) relating to security of network and information systems and security breach and incident reporting requirements, which may include the Cybersecurity Directive ((EU) 2016/1148) and Commission Implementing Regulation ((EU) 2018/151), all as amended or updated from time to time.

Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist now or in the future in any part of the world.

Materials: the content provided to the Company by the Client from time to time for incorporation in the Site.

Order: the Client’s order for Services as set out in the Order Form.

Order Details: the Client’s information and the details of the Client’s Order for Services, as set out in the Order Form.

Order Form: the document entitled ‘Order Form’ containing the Order Details and Service Agreement, and which forms a part of the Contract.

Payment Terms: the terms of payment for the Services applicable to the Client in accordance with Clause 5, and in accordance with any Specific Terms depending upon the Services provided.

Personal Data: has the meaning given to it in Article 4(1) of the GDPR.

Services:  the services, including the Deliverables, supplied by the Company to the Client as set out in the Order Form.

Site: the website of the Client in connection with the Services to be provided by the Company.

Specification: the description or specification of the Services in the Order Form.

Terms and Conditions: these terms and conditions as amended from time to time in accordance with Clause 18.

VAT: value added tax chargeable under the Value Added Tax Act 1994 or any equivalent or similar replacement sales tax in force in the UK from time to time.

Video: the filmed interview or project which has been commissioned by the Client to which the Contract pertains (and ‘Videos’ shall be construed accordingly).

Vulnerability: a weakness in the computational logic (for example, code) found in software and hardware components that when exploited, results in a negative impact to the confidentiality, integrity, or availability, and the term Vulnerabilities shall be interpreted accordingly.

Work Product: those items (if any) set out in Order Form to be delivered in tangible form by the Company in its performance of the Services (and ‘Work Products’ shall be construed accordingly). For the avoidance of doubt, any transcript or questionnaire, report, video, presentation, design, artwork, documentation and any other deliverable provided by the Company in whichever form to the Client under the Contract shall be deemed to constitute a Work Product.

1.1 Interpretation:

(a)          A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.

(b)          Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

(c)          A reference to writing or written includes email but not fax.

2.0 BASIS OF CONTRACT

2.1 This Contract is made up of the Order Form (comprising the Order Details and Services Agreement) and these Terms and Conditions (comprising the General Terms and the Specific Terms).  The content of any Proposal sent by the Company shall not constitute a part of the Contract.

2.2 Hierarchy of terms. In the event of any conflict of terms between the aforementioned documents:

(a)          The terms of the Order Form shall supersede the terms of these Terms and Conditions; and

(b)          Within these Terms and Conditions, the Specific Terms shall supersede the General Terms. 

2.3 General Terms. The General Terms apply to all Services provided by the Company.

2.4 Specific terms.  The Specific Terms applicable to the Contract shall be only those which relate to the specific Services specified on the Order Form.

2.5 Any examples, samples, drawings, descriptive matter or advertising issued by the Company, and any descriptions or illustrations contained in the Company’s proposals, catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.

2.6 The Order Form and these Terms and Conditions apply to the Contract to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

3.0 SUPPLY OF SERVICES

3.1 The Company shall supply the Services to the Client in accordance with the Order Form in all material respects.

3.2 The Company shall use all reasonable endeavours to meet any performance dates for the Services specified in the Order Form, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.

3.3 The Company reserves the right to amend the Order Form if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and the Company shall notify the Client in any such event.

3.4 The Company warrants to the Client that the Services will be provided using reasonable care and skill.

3.5 Service targets. The Client hereby acknowledges that where the Order Form specifies a fixed number of deliverables from any Service, or any particular parameter as an outcome from any Service, that such numbers or parameters shall be deemed to be targets or estimates, and are non-binding unless expressed to the contrary.

3.6 In the event that the Services ordered by the Client involve or include the hosting, upload, publication, distribution or other presentation of content to be performed by any third party, the Company shall have no liability to the Client in respect of any content which such third party refuses to upload, host, publish, distribute or otherwise present.  In the event of such refusal by a third party, the Company shall use reasonable endeavours to find a suitable alternative to the refusing third party.

