Icotech Group General Conditions Of Contract For The Supply Of Professional Services
1. Interpretation
The following definitions and rules of Interpretation apply:
1.1 Assumption: the assumptions, if any, identified in the Proposal, on which iCoTech are providing the Services;
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business;
Commencement Date: has the meaning given in clause 2.2;
Conditions: these terms and conditions as amended from time to time in accordance with clause 20.5;
Configuration Works: the customisation of iCoPlan based on the Customer’s requirements, as further detailed in clause 6;
Contract: these Conditions together with the Proposal;
Control: has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly;
Customer: the person or company who purchases iCoPlan or Services from iCoTech as further identified in the Proposal;
Customer Default: has the meaning set out in clause 11.2;
Deliverables: iCoPlan and/or Services as set out in the Proposal that are to produced, provided or developed by iCoTech for the Customer;
Error: a reproducible defect, bug or error or combination of them that results in any error or failure of iCoPlan;
Fees: the fees payable by the Customer for the supply of iCoPlan and the Services in accordance with the Proposal;
Hotfix: any code added to iCoPlan for the purpose of fixing Errors;
iCoPlan: a project management computer software program provided by iCoTech, as further described in clause 4 including all Updates, Upgrades, Hotfixes and amendments or additions made pursuant to any Configuration Works;
iCoTech: ICOTECH GROUP LTD registered in England and Wales with company number 11687951;
iCoTech Materials: has the meaning set out in clause 10.1.j;
iCoTech Website: https://www.icotechservices.co.uk/;
IPR: patents, rights to inventions, copyright and related rights, trademarks, trade names, rights in domain names, rights in get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered, and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world;
Microsoft 365: the Microsoft cloud based productivity software services licensed by Microsoft;
Microsoft Power Platform: a line of business intelligence, app development, and app connectivity software applications which connects or integrates to Microsoft 365;
Monthly Allowance: means 16 Tokens;
Proposal: the general description of iCoPlan and Services provided in writing by iCoTech to the Customer;
Purchase Order:means a document issued by iCoTech, in writing or electronically, and sent to the Customer pursuant to clause 2.1b;
Services: the specific services (which may include Troubleshooting, Configuration Works and Support and Iteration) to be supplied by iCoTech to the Customer as set out in the Proposal and further described in clause 10;
Support and Iteration: means the provision of support services including, but not limited to, analysing, detecting and solving Errors and providing end-user support or training which starts after either the completion of Wave 1 or the date as agreed by the parties as set out in the Proposal and further detailed in clause 7;
Tokens: meansthe metric which is used to determine how much time has been spent over and above the contracted baseline as further specified in the Proposal. Each token is worth 30 minutes. If more tokens are consumed due to case complicities or volume, any increase over the baseline will be measured in increments of tokens consumed by the team;
Troubleshooting: a type of technical support to the Customer for the deployment of iCoPlan before the completion of Wave 1, as further detailed in clause 5;
Update: a small change which might include Hotfixes or potential bug fixes;
Upgrade: a new product version with extended functionality.
Wave 1: means the stage in which iCoTech deploys iCoPlan into the Customer’s environment as further described in the Proposal.
Working Day: means a Business Day worked from 9.00 am to 5.30 pm.
1.2 Interpretation
a. A reference to legislation or a legislative provision is a reference to it as it is in force as at the date of this Contract; and includes all subordinate legislation made as at the date of this Contract under that legislation or legislative provision;
b. Any words following the terms including, include, in particular, for example or any similar expression, shall be constructed 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 excludes fax;
d. A reference to a company includes any company, corporation or other body corporate, wherever and however incorporated or established;
e. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
f. Unless the context otherwise requires, words in the singular includes the plural and vice versa;
g. In the event of conflict between these Conditions and the Proposal, then the Proposal will prevail to the extent of the conflict only.
2. Basis of contract
2.1 The Proposal:
a. Constitutes an offer by iCoTech to the Customer to license iCoPlan and purchase the Services in accordance with these Conditions; and
b. Shall only be deemed to be accepted when it is signed and returned to iCoTech, and any descriptions or illustrations contained in iCoTech’s catalogues, website or brochures, are issued or published for the sole purpose of giving an approximate idea of iCoplan and the services described in them. They shall not form part of the contract or have any contractual fees.
2.2 Any samples, drawings, descriptive matter or advertising issued by iