1. Definitions
‘APPOINTMENT’ means the written acceptance
of the Proposal by the Client for iMarketing to
supply the DELIVERABLES.
‘CHARGES’ means the charges shown in
the Proposal as amended from time to time in accordance
with paragraphs 2.1 and 2.2 of these Conditions
‘CLIENT’ means the person named on the
Proposal for whom iMarketing has agreed to provide
DELIVERABLES in accordance with these Terms and
Conditions
‘CLIENT DATA’ means any Documents and
any data or other information provided by the Client
relating to the Internet Services
‘CONTRACT’ means the contract for the
provision of the DELIVERABLES described in these
Terms and Conditions and the Proposal.
‘DELIVERABLES’ means the completed Internet
products and services as specified in the proposal.
‘DELIVERY DATE(S)’ means the delivery
date(s) referred to in the Proposal
‘DOCUMENTS’ includes all forms of text,
graphics, audio and visual information presented
as hard copy, disk, tape, data files or other electronic
media.
‘FORCE MAJEURE’ means the following:
(i) Acts of God. (ii) Outbreaks of hostilities,
riot, civil disturbances, acts of terrorism. (iii)
The act of any government or authority (including
refusal or revocation of any license or consent).
(iv) Fire, explosion, flood, fog or bad weather.
(v) Power failure, failure of telecommunication
lines, failure breakdown of plant, machinery or
vehicles. (vi) Default of suppliers or sub-contractors.
(vii) Theft, malicious damage, strike, lock-out,
or industrial action of any kind. (viii) Any cause
or circumstance whatsoever beyond iMarketing’s
reasonable control.
‘iMarketing’ means iMarketing Limited
(Company Number: 4290113) whose registered office
is at Unit 3, Alder Carr Farm, Creeting St Mary,
Ipswich, IP6 8LX and its employees, agents or sub-contractors
(as appropriate).
‘ iMarketing DATA’ means the Proposal
together with any Documents, data or other information
provided by iMarketing relating to the DELIVERABLES.
‘INTERNET PRODUCTS AND SERVICES’ means
the design, development, testing and deployment
of Internet Services and any other services to be
provided by iMarketing to the Client and referred
to in the Proposal together with any goods specified
in the Proposal.
‘PROPOSAL’ means the proposal to which
these Conditions are appended together with any
supporting Documents delivered to the Client prior
to APPOINTMENT.
2. Supply of the Internet Products and
Services
2.1 iMarketing and the Client must agree any changes
or additions to the Proposal or these Conditions
in writing.
2.2 On APPOINTMENT iMarketing will supply and
the Client will purchase the Internet Products
and Services in accordance with the Proposal and
subject to these terms and conditions.
2.3 The Client shall at its own expense supply
iMarketing with all necessary documents, instructions
and all necessary data or other information relating
to the Internet Products and Services within sufficient
time to enable iMarketing to meet its obligations
under the Contract.
2.4 The Client shall ensure the accuracy and completeness
of all Client DATA and the Client shall indemnify
iMarketing against loss, damage, costs or expenses
incurred as a direct or indirect result of any
inaccurate or incomplete Client DATA.
2.5 The Client shall insure against the accidental
loss, however caused, of all Client DATA. All
Client DATA shall be at the sole risk of the Client.
2.6 Additional information about the Internet
Products and Services and advice or recommendations
about their provision or use that are not included
in the Proposal may be made available by iMarketing
on written request.
2.7 iMarketing may correct any typographical or
other errors or omission in any Document relating
to the provision of the Internet Products and
Services without any liability to the Client.
2.8 iMarketing may at any time without notifying
the Client make any changes to the Internet Products
and Services which are necessary to comply with
any applicable statutory requirements or which
do not materially affect the nature or quality
of the Internet Products and Services.
2.9 The Delivery Date is for the guidance for
the Client only and represents the best estimate
by iMarketing of the data upon which iMarketing
can deliver the Internet Products and Services
to the Client. Notwithstanding that iMarketing
may have delayed or failed to deliver the DELIVERABLES
on or before the Delivery Date the Client shall
be bound to accept delivery and pay for the Internet
Products and Services in full provided that the
provision or delivery of the same shall be rendered
within one month of the Delivery Date. iMarketing
shall not be liable for any loss or damage whatever
due to failure by iMarketing to deliver the DELIVERABLES
(or any part of them) on or before the Delivery
Date.