4.0 CLIENT’S OBLIGATIONS

4.1 The Client shall:

(a)          ensure that the terms of the Order and any other information it provides in the Order Form are complete and accurate;

(b)          co-operate with the Company in all matters relating to the Services;

(c)          provide the Company with such information and materials as the Company may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;

(d)          obtain and maintain all necessary licences, permissions and consents which may be required of the Client for the Services before the date on which the Services are to start;

(e)          comply with all applicable laws; and

(f)          comply with any additional obligations as set out in the Order Form.

4.2 If the Company’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Client or failure by the Client to perform any relevant obligation (Client Default):

(a)          without limiting or affecting any other right or remedy available to it, the Company shall have the right to suspend performance of the Services until the Client remedies the Client Default, and to rely on the Client Default to relieve it from the performance of any of its obligations in each case to the extent the Client Default prevents or delays the Company’s performance of any of its obligations;

(b)          the Company shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from the Company’s failure or delay to perform any of its obligations as set out in this Clause 4.2; and

(c)          the Client shall reimburse the Company on written demand for any costs or losses sustained or incurred by the Company arising directly or indirectly from the Client Default.

4.3 The Client shall provide any Client Requirements to the Company in a timely manner in order to enable the Company to provide the Services, including, without limitation, all materials, assets, information and/or documentation of the Client which the Client has agreed to provide or which subsequently becomes necessary to provide in order to allow the Company to provide the Services.  

4.4 In the event that the Client should fail to supply the Client Requirements at the time specified or in a timely manner as set out in the above clause 4.3, the Company shall not be held responsible for any consequences of such delays, and the Clients hereby holds harmless the Company from and against all claims, liabilities, losses, costs or expenses arising out of or in connection with such delays.

5.0 CHARGES AND GENERAL PAYMENT TERMS

5.1 The Charges for the Services are as set out in the Order Form.

5.2 Unless otherwise stated in the Contract, accounts and invoices are strictly net of agency commission and are subject to full settlement within twenty-one (21) Business Days of signing of the Contract, and time for payment shall be of essence to the Contract.

5.3 Unless specified to the contrary on the Order Form, payments for Services shall be made as follows:

(a)          Sixty percent (60%) of the total payable for Services under the Order form shall fall due for payment on the date of execution of the Contract;

(b)          Twenty percent (20%) of the total payable for Services under the Order form shall fall due upon the completion of prescribed milestones under the Order Form; and

(c)          The remaining balance shall fall due upon completion of Services.

5.4 Unless indicated otherwise in the Contract, all amounts payable by the Client under the Contract are exclusive of any amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Company to the Client, the Client shall, on receipt of a valid VAT invoice from the Company, pay to the Company such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of Services.

5.5 Payments from the Client to the Company must be made by direct bank transfer.  In special circumstances, the Company may accept payment by other means, such as cheque or credit/debit card, with the express prior agreement of the Company.

5.6 Any charges incurred by the Company when processing payments by credit/debit card or other accepted means shall be payable by the Client in addition to the fees for the Services.

5.7 Where applicable, it is a condition of the Company agreeing to accept payment by way of instalments that each payment will be met upon first presentation. Any failure will result in the balance of all monies outstanding as at that date, becoming due and payable immediately.  For the avoidance of doubt, the Company shall only be required to accept payment by instalments where this is specified in the Order Form.

5.8 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

5.9 Where any Service is itemized (i.e. set out in a separate row) in the Order Form, it shall constitute a separate and distinguishable Service from any other Service set out in the Order Form (or elsewhere) and the amount payable in respect of that Service shall be set out next to that Service in the Order Form. The amount payable in respect of a particular Service shall be payable in its own right and regardless of whether any other Services in the Order Form are performed or unperformed and irrespective as to the relation of any of the Services in the Order Form to one another.

