Terms and Conditions
Definitions and interpretation
In this Agreement the following definitions shall apply:
Agreement means these terms and conditions and the Statement of Work referencing this agreement;
Change Request means a written request for a change to the Services or Statement of Work made by the Client or ImageFast;
Client means the Client whose name and address are set out in a Statement of Work;
ImageFast means ImageFast Limited whose registered office is at 10 Cheyne Walk, Northampton, NN1 5PT
Confidential Information means information relating to the business, business strategy, initiatives and trade secrets of each party including but not limited to corporate and marketing strategy, business development and plans, sales reports and research results, business methods and processes, technical information and know-how and which is not in the public domain, including inventions, designs, programs, techniques, database systems, formulae and ideas; business contacts, lists of customers and suppliers and details of contracts with them; and any document marked "confidential" provided that Confidential Information shall not extend to information which is,
(a) Already in the public domain other than through default of the receiving party;
(b) Already in the receiving party's possession (except where received with no obligation of confidentiality or received in anticipation of the signing of this Agreement);
(c) Disclosed to the receiving party by a third party without any obligation of confidentiality; and
(d) Independently developed by the receiving party without reference to the Confidential Information;
Personnel means agents, employees or subcontractors engaged or appointed by the Client or ImageFast;
Rates means the agreed upon charging rates payable by the Client for the services, exclusive of VAT or other sales tax but including all applicable fees and payments, as specified in the relevant Statement of Work;
Services Commencement Date means the date(s) specified in an Statement of Work on which the Services to be provided shall commence;
Services means the services to be provided by ImageFast to the Client pursuant to this Agreement as set out in a Statement of Work;
Statement of Work means each Statement of Work agreed between ImageFast and the Client which expressly states that it is governed by ImageFast’s standard terms and conditions.
1.1. ImageFast agrees to provide the Services set out in the Statement of Work from the applicable Services Commencement Date. Either party may request changes to the Statement of Work by submitting a Change Request to the other party
1.2. The ImageFast Personnel shall provide the Services under the direction of the Client’s project management Personnel. The Client acknowledges and agrees that ImageFast shall have no responsibility for project management unless expressly specified to the contrary in the relevant Statement of Work.
2. Price and Payment
2.1. The Rates and expenses shall be invoiced monthly in arrears or otherwise as specified in the applicable Statement of Work.
2.2. Invoices shall be paid in full and without set off within thirty (30) days of receipt by the Client of the applicable invoice.
2.3. Fees payable under this Agreement are exclusive of VAT or other sales tax, which shall be payable by the Client at the rate and in the same manner for the time being prescribed by law against submission of a valid VAT invoice.
2.4. If any invoices become overdue, ImageFast reserves the right at its absolute discretion to suspend provision of Services. ImageFast may also terminate this Agreement and/or any extant Statement of Work by notice in writing to Client if any invoice remains unpaid for more than seven days after the date by which such invoice should have been paid.
2.5. ImageFast shall have the right to charge interest on overdue invoices at the rate of 4% per year above the base rate of Lloyds Bank, calculated from the date when payment of the invoice becomes due for payment up to and including the date of actual payment, whether before or after judgment.
3.1. Except as expressly provided in this Agreement, no warranty, condition, undertaking or term, express or implied, statutory or otherwise, as to the satisfactory quality, fitness for purpose, or ability to achieve a particular result, of the Services is given or deemed to have been given by ImageFast, and all such warranties, conditions, undertakings and terms are excluded to the fullest extent possible under the law.
4. Liability and Insurance
4.1. Subject to Clause 4.3, the maximum aggregate liability of ImageFast under, arising from or in connection with the Services, whether arising in contract, tort (including negligence) or otherwise, shall not exceed an amount equal to (a) the total Price paid by the Client for the relevant Services engagement, or (b) £10,000 (ten thousand pounds), whichever is lower.
