Indigo Ignite Ltd. standard terms and conditions for the provision of goods and services – ‘Conditions’
Indigo Ignite Ltd. provides consulting, project management and communications services to various industries and includes (but is not limited to) traditional print materials, digital media and live meetings and congresses as well as procurement of relevant third-party services and all matter analogous to the above.
1 Interpretation
These terms and conditions (‘Conditions’) along with the project description, scope and scale, budget breakdowns, cost estimates, proposals, and/or project timelines form a contract (‘Contract’), and is made between us, Indigo Ignite Limited (‘Consultancy’) and between you and your authorised consultants and agents (‘Client’), and pertains to any ideas, products, materials or services (‘Services’) we, or our authorised sub-contractors and agents, produce on your behalf.
2 Terms of appointment
These Conditions shall apply to this Project and to all Projects (‘Project(s)’) involving the Consultancy and the Client. No variation of these Conditions shall be binding unless previously agreed in writing between the authorised representatives of the Consultancy and the Client.
3 Confidentiality
Each party shall, during the term of the Contract and for a period of 1 year thereafter, treat all information relating to the other party’s business, finances, strategy, competitor intelligence, know-how, trade secrets or otherwise of a confidential nature and shall not use it, disclose it or permit it to be disclosed by any other third party other than to those of its employees who need to know in the proper performance of the contract. Such obligation shall not apply to information which the recipient can show:
(i) was in the public domain at the time of the relevant disclosure;
(ii) was known by the Consultancy prior to the relevant disclosure;
(iii) was subsequently disclosed to it by a third party who was entitled to make such disclosure; or
(iv) is required to be disclosed by any competent authority or court
4 Client information
The Client agrees to provide the Consultancy with all information, data, reports and other materials that the Consultancy may reasonably require from time to time to facilitate the performance of the Services.
The Client warrants that all information, representations, data, reports, images, references and other materials provided by the Client to the Consultancy hereunder, or prepared by the Consultancy and approved by the Client in writing:
(i) are accurate, complete and not misleading and, where necessary, are capable of objective substantiation;
(ii) comply with all applicable laws, regulations and pharmaceutical codes of practice (whether in force in England or elsewhere);
(iii) do not infringe the Rights of any third party; and
(iv) are not defamatory
Where the Client has provided such information, representations, data, reports, images, references and other materials to the Consultancy for use in the Services, the Client warrants that it is entitled to do so, and agrees to defend and to indemnify Consultancy against any and all costs, demands, expenses, losses or damages incurred by the Consultancy arising from or out of any claim based thereon.
5 Estimates
Upon receipt of a written brief, the Consultancy will confirm via a proposal document (‘Scope of Work’) the Services to be undertaken. It is the responsibility of the Client to ensure that both the brief and the Scope of Work are correct. The Consultancy accepts no responsibility for seeking clarification of such instruction, or whether the person providing the instruction has the authority to do so.
The Scope of Work will include cost estimates (‘Estimate(s)’) which encompass any consultative, strategic, creative, management, development or administrative time the Consultancy spends on Client Services; out-of-pocket expenses related to project work or travel; and third-party costs, where applicable. Estimates will be based on the original brief provided by the Client at the start of the project, and take into account the Consultancy’s experience of the business, and knowledge of the Client and their processes. Estimates will include the type of resource required to complete individual activities and stages of a project by delivery date (‘Fees’); plus materials to be used, out-of-pocket and third-party costs (including travel if required) and service charges, as applicable (‘Costs’).
All Estimates include two rounds of reasonable Client amendments unless otherwise agreed. Additional Client amendments outside of those agreed are billable at the prevailing rate at the time the amends were made. Amendments which are outside the scope of the original brief will be re-estimated on a case-by-case basis.
The Consultancy will require a purchase order or written approval of the Estimate before commencing the Services.
The Consultancy reserves the right at any time before the completion of the contract, to increase their Fees and/or Costs to reflect any increase in expenditure due to any factor beyond the Consultancy’s control, including but not limited to, a significant increase in the cost of materials or third-party Costs; any variation in exchange rates; or any delay caused by any instructions given by the Client, or failure to give the Consultancy adequate information or instructions, or any Client conduct which may hinder the timely progression of the project.
Estimated Fees and Costs shall be valid for a term of 30 days only. Unless otherwise specified, all Fees and Costs are calculated and invoiced in Great British Pounds (GBP) sterling and are exclusive of VAT at the prevailing rate. The Consultancy reserves the right to re-charge any non-recoverable EU VAT to the Client as a Cost.