5.10 Late payment. Overdue accounts and invoices shall carry statutory interest at the rate of 8% per annum calculated on a day to day basis from the date the account becomes overdue until the date of actual payment of the overdue sum, whether before or after judgment.

5.11 Non-payment. All accounts passed to debt collection, without exception, will be subject to a surcharge of fifteen per cent (15%) of the unpaid amount (plus VAT) to cover our costs in recovery. These accounts will also be subject to any legal costs incurred in obtaining settlement.

5.12 In the event of non-payment or non-compliance with the payment terms in the Contract, the Client shall be responsible for all legal, collection and debt recovery fees and costs incurred to the Company in enforcing its legal rights, whether contractual or non-contractual, against the Client.

6.0 DATA PROTECTION AND DATA PROCESSING

6.1 The Company and the Client acknowledge that for the purposes of the Data Protection Legislation, that the Client shall be the data controller and the Company shall be the data processor.

6.2 Subject to Clause 6.6, each party shall process Personal Data supplied to it by the other party in connection with the Services, only in so far as it is necessary to process such Personal Data in connection with the provision of the Services, unless the parties agree otherwise in writing. 

6.3 Each party shall take reasonable steps to ensure the reliability of all of their respective employees who have access to the Personal Data.

6.4 Each party warrants to the to the other that it will process the Personal Data in compliance with all applicable laws, enactments, regulations, orders, standards and other similar instruments.

6.5 Each party warrants to the other, having regard to the state of technological development and the cost of implementing any measures, that it shall:

(a)          take appropriate technical measures and organisational measures against the unauthorised or unlawful processing of Personal Data and against the accidental loss or destruction of, or damage to, Personal Data to ensure a level of security appropriate to:

          (i) the harm that might result from such unauthorised or unlawful processing or accidental loss, destruction or damage; and

          (ii) the nature of the data to be protected; and 

(b)          take reasonable steps to ensure compliance with those measures.

6.6 Any Personal Data the Client provides to the Company shall be held by the Company on a database. The Client agrees that the Company may use and share such Personal Data within its corporate group insofar as is permitted by law.

6.7 The Client agrees to indemnify and keep indemnified and defend at its own expense the Company against all costs, claims, damages or expenses incurred by the Company or for which the Company may become liable due to any failure by the Client or its employees or agents to comply with any of its obligations under this Clause 6.

7.0 INTELLECTUAL PROPERTY RIGHTS

7.1 Client IPR.  The Client hereby represents and warrants that all Intellectual Property Rights in all content and materials supplied by the Client in connection with the provision of Services, including without limitation, all Intellectual Property rights in the Client’s website, any photographs, images, renderings, text, logos, trade marks, trade names, designs or other media supplied by the Client to the Company for the provision of Services under the Contract is not infringing of any Intellectual Property Rights of any third party and is either:

(a)          owned by the Client; or 

(b)          licensed to the Client on licence terms expressly permitting the commercial exploitation of such Intellectual Property Rights by the Client including in conjunction with its third party contractors in the manner envisioned by the Contract and required for the provision of Services by the Company to the Client.

7.2 Company IPR.  The Company hereby represents and warrants that the Intellectual Property Rights in the content of the Services provided by the Company to the Client (excluding the Client IPR) are owned by the Company or licensed to the Company on terms permitting their use as envisioned by the Contract.

7.3 Licence of Intellectual Property Rights.  The Company hereby grants to the Client a single, revocable, non-transferrable, worldwide, royalty free licence to use the Company IPR in accordance with the Contract.

7.4 Mutual Indemnity.  The parties hereby undertake to hold harmless and indemnify each other from and against any and all claims, liabilities, damages, costs or expenses suffered or incurred by the non-defaulting party arising out of, in connection with or relating to any breach by the other party of the terms of this clause 7.  This clause 7.4 shall survive termination of the agreement, howsoever terminated.