2.10 iMarketing shall be entitled to deliver the
DELIVERABLES to the Client before the Delivery
Date and the Client shall accept the tendering
thereof on the date tendered or completed.
2.11 If performance of iMarketing's obligations
under the Contract is delayed or hindered by circumstances
outside its control amounting to force majeure
as defined in these Conditions, the following
shall apply:
2.11.1 iMarketing will as soon as reasonably practical
give the Client notice of the reasons for the
delay or hindrance. However, failure to give such
notice will not prevent iMarketing relying on
the remaining provisions of this clause, and iMarketing
will incur no liability for failure to give such
notice.
2.11.2 iMarketing’s duty to perform shall
be suspended for as long as the circumstances
amounting to force majeure continue, and at the
same time the performance of iMarketing’s
obligations shall be extended by a period equal
to the duration of those circumstances.
2.12 Where iMarketing are asked to defer the provision
of Internet Products and Services, iMarketing
shall be entitled to deliver an invoice to the
Client and to receive payment of such account
in respect of all Internet Products and Services
completed or supplied under the Contract to the
date of the deferment and/or payment for any materials
or services purchased by iMarketing in connection
with the Contract.
3. Charges
3.1 Subject to any special terms agreed, the Client
shall pay any additional sums that are agreed
between iMarketing and the Client for the provision
of the Internet Products and Services or other
items which, in iMarketing’s sole discretion,
are required as a result of the Client’s
instructions or lack of instructions, the inaccuracy
of any client DATA or any other cause attributable
to the Client.
3.2 Where iMarketing incurs additional costs arising
from changes in the prices charged by its suppliers
and which are brought into effect after the date
of the Proposal iMarketing shall be entitle to
vary its Charges accordingly by written notice
to the Client.
3.3 All Charges are exclusive of any Value Added
Tax for which the Client shall be additionally
liable at the applicable rate from time to time.
3.4 On appointment to provide the agree Internet
Products and Services, iMarketing shall request
a deposit of 50% of the quoted value of the proposal.
Work will only begin when the deposit has been
received unless otherwise agreed with the client.
3.5 iMarketing shall be entitled to deliver interim
invoices to the Client following the end of each
month in which the Internet Products and Services
are provided or supplied or at other times agreed
with the Client.
3.6 The Charges and any additional sums payable
shall be paid by the Client (together with any
applicable Value Added Tax, and without any set-off
or other deduction) within 21 days of the iMarketing
invoice.
3.7 If payment is not made within the due date,
iMarketing shall be entitled, without limiting
any other rights it may have, to charge interest
on the outstanding amount (both before and after
any judgment) at the rate of 3% above the base
rate from time to time of Lloyds TSB Bank plc
from the due date until the outstanding amount
is paid in full.
4. Rights and ownership relating to iMarketing
DATA and Client DATA
4.1 The property and any copyright or other intellectual
property rights in:
4.1.1 Any Client DATA shall belong to the Client.
4.1.2 Any iMarketing DATA shall, unless agreed
in writing between the Client and iMarketing,
belong to iMarketing PROVIDED THAT the Client
shall upon payment of all monies due to iMarketing
be licensed to use the iMarketing DATA for the
purposes set out in the proposal.
4.1.3 The Proposal together with any Documents
shown or handed to the Client at the time that
iMarketing present the Proposal to the Client
shall belong to iMarketing and shall not be used,
copied or disclosed to a third party or otherwise
dealt with without the written consent of iMarketing.
4.2 Any Client DATA or other intellectual property
by the Client which is so designated by the Client
and any iMarketing DATA shall be kept confidential
by iMarketing and all iMarketing DATA or other
information provided by iMarketing which is so
designated by iMarketing shall be kept confidential
by the Client; but the foregoing shall not apply
to any Documents, data or other information which
are public knowledge at the time when they are
so provided by either party, and shall cease to
apply if at any future time they become public
knowledge through no fault of the other party.
4.3 The Client warrants that the Client DATA and
its use by iMarketing for the purpose of providing
DELIVERABLES will not infringe the copyright or
other rights of any third party, and the Client
shall indemnify iMarketing against loss, damage,
costs, expenses or other claims arising from such
infringement.