6 Quality control
The Consultancy will endeavour to ensure that the Services provided comply with the Client’s instructions. The Client will check the Consultancy’s work and inform them of any error in writing within 7 days of receipt. In the absence of such notice, the Client shall be conclusively deemed to have accepted the Services.
(i) Communications Services
All documents and materials created by the Consultancy will be subjected to internal reviews, fact-checking and quality control procedures to endeavour to ensure accuracy and compliance with style guides and regulatory guidelines. The Client shall have overall responsibility for final approval, including regulatory.
(ii) Printed Material
Once the Client has accepted the Services or has been deemed to accept them in accordance with the clauses above then further expenditure in respect of the Consultancy’s Services whether on printing or otherwise shall be the liability of the Client. In the event of any error being made by the Consultancy, their liability shall be limited to the replacement or correction of the Services.
(iii) Digital Services
The Consultancy will endeavour to test interactive solutions that they have originated to a reasonable level, and within reason, to ensure that Internet and interactive sub-contractors have adequate testing procedures covering Mac and PC environments.
(iv) Live meetings and congresses
The Consultancy will endeavour to find the most suitable venues, activities, speakers and other matters that are relevant to the brief and required outcomes. Should for any reason an event be wholly or partly cancelled or postponed owing to circumstances beyond the control of the Consultancy, the Consultancy shall not be liable to refund any part of the fees paid by the client.
7 Hosting services
Clients are reminded that the Consultancy contracts out all hosting services, and therefore does not guarantee continuous service and will accept no liability for loss of service, whatever the cause.
The Client acknowledges that hosting contracts are provided with an initial agreed term commencing on the first general release/go-live date. Upon expiry of the term, the hosting service shall continue for further terms of one (1) year duration (‘Subsequent Terms’), unless either party shall give to the other at least sixty (60) days’ notice to terminate, prior to the expiry of the term or Subsequent Terms.
If the hosting term is renewed, additional remuneration shall be payable to the Consultancy and where appropriate, the Consultancy shall issue a separate Scope of Work relating to the extended hosting services. The Consultancy shall have the right to increase the hosting charges with effect from the anniversary of the commencement of the term or Subsequent Terms.
8 Domain names
The Client is reminded that the Consultancy itself is not an accredited domain name registrar and as such, registers all domain names on the Client’s behalf through a third-party supplier (the ‘Registrar’). As such, the registration of a domain name and its continued use is subject (in addition to these Conditions) to the Client’s continued compliance with the terms and conditions of the relevant Registrar including but not limited to those governing domain name disputes and domain name transfers. Client agrees to be bound by such terms and conditions, including all rules and policies. Such documents are available from the relevant Registrar or from the Consultancy upon request.
The Client acknowledges that domain name registrations are provided with an initial agreed term commencing on an agreed activation date. Upon expiry of the term, the domain name registration may be renewed for further terms (‘Subsequent Terms’) upon request. The Consultancy will endeavour to provide renewal notices to the Client, but for the avoidance of doubt, the Client shall be ultimately responsible for the renewing of a domain name, and the Consultancy cannot be held liable for the failure to renew a domain name, whether or not a notification was issued. If the domain name is renewed, additional remuneration shall be payable to the Consultancy and where appropriate, the Consultancy shall issue a separate Scope of Work relating to the extended domain name registration. The Consultancy shall have the right to increase the registration charges with effect from the anniversary of the commencement of the term or Subsequent Terms.
The Consultancy will not be held liable for the actions of the Registrar; nor will the Consultancy be liable to the Client for any costs, claims, loss of profit or loss of business suffered by the Client on account of a failure to obtain, renew or transfer in a domain name, or loss of a domain name.
9 Delivery
The Consultancy will provide the Client with an estimated timeline (‘Timing Plan’) for the progress and completion of Services, and will use reasonable endeavours to meet those timelines (on the proviso that the Client performs their obligations promptly).
Time may not be of the essence of the contract when delivery dates are agreed.
Notwithstanding the above, the Consultancy shall not be liable for any loss or damage arising from delays caused by any incident or matter beyond their reasonable control; or any indirect or consequential loss or damage suffered by the Client or as a result of any delay.
It is the Client’s responsibility to ensure that enquiries are handled in a timely fashion to enable the Consultancy to meet any agreed time scales.