4.2. In no event shall ImageFast be liable for any loss of profits, loss of revenue, loss of data, business interruption, loss of use, loss of contracts, loss of goodwill (whether direct or indirect), loss of management time, loss of anticipated savings; or any indirect or consequential losses of any nature whatsoever whether or not caused by or resulting from its negligence or a breach of its statutory duties or a breach of its obligations howsoever caused, and even if it is advised of the possibility of such loss.
4.3. For the avoidance of doubt, nothing in this Agreement shall be deemed to exclude, restrict or limit liability of either party (or their respective agents or sub-contractors) for death or personal injury resulting from their negligence or any liability for fraudulent misrepresentation.
4.4. Both parties accept that the limitations and exclusions set out in this Agreement are reasonable having regard to all the circumstances.
4.5. This Clause 4 shall survive the termination of this Agreement for whatever cause.
5.1. Either party may terminate this Agreement forthwith on giving notice in writing to the other party for a material breach of any term of this Agreement or if the other party becomes insolvent or files or has filed against it a petition in bankruptcy ("Cause") and in the case of a breach capable of being remedied shall have failed, within thirty (30) days after the receipt of a request in writing so to do, to remedy the breach (such request to contain a warning of the intention to terminate).
5.2. Upon termination:
5.2.1. ImageFast will cease to provide the Services; and
5.2.2. the Client shall forthwith pay all monies due in respect of the period up to the date of termination.
5.3. Any termination of this Agreement (howsoever occasioned) shall not affect any accrued rights or liabilities of either party, nor shall it affect the coming into force or the continuance in force of any provision hereof which is expressly or by implication intended to come onto or continue in force on or after such termination.
6. Confidential Information
6.1. Each party agrees to employ and to procure that its employees, agents and sub-contractors use all reasonable endeavours to ensure that all data and information relating to the other's business provided to or acquired by it, its employees, agents or sub-contractors ("Receiving Party") under this Agreement is treated as secret and confidential and will not be disclosed to any third party without the prior written consent of other party unless:
6.1.1. the information was already lawfully known or became lawfully known to the Receiving Party independently of its involvement in this Agreement, or
6.1.2. the information is or becomes within the public domain other than due to the wrongful disclosure by the Receiving Party, or
6.1.3. disclosure or use is necessary for the proper and effective performance of the Receiving Party's rights under this Agreement, or
6.1.4. disclosure is required by a person or body having a legal right, duty or obligation to have access to the information and then only in pursuance of such a legal right, duty or obligation, or
6.1.5. Disclosure is to those employees, agents or sub-contractors who need to know the information in order to perform obligations under this Agreement.
6.2. Each party to this Agreement shall promptly notify the other party if it becomes aware of any breach of confidence by any person to whom it divulges all or any part of the Confidential Information and shall give the other party all reasonable assistance in connection with any proceedings which the other party may institute against such person for breach of confidence.
6.3. Notwithstanding the foregoing, the Client shall not unreasonably refuse to agree to the following:
6.3.1. ImageFast may announce the fact that ImageFast is providing the Services and Deliverables to the Client;
6.3.2. press releases;
6.3.3. assist ImageFast with the preparation of a case study;
6.3.4. all material which has been authorised by the Client may be used by ImageFast for the purpose of marketing (including being used on the Internet);
6.3.5. to act as a reference site.
6.4. The provisions of this clause 6 shall survive the termination of this Agreement.
7. Inducement of employees
7.1. The parties shall not during the term of this Agreement and for a period of twelve (12) months after termination howsoever caused, directly or indirectly solicit or entice away or endeavour to solicit or entice away from the other party any Personnel of the other party who has been engaged in the provision of the Services or the performance of this Agreement.
7.2. In the event that either party is found to be in breach of clause 7.1 then that party shall pay the other party by way of liquidated damages an amount equal to the gross annual salary, as at the time of the breach, of the Personnel concerned. This provision shall be without prejudice to the other party's right to seek injunctive relief.