8.0 USE OF THE COMPANY’S NAME 

8.1 Where the Client wishes to use the Company’s name in any marketing materials of the Client in any manner not expressly authorised by the Company, the Client must obtain the Company’s prior written consent.

9.0 WARRANTIES

9.1 Each party warrants to the other party that:

(a)          it has all requisite power and authority to enter into, and carry out its obligations under the Contract;

(b)          it has obtained all consents, permissions and licenses necessary to carry out its obligations under the Contract;

(c)          it owns or has the right to provide, under valid and enforceable agreements, all software and materials under the Contract to the Client or the Company (as the case may be) under the Contract;

(d)          the receipt of the Services, Work Products and any materials by the Client shall not infringe the Intellectual Property Rights of any third party;

(e)          the receipt of any materials by the Company from the Client shall not infringe the Intellectual Property Rights of any third party;

(f)          there are no actions, suits or proceedings or regulatory investigations pending or, to its knowledge, threatened against or affecting it before any court or administrative body or arbitration tribunal that might affect its ability to meet and carry out its obligations under the Contract;

(g)          it shall comply with all applicable laws and regulations, including data protection laws and anti-corruption and bribery laws (including the Bribery Act 2010) (the ‘Requirements’).

9.2 The Company warrants to the Client that it shall:

(a)          employ or engage staff who are suitably qualified and trained to provide the Services in accordance with the Contract;

(b)          perform the Services in a timely and workmanlike manner using the skill and care of a diligent Company and at all times in accordance with good industry practice.

9.3 The Company and the Client shall have and shall maintain in place throughout the term of the Contract their own policies and procedures to ensure compliance with the Requirements and shall enforce them where appropriate.

9.4 In the event of any breach of any of the warranties set out in this Clause 9, without prejudice to any other right’s either party may have, either party may require the other at its own expense to remedy the breach forthwith.

9.5 The person signing the Contract warrants to the Company that they are duly authorised to enter into a binding contract on behalf of themselves or any other party they represent that they are an employee, officer, director or agent of and acknowledge that the Company has relied upon this representation made by the signatory to the Contract that the person signing is so duly authorised.

10. CONFIDENTIALITY AND SAFEGUARDING OF DATA

10.1 All information given by one party to the other party or otherwise obtained by one party relating to the business or operations of the other party, or any person, firm or company associated with the other party shall be treated by the recipient party as confidential and the recipient party shall not disclose such information to third parties without the other party’s prior written consent.

10.2 The provisions of Clause 10.1 shall not apply to confidential information which: 

(a)          is in or enters the public domain other than by breach of Clause 10.1;

(b)          is obtained from a third party lawfully;

(c)          is or has been independently generated by the Company; or

(d)          is properly disclosed pursuant to a statutory obligation, the order of a court of competent jurisdiction or that of a competent regulated body.

10.3 Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.

10.4 The Client shall be responsible to the Company for maintaining the confidentiality of confidential information belonging to the Company.

10.5 All records, documents and other items containing such confidential information and all copies and extracts made or acquired by the Company from the Client shall remain the property of the Client and be returned to the Client or destroyed on request within fourteen (14) Business Days from the date of such request and on termination of the Contract.

10.6 Client data is and shall remain the property of the Client and the Company shall not use such data for any purpose other than where strictly necessary for the provision of Services in accordance with the Contract.

10.7 Each party shall comply with its obligations under any relevant data protection legislation and neither party shall do any act that puts the other party in breach of such legislation.

10.8 The foregoing obligations as to confidentiality shall apply retrospectively, from the point of first contact between the parties regarding the Services, and shall remain in full force and effect notwithstanding any termination or expiry of the Contract.

11. LIMITATION OF LIABILITY

11.1 The Client warrants and confirms that all content provided to the Company for publication complies with all relevant laws and regulations including, for example and without limitation, the Obscene Publications Act 1959, the Indecent Displays Act 1981, the Defamation Act 1996 and the Defamation Act 2013. The Company warrants and confirms that, subject to the preceding sentence, all Work Product provided to the Client for publication complies and shall comply with all relevant statutes and regulations including, for example and without limitation, the Obscene Publications Act 1959, the Indecent Displays Act 1981, the Defamation Act 1996 and the Defamation Act 2013.