10 Invoicing and payment
The Consultancy will invoice the Client in respect of its Fees on the date(s) or at the stages specified in the relevant Scope of Work. The Client will pay all invoices within 10 days of the invoice date.
Unless otherwise agreed in the relevant Scope of Work, the Consultancy will invoice the Client in respect of Third-Party Costs as follows:
(i) 50% of the estimated Third-Party Costs, as set out in the Scope of Work, prior to the commencement of the relevant project; and
(ii) 50% of the estimated Third-Party Costs, as set out in the Scope of Work, on a date approximately half way through the relevant project, as specified in the Timing Plan,
and the Client will pay such invoices within 10 days of the invoice date. Where third-party contractors or suppliers such as doctors, hotels, travel agents, printers, photographers, actors, models, film production companies, market researchers and exhibition contractors require payment in advance or at various stages of production, the Client shall pay the Consultancy’s invoices in respect of such Third-Party Costs in advance, immediately upon presentation of the Consultancy’s invoice.
As soon as reasonably practicable after completion of any project, the Consultancy shall present to the Client a statement of reconciliation between the Third-Party Costs set in the relevant Estimate and the total amounts actually invoiced by such third parties, together with an invoice for any amounts due to the Consultancy or a credit for any amounts due to the Client. The Client shall pay any such invoice within 5 days of receipt.
Following the reconciliation, the Consultancy shall be entitled to retain the benefit of any credit that would otherwise be payable if the value of the time spent by the Consultancy on the project is greater than the Fees provided for in the relevant Scope of Work, provided that any retained credit shall be apportioned so that the total expenditure by the Client for both Fees and Third-Party Costs does not exceed the total estimated expenditure specified in that Scope of Work.
If the Client fails to pay any invoice by the relevant due date, the Consultancy reserves the right to suspend the performance of its Services until it has received the overdue amount; and/or charge the Client interest on the overdue amount at the annual rate of 4% above the base rate from time to time of HSBC Bank plc. Such interest will accrue on a daily basis from the date on which payment became due up to the date on which the Consultancy receives the full outstanding amount together with all accrued interest.
Where a surcharge or penalty is levied by any supplier against the Consultancy due to late payment and this results from late payment by the Client, the Client shall immediately reimburse to the Consultancy the amount of such surcharge or penalty, together with any accrued interest charged by the supplier in respect of the overdue amount.
Each party shall pay all monies which are payable by it to the other without any right of set off, abatement or withholding in respect of monies which are due to it or alleged to be due to it from the other party.
11 Title
Title to and property in the Consultancy’s Services shall not pass until it has been paid for in full and all other sums outstanding from the Client to the Consultancy under this Project or otherwise have been paid.
For the avoidance of doubt, in the event of an unsuccessful pitch by the Consultancy, title and property shall remain with the Consultancy.
12 Termination
The Client has a right to terminate a Project with the Consultancy at any point in writing, provided that the Client has paid for the materials and services actually provided to them, or booked on their behalf, at the point at which the Project is being terminated, and that the Consultancy is fully reimbursed for cancellation costs associated with scheduling resources and procuring third-parties to meet the needs of the Project.
In the event of the Client’s bankruptcy, liquidation, winding up or the appointment of a Receiver over all or any of the Client’s assets, the Consultancy shall be entitled forthwith to cancel this Project; and all other Projects with the Client and recover the Consultancy’s accrued fees and costs.
If the Client cancels the Project, or does not proceed to complete an outstanding Project, intellectual property rights will not pass to the Client for the Project in progress. If there is a portion of the Project completed that has been paid for completely by the payments received, if agreed with the Consultancy, the intellectual property rights for that portion of the Project will pass to the Client.
13 Copyright and other intellectual property rights
(i) Consultancy Material
The rights in all Consultancy Material shall vest initially in the Consultancy unless the Consultancy has agreed otherwise in writing. Subject to the Client’s full compliance with these Conditions, the Consultancy hereby grants to the Client a non-transferable licence to use the Consultancy Material for the purpose(s), period and territories specified in the relevant Scope of Work or otherwise agreed in writing between the parties, subject to the conditions below.
The Consultancy shall obtain all such usage rights in Third-Party material as are deemed necessary by the Consultancy at the time such material is selected or obtained.
Upon completion of the Consultancy’s work under any Scope of Work, the Consultancy shall upon the Client’s request, and provided all obligations of the Client arising from this Agreement (including those relating to payment) have been met, assign to the Client such of the rights in the Consultancy Material and Third-Party material relating to the relevant Project as may be owned by the Consultancy and capable of assignment. Such assignment shall be subject to the conditions below.