4.4 Subject to paragraph 4.3 iMarketing warrants
that any Client DATA and its use by Client in
accordance with Paragraph 4.1.2 will not infringe
the copyright or other rights of any third party,
and iMarketing shall indemnify the Client against
loss, damage, costs, expenses or other claims
arising from such infringement.
5. Warranties and Liability
5.1 iMarketing warrants to the Client that the
Internet Products and Services will be provided
using reasonable care and skill, and as far as
reasonably possible, in accordance with the Proposal,
provides and at the intervals and within the times
specified therein. Where the Proposal provides
the supply of any goods or services by a third
party, iMarketing does not give a warranty, guarantee
or other term as to their quality, fitness for
purpose or otherwise, but shall, where possible,
assign to the Client the benefit of any warranty,
guarantee or indemnity given by the person supplying
the goods to iMarketing.
5.2 iMarketing shall have no liability to the
Client for any loss, damage, costs, expenses or
other claims for compensation arising from any
Client DATA or instructions supplied by the Client
which are incomplete, incorrect, inaccurate, illegible,
out of sequence or in the wrong form, or arising
from there late arrival or non-arrival, or any
other fault of the Client.
5.3 Except in respect of death or personal injury
caused by iMarketing negligence, or as expressly
provided in these Conditions, iMarketing shall
not be liable to the Client by reason of any representation
(unless fraudulent), or any implied warranty,
condition or other term, or any duty at common
law, or under the express terms of the Contract,
for any loss of profit or any indirect special
or consequential loss, damage, costs, expenses
or other claims (whether caused by the negligence
of iMarketing, its servants or agents or otherwise)
which arise out of or in connection with the provision
of the Internet Products and Services or their
use by the Client, and the entire liability of
iMarketing under on in connection with the contract
shall not exceed the amount of the Charges, except
as expressly provided in these conditions.
6. Termination
6.1 The Client shall be entitled to terminate
the Contract at any time by giving not less than
one month’s written notice to iMarketing.
6.2 Either party may (without limiting any other
remedy) at any time terminate the Contract by
giving written notice to the other if the other
commits any breach of these Conditions and (if
capable of remedy) fails to remedy the breach
within 30 days after being required by written
notice to do so, or if the other goes into liquidation,
or (in the case of an individual or firm) becomes
bankrupt; makes a voluntary arrangement with his
or its creditors or has a receiver or administrator
appointed.
6.3 In the event that iMarketing terminates the
Contract under paragraph 6.2 above it shall have
in respect of all monies due to it from the Client
a general lien over all Client DATA and other
property in its possession belonging to the Client
and shall be entitled on the expiration of 14
days written notice to the Client or its successors
in title to dispose of the said property in such
a manner as it thinks fit and apply all the proceeds
of sale to discharge such debts.
7. General
7.1 The headings used in these Terms and Conditions
are for convenience only and shall not affect
their interpretation.
7.2 The Contract constitutes the entire agreement
between the parties, supersedes any previous agreement
or understanding and may not be varied except
in writing between the parties. All other terms
and conditions expressed or implied by statute
or otherwise, are excluded to the fullest extent
permitted by law.
7.3 Any notice required or permitted to be given
by either party to the other under these Conditions
shall be in writing address to the other party
at its registered office or principal place of
business or such other address as may be relevant
at the time have been notified pursuant to this
provision to the party giving notice.
7.4 No failure or delay by either party in exercising
any of its rights under the Contract shall be
deemed to be a waive of that right and no waiver
by either party of any breach or the Contract
by the other shall be considered as a waive of
any subsequent breach of the same or any other
provision.
7.5 If any provision of these Conditions is held
by any competent authority to be invalid or unenforceable
in whole or in part, the validity of the other
provision of these Conditions and the remainder
of the provision in question shall not be affected.
7.6 Any dispute arising under or in connection
with these Conditions or the provision of the
Internet Products and Services shall be referred
to arbitration by a single arbitrator appointed
by agreement or (in default) nominated on the
application of either party by the President of
the London Chamber of Commerce in accordance with
the Arbitration Act 1996.
7.7 English law shall apply to the Contract, and
the parties agree to submit to the non-exclusive
jurisdiction of the English Courts.
If you would like further details on any of the
above, please email info@imarketing.co.uk
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