11.2 Each party shall indemnify and hold harmless the other party and each of its partners, directors, officers, employees, consultants and agents from and against any demands, losses, damages, costs (including legal costs), claims, proceedings, expenses and liabilities (including legal fees and disbursements) they suffer or incur or are awarded against them by a court of competent jurisdiction as a result of or in connection with any Intellectual Property Rights infringement claim determined to be a result of any act or omission of that party.

11.3 The Client shall indemnify and hold harmless the Company and each of its partners, directors, officers, employees, consultants and agents from and against any and all third party claims, demands, damages and expenses (including reasonable legal fees) arising out of or in connection with the Contract to the extent that they are caused by any breach of any anti-corruption and bribery laws, data protection laws, negligent act or omission or wilful misconduct of the Client, its employees, subcontractors or agents during the fulfilment of the Client’s obligations and/or provision of content by the Client under the Contract.

11.4 Nothing in the Contract shall limit or exclude the liability of either party for death or personal injury resulting from negligence, fraud or fraudulent misrepresentation, in relation to any indemnity given hereunder or in respect of liability arising from a breach of confidence or data protection obligations.

11.5 The Company shall not be liable to the Client in connection with the Contract, whether in contract, tort (including negligence), under statute or otherwise, for any secondary or indirect losses, including but not limited to:

(a)          loss of profits;

(b)          loss of sales or business;

(c)          loss of agreements or contracts;

(d)          loss of anticipated savings; 

(e)          loss of use or corruption of software, data or information;

(f)          loss of or damage to goodwill; or

(g)          any indirect or consequential loss of any kind.

11.6 Subject to the limitations on liability contained in this Clause 11, in the event that either party is liable to the other for any reason whatsoever, including without limitation, in contract, in tort (including negligence), under statute or otherwise, the liability of that party shall be limited to an amount equal to the total amount payable for the Services by the Client in addition to any other monies due from the Client to the Company hereunder.

11.7 The terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.

11.8 In the event that the Company is unable for any reason to provide any of the Services set out on the Order Form, the Company’s aggregate liability to the Client in such event shall be limited to the total price of only the affected Services as set out on the Order Form, itemized in respect of each affected Service.  The Company shall have no liability to the Client in respect of any other Services ordered by the Client which were duly performed by the Company where such unaffected Services are described on the same Order Form as affected Services.

11.9 The provisions of this Clause 11 shall survive the termination or expiry of the Contract.

12. TERMINATION

12.1 The Contract is non-cancellable, except that either party may terminate the Contract with immediate effect by giving written notice to the other party if:

(a)          the other party is in material or persistent breach of the Contract and such breach is either irremediable or the breach is remediable, and the defaulting party has failed to remedy it within ten (10) Business Days of receipt of a written notice requiring it to be remedied from the non-defaulting party; or

(b) the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction.

12.2 For the purpose of Clause 12.1(a) a ‘persistent breach’ shall be considered to be three (3) or more breaches of the Contract in a three (3) month period.

12.3 Without affecting any other right or remedy available to it, the Company may terminate the Contract with immediate effect by giving written notice to the Client if:

(a)          the Client suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business;

(b)          the Client’s financial position deteriorates to such an extent that in the terminating party’s opinion, acting reasonably, the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy;

(c)          the Client fails to pay any amount due under the Contract on the due date for payment; or

(d)          there is a Change of Control of the Client.

12.4 Without affecting any other right or remedy available to it, the Company may suspend the supply of Services under the Contract or any other contract between the Company and the Client if the Client fails to pay any amount due under the Contract on the due date for payment, or the Client becomes subject to any of the events listed in Clause 12.1(a), Clause 12.3(a) and Clause 12.3(b).