(ii) Digital Media
The Consultancy (or its subcontractors) will retain all intellectual property rights in relation to the computer software and other software-related materials (including without limitation, computer/application programs, systems software, databases, computer program user documentation, generic toolkit applications, standard screen formats, source or object codes, know-how, techniques, methodologies and other intellectual property and materials) developed for the Client during the course of the Work (‘Digital Media’).
Where deliverables consist of Digital Media the following provisions of this clause shall apply:
(a) Subject to clause 13(iv), the Consultancy hereby grants to the Client a perpetual, royalty-free, non-exclusive licence to use Digital Media for the purpose(s), period and territories specified by the parties under the relevant Scope of Work.
(b) If and to the extent that any Digital Media comprises or includes Digital Media in which the rights are owned or licensed by a third party, the Consultancy shall, unless otherwise agreed in writing, procure a non-exclusive licence for the Client, on such terms as may be available from the relevant third party, to use such third party Digital Media for the purpose(s) contemplated by the parties under the relevant Project Plan.
(c) The Consultancy shall only be obliged to deliver object code versions of Digital Media to the Client.
(d) Save as expressly granted in this clause, all rights in Digital Media shall vest and remain in the Consultancy or applicable third party owner.
(iii) Sub-contractors’ Intellectual Property
The Consultancy will use all reasonable endeavours to secure the relevant intellectual property rights of its sub-contractors.
Clients are reminded that photographic ‘stock’ libraries, photographers and illustrators usually retain ownership of the original image or illustration and may demand its return undamaged, although this should not restrict the Client’s use of any illustration or image within the negotiated usage rights.
In this instance, the payments to the Consultancy specified in each Scope of Work cover only the use of the image for the immediate Client specified, in the deliverables specified, within the territory specified, and for the usage type and period specified in the relevant Scope of Work.
If the Client wishes to use images outside the scope of the usage specified in the original Scope of Work, additional remuneration shall be payable to the Consultancy and such remuneration and other terms shall be agreed between the parties in writing. Where appropriate, the Consultancy shall issue a separate Scope of Work relating to the extended usage rights.
(iv) Originality
The Consultancy warrants that its own work is original and that it will not knowingly or negligently infringe the rights or intellectual property of a third party but (unless expressly agreed to the contrary) it is under no obligation to make any enquiry in this respect and it shall have no liability to the Client in respect of any infringement or alleged infringement of intellectual property or passing off.
Notwithstanding any of the above the Consultancy shall:
(a) be able during and after the Term to use any of the Client’s work which is in the public domain for the purpose of promoting its own business; and
(b) retain all rights in any material contained in any presentation or proposal made to the Client in the event that the Client does not instruct the Consultancy to proceed with the plans set out in such presentation or proposal.
14 Consultancy’s liability
If there is an error in the content of any Project as published or distributed, or publication or distribution of a Project is delayed or does not occur as planned, the Consultancy will not be liable unless this is caused by its default or neglect.
If and to the extent that the Services involve the creation by the Consultancy of any new company name, trading name, product name, brand name and/or other name to be used by the Client in relation to its business (‘Name(s)’), the Consultancy cannot and does not guarantee that the Name(s) is/are unique or that the Client will be free to register the Name(s) without third party opposition or to use the same free of liability for infringement of third party rights. The Client is advised to take appropriate legal advice, and to undertake its own trade mark and other searches and investigations to satisfy itself that it is free to use the Name(s).
Nothing in this Agreement shall exclude or in any way limit the Consultancy’s liability for fraud, or for death or personal injury caused by its negligence, or any other liability to the extent such liability may not be excluded or limited as a matter of law. Subject to this:
(i) the Consultancy’s maximum aggregate liability under or in connection with any Scope of Work, whether in contract, tort (including negligence) or otherwise, will in no circumstances exceed £1,000,000 or a sum equal to 100% of the Fees payable under the relevant Scope of Work, whichever is less; and
(ii) the Consultancy will not be liable under these Conditions for any loss of actual or anticipated income or profits, loss of contracts or for any special, indirect or consequential loss or damage of any kind howsoever arising and whether caused by tort (including negligence), breach of contract or otherwise, whether or not such loss or damage is foreseeable, foreseen or known.