8.1. The parties undertake to comply with the provisions of the Data Protection Act 1998 and any related legislation in so far as the same relates to the provisions and obligations of this Agreement.
8.2. This Agreement shall not constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the parties other than the contractual relationship expressly provided for in this Agreement. The parties are independent contractors and nothing in this Agreement shall imply that there is a relationship of employer and employee as between the Client and any of the ImageFast Personnel.
8.3. This Agreement may not be released, discharged, supplemented, interpreted, amended, varied or modified in any manner except by an instrument in writing signed by a duly authorised officer or representative of each of the parties to this Agreement.
8.4. This Agreement is personal to the parties and neither this Agreement nor any rights, licences or obligations under it, may be assigned by either party without the prior written approval of the other party.
8.5. This Agreement supersedes all prior agreements, arrangements and undertakings between the parties and constitutes the entire agreement between the parties relating to the subject matter of this Agreement. However, the obligations of the parties under any pre-existing non-disclosure agreement shall remain in full force and effect in so far as there is no conflict with the terms of this Agreement. Without prejudice to any fraudulent representation, the parties confirm that they have not entered into this Agreement on the basis of any representation that is not expressly incorporated into this Agreement.
8.6. Neither party shall be liable in damages or have the right to terminate this Agreement for any delay or default in performing hereunder if such delay or default is caused by conditions beyond its reasonable control including, but not limited to Acts of God, Government restrictions (including the denial or cancellation of any export or other necessary license), wars, insurrections and/or any other cause beyond the reasonable control of the party whose performance is affected. If either party is prevented from the performance of its obligations for a period of ten (10) weeks pursuant to this clause 8.6, the other party may terminate this Agreement forthwith giving notice in writing to the party so prevented.
8.7. All notices under this Agreement shall be in writing and shall be given to the parties’ contact individuals as stated in the applicable Statement of Work below. Notices shall be deemed to have been duly given when delivered, if delivered by courier or other messenger (including registered mail) during normal business hours of the recipient; or when sent, if transmitted by fax or e-mail and a successful transmission report or return receipt is generated; or on the fifth business day following mailing, if mailed by national ordinary mail, postage prepaid; or on the tenth business day following mailing, if mailed by airmail, postage prepaid in each case addressed to the most recent address, e-mail address, or facsimile number notified to the other party.
8.8. If any provision of this Agreement is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision shall, to the extent required, be severed from this Agreement and rendered ineffective as far as possible without modifying the remaining provisions of this Agreement, and shall not in any way affect any other circumstances of or the validity or enforcement of this Agreement.
8.9. This Agreement shall be binding upon, and inure to the benefit of the parties and their respective successors and permitted assignees, and references to a party in this Agreement shall include its successors and permitted assignees.
8.10. No delay, neglect or forbearance on the part of either party in enforcing against the other party any term or condition of this Agreement shall either be or be deemed to be a waiver or in any way prejudice any right of that party under this Agreement. No right, power or remedy in this Agreement conferred upon or reserved for either party is exclusive of any other right, power or remedy available to that party.
8.10.1. ImageFast may perform any or all of its obligations under this Agreement through agents or sub-contractors, provided that ImageFast shall remain liable to the Client for such performance.8.10.2. The parties do not intend any term of this Agreement to be enforceable pursuant to the Contracts (Rights of Third Parties) Act 1999.
8.10.2. The parties do not intend any term of this Agreement to be enforceable pursuant to the Contracts (Rights of Third Parties) Act 1999
8.10.3. This Agreement contains the sole obligations and rights in respect of the Services. For the avoidance of doubt, both parties agree that these terms and conditions take precedence over terms and conditions provided by the Client, whether included on any purchase order or otherwise.
8.10.4. This Agreement and all matters arising from it and any dispute resolutions referred to below shall be governed by and construed in accordance with English law and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.