13. CONSEQUENCES OF TERMINATION

13.1 On termination of the Contract:

(a)          the Client shall immediately pay to the Company any unpaid costs and fees owed to the Company and all of the Company’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Company shall submit an invoice, which shall be payable by the Client immediately on receipt; and

(b)          the Client shall return all of the Company Materials and any Deliverables set out in the Order produced by the Company for the Client which have not been fully paid for. If the Client fails to do so, then the Company may enter the Client’s premises and take possession of such Deliverables. Until the Deliverables have been returned to the Company, the Client shall be solely responsible for their safe keeping and shall not use them for any purpose not connected with the Contract.

13.2 Termination or expiry of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of expiry or termination.

13.3 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.

14. INDEMNITY

The Client shall hereby hold harmless and indemnify the Company from and against any and all claims, liabilities, losses (including all secondary losses, including without limitation loss or profits, loss of goodwill and loss of reputation), damages, costs (including professional and legal costs on the full indemnity basis) and expenses (including charges, duties and fees) arising out of, in connection with, or relating to any breach by the Client of the Contract

15. NOTICES

15.1 Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand at its registered office (if a company) or its principal place of business (in any other case), or sent by email to the address specified in the Order Form.

15.2 Any notice or other communication 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 email, at 9.00 a.m. on the next Business Day after transmission.

15.3 This Clause 15 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution

16. SEVERANCE

If any provision or part-provision of the Contract is found by a court of competent jurisdiction to be illegal, invalid, void, or unenforceable, it shall be modified to the minimum extent necessary to resolve such illegality, invalidity, or unenforceability, giving effect to the intention of the parties at the time that they made the contract. To the extent that such provision or part-provision cannot be resolved by such modification, it shall be deemed to be deleted. No modification or deletion of any provision or part-provision of the Contract shall affect the validity or enforceability of the rest of the Contract, which shall remain in full force and effect.

17. WAIVER

A waiver by a party of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy by a party provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy by that party.

18. VARIATION

The Company reserves the right to amend and update these Terms and Conditions from time to time without providing prior notice to the Client. Any such amendments and updates to these Terms and Conditions shall apply to Orders placed by the Client on or after the date of such amendment.

19. FORCE MAJEURE

19.1 Delays to Services. The parties acknowledge that the occurrence of a Force Majeure Event outside of the parties’ control may result in the performance of the Services being delayed or rendered impracticable.

19.2 Notice.  Either party may give notice in writing to the other party of the occurrence of a Force Majeure Event that it believes, acting reasonably and in good faith, is likely to inhibit or prevent the performance of any obligations of that party, but excluding any obligation of the Client to pay a sum of money for Services already commenced.  Notices must be served in writing and must:

(a)          be served as soon as reasonably practicable following the occurrence of the Force Majeure Event;

(b)          specify which of that party’s obligations it believes to be affected by the Force Majeure Event; and

(c)          how long the party anticipates the Force Majeure Event to continue.

19.3 Mitigation.  A party giving notice under the above clause 19.2 must use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.  Further to the aforesaid, both parties shall collaborate in good faith in the mitigation of such effects with a view to enabling the performance of the Services set out in this agreement as far as reasonably practicable.

19.4 Liability. Upon receipt of a notice served in accordance with the above clause 19.2, and subject to clause 19.3, the party giving notice shall not be in breach of this agreement or otherwise liable for any such failure or delay in the performance of such obligations for the duration and to the extent that the Force Majeure Event continues to prevent such party from performing its obligations.

19.5 Termination.  In the event that, following receipt of a notice served under clause 19.2, the Force Majeure event continues for a period of twelve (12) months following the date of service of the notice, either party may give notice to the other party to terminate this agreement.  

19.6 Conditions following termination by force majeure.  In the event that this agreement is terminated in accordance with the above clause 19.6:

(a)          the Client shall immediately pay any sums outstanding as Charges or other fees due to the Company for work already undertaken or costs already incurred as at the date of termination;

(b)          no further sums will thereafter be due for payment by the Client for any part of the Services not yet commenced;

(c)          neither party shall thereafter have any liability to the other party arising out of or in connection with this agreement.

19.7 Neither the occurrence of a Force Majeure Event nor termination of this agreement under this clause 19 shall result in any part of the Charges or other fees already paid to the Company being refundable, except in the case of and to the extent that no work, time or expense has been undergone in connection with the Services.

20. ASSIGNMENT, TRANSFER AND SUBCONTRACTING

20.1 The Company may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.

20.2 The Client shall not assign, transfer, mortgage charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of the Company

21. COUNTERPARTS AND ELECTRONIC SIGNATURE

21.1 The Contract may be executed in any number of counterparts, each of which when executed and delivered is an original, but all the counterparts together constitute the same document. Delivery of an executed counterpart of a signature page to the Contract by email shall be as effective as delivery of a manually executed counterpart of the Contract.

21.2 For the avoidance of doubt, the parties confirm that:

(a)          an electronic version of the Contract is deemed to be in writing; and

(b)          where the Client has used an electronic signature or digital work sharing software with the facility to click ‘agree’ to indicate its acceptance of the terms of the Contract, the parties agree that such electronic signature or step is a valid means of establishing the authenticity and integrity.

22. THIRD PARTY RIGHTS

22.1 Unless expressly stated otherwise, the Contract does not give rights to any person under the Contract (Rights of Third Parties) Act 1999 to enforce any term of the Contract.

22.2 The rights of parties to rescind or vary the Contract are not subject to the consent of any other person.

23. ENTIRE AGREEMENT

23.1 The Contract constitutes the entire agreement between the parties and supersedes all prior negotiations, representations, proposals, understandings and agreements whether written or oral relating to the subject matter of the Contract.

23.2 Each of the parties acknowledges and agrees that in entering into the Contract, it does not rely on, and shall have no remedy in respect of, any statement, representation, assurance, warranty or understanding (whether negligently or innocently made) of any person (whether party to the Contract or not) other than as expressly set out in the Contract.

23.3 Nothing in this Clause 23 shall, however, operate to limit or exclude any liability for fraud or fraudulent misrepresentation.

24. NO PARTNERSHIP OR AGENCY

Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other, or authorise either party to make or enter into any commitments for or on behalf of the other party

25. DISPUTE RESOLUTION

25.1 Any dispute arising out of or in connection with the Contract shall, in the first instance, be resolved by direct negotiation, and referred by written notice to an appointed representative of each party (each a ‘Service Manager’) who shall meet and endeavour to resolve the dispute between them within fifteen (15) Business Days of such notice.

25.2 If the Service Managers are unable to resolve the dispute, the parties shall, within five (5) Business Days of the Senior Service Managers’ Meeting refer the dispute to mediation in accordance with the model procedure of the Centre for Effective Dispute Resolution (if the dispute is being resolved in the United Kingdom) or such other mediation provider agreed by the parties. The parties agree to hold such mediation as soon as possible and in any event within one (1) month of the Service Manager’s Meeting.

26. GOVERNING LAW

26.1 Subject to Clause 25, the Contract, and any issues or disputes of whatever nature arising out of or in any way relating to it or its formation (whether such disputes are contractual or non-contractual in nature, such as claims in tort, for breach of statute or regulation, or otherwise) shall be governed by and construed in accordance with the laws of England and Wales.

27. JURISDICTION

Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation

SPECIFIC TERMS – WEBSITE DESIGN AND DEVELOPMENT SERVICE
This section applies where the Services to be provided include website design and development services. 