The Consultancy shall not be liable for:
(i) any failure to perform or delay or error in performing the Services in accordance with this Agreement if and to the extent that such failure or delay is or was caused by the Client’s failure to perform or delay in performing its obligations hereunder;
(ii) any deliverables approved by the Client before publication or broadcast including without limitation any assertions made in those deliverables in relation to the Client’s products or services and/or those of its competitor(s);
(iii) any information, material or content provided by the Client to the Consultancy for inclusion in the deliverables;
(iv) any matter in relation to which the Consultancy has advised the Client of certain risk(s) if the Client has elected to proceed notwithstanding such risk(s).
The Client agrees to indemnify and keep the Consultancy indemnified against any or all costs, demands, expenses, losses or damages incurred by the Consultancy arising from or out of any claim brought against the Consultancy relating to the nature and/or use of the Client’s products and/or services. In addition, Client agrees to reimburse Consultancy for any costs incurred by Consultancy in complying with any subpoena, order or other informational demand made upon it in connection with any claim, action, proceeding or investigation involving Client or any of Client’s products or services provided that Consultancy is not, itself, a named party in such matter.
These Conditions state the full extent of the Consultancy’s obligations and liabilities in respect of the deliverables and the performance of the Services. The parties agree that any condition, warranty representation or other term concerning the deliverables and/or the performance of the Services which might otherwise be implied into or incorporated in these Conditions, whether by statute, common law or otherwise, is excluded.
15 Compliance with laws and standards
Both parties shall at all times use best efforts to comply with all applicable laws and industry specific codes.
The Client shall inform the Consultancy without delay if the Client considers that any Deliverables submitted to the Client by the Consultancy for approval is false or misleading or in any way contrary to law or to any applicable industry code.
16 Data protection
Each party shall ensure that any mailing list or customer database supplied to the other party shall comply with the requirements of all legislation in force from time to time including, without limitation, the Data Protection Act 1998, and each party shall comply with all applicable obligations of the Data Protection Act 1998.
17 Force majeure
The Consultancy shall be under no liability if we are unable to carry out any provision of a contract for any reason beyond our control, including but not limited to acts of God, legislation, war, fire, flood, drought, failure of power supply, mechanical breakdown, lock out, strike or other action taken by employees in contemplation or furtherance of a dispute, or an inability to procure materials required for the performance of the contract. We shall endeavour to give immediate notice to you of this and will take all reasonable steps to resume performance of its obligations.
18 General
The failure of either party to enforce or to exercise at any time or for any period any term of or any right pursuant to this Agreement shall not be construed as a waiver of any such term or right and shall in no way affect that party’s right later to enforce or exercise it.
If any provision of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid or unenforceable then such invalidity or unenforceability shall not affect the other provisions of this Agreement which shall remain in full force and effect. The parties agree to attempt to substitute for any invalid or unenforceable provision a valid or enforceable provision which achieves to the greatest extent possible the same effect as would have been achieved by the invalid or unenforceable provision.
Provisions of this Agreement which either are expressed to survive its termination or from their nature or context it is contemplated that they are to survive such termination, shall remain in full force and effect notwithstanding such termination.
Neither party shall assign, transfer, charge or deal in any other manner with this Agreement or any of its rights under it without the prior written consent of the other party, such consent not to be unreasonably conditioned, withheld or delayed.
A person who is not a party to this Agreement has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.
This Agreement contains all the terms agreed between the parties regarding its subject matter and supersedes any prior agreement, understanding or arrangement between the parties, whether oral or in writing. No representation, undertaking or promise shall be taken to have been given or be implied from anything said or written in negotiations between the parties prior to this Agreement except as expressly stated in this Agreement. Neither party shall have any remedy in respect of any untrue statement made by the other upon which that party relied in entering into this Agreement (unless such untrue statement was made fraudulently) and that party’s only remedies shall be for breach of contract as provided in this Agreement.
No variation of this Agreement or of any of the documents referred to in it shall be valid unless it is in writing and signed by or on behalf of each of the parties.
19 Governing law and jurisdiction
This contract is made in England and shall be construed in all respect in accordance with the laws of England.
Each party irrevocably agrees to submit to the exclusive jurisdiction of the English courts for the resolution of any claim or matter arising under or in connection with this Agreement.
20 Acceptance of terms and conditions
The placement of an order for services offered by the Consultancy constitutes acceptance of the estimate and agreement to comply fully with all the Terms and Conditions and forms a Contract for Business between the signatory and the Consultancy.