28. SCOPE OF THE PROJECT

The Company shall:

(a)          design, develop and deliver the Site in accordance with the Milestones set out in the Order Form; and

(b)          provide the Services

29. CLIENT RESPONSIBILITIES

29.1 The Client acknowledges that the Company’s ability to provide the Services is dependent upon the full and timely co-operation of the Client (which the Client agrees to provide), as well as the accuracy and completeness of any information and data the Client provides to the Company. Accordingly, the Client shall:

(a)          provide the Company with access to, and use of, all information, data and documentation reasonably required by the Company for the performance by the Company of its obligations under this agreement; and

29.2 The Client shall be responsible for the accuracy and completeness of the Materials on the Site.

30. DEVELOPMENT AND ACCEPTANCE OF SITE

30.1 Once the Company has completed the design and development of the Site in accordance with the Project Plan, the Company shall confirm completion of the Milestones. The procedure set out in this clause shall be repeated in respect of any further development works agreed by the parties from time to time.

30.2 The Milestones shall test compliance of the Site with the Deliverables. The form and detail of such tests shall be notified by the Company to the Client.

30.3 The Company shall notify the Client when the Milestones have been achieved and provide the results of the Milestones to the Client in writing.

30.4 If any failure to achieve the Milestones results from a defect which is caused by an act or omission of the Client, or by one of the Client’s sub-contractors or agents for whom the Company has no responsibility (Non-Company Defect), the Site shall be deemed to have achieved the Milestones notwithstanding such Non-Company Defect.  The Company shall provide assistance reasonably requested by the Client in remedying any Non-Company Defect by supplying additional services or products. The Client shall pay the Company in full for all such additional services and products at the Company’s then current fees and prices.

30.5 Acceptance of the Site shall be deemed to have taken place on the date of the occurrence of the first of any of the following events:

(a)          The parties agree that all Milestones have been met;

(b)          The Company requests a meeting to certify completion of the Milestones but the Client does not respond within seven (7) days of such request (in which case the Milestones shall be deemed to have been achieved);

(c)          the Client uses any part of the Site for any revenue-earning purposes or to provide any services to third parties other than for test purposes; or

(d)          the Client unreasonably delays the start of the relevant Milestones or any retests for a period of seven working days from the date on which the Company is ready to commence running such Milestones or retests.

31. PROJECT MANAGEMENT

31.1 Each party shall appoint a project manager who shall:

(a)          provide professional and prompt liaison with the other party; and

(b)          have the necessary expertise and authority to commit the relevant party.

31.1 The project managers shall meet at periodically until acceptance and thereafter from time to time.  

32. WARRANTIES

32.1 Each of the parties warrants to the other that it has full power and authority to enter into and perform this agreement.

32.2. The Company shall perform the Services with reasonable care and skill.

32.3 The Company warrants that the Site will perform substantially in accordance with the Deliverables for a period of three months from acceptance. If the Site does not so perform, the Company shall, for no additional charge, carry out any work necessary in order to ensure that the Site substantially complies with the Deliverables.  The warranty set out in this clause shall not apply to the extent that any failure of the Site to perform substantially in accordance with the Deliverables is caused by any Materials.

32.4 This document sets out the full extent of the Company’s obligations and liabilities in respect of the supply of the Services. All conditions, warranties or other terms concerning the Services which might otherwise be implied into this agreement or any collateral contract (whether by statute or otherwise) are hereby expressly excluded.

32.5 The Company: 

(a)          does not warrant that:

(i)          the Client’s use of the Services or the Site will be uninterrupted or error-free; or

(ii)          the Services or the Site will be free from Vulnerabilities; or

(iii)          the Services or the Site will comply with any Heightened Cybersecurity Requirements.

33. SITE CONTENT

33.1 The Client shall ensure that the Materials do not infringe any applicable laws, regulations or third party rights (including material which is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred, menacing, blasphemous or in breach of any third party Intellectual Property Rights) (Inappropriate Content).

33.2 The Client shall indemnify the Company against all damages, losses and expenses arising as a result of any action or claim that the Materials constitute Inappropriate Content.

33.3 The Company may include the statement “Designed and developed by Ikaroa” on the home page of the Site together with Ikaroa’s logo.  The Client hereby agrees that a 10% discount on the fees for the Services has been factored into their pricing in consideration for the inclusion of the aforementioned statement and logo on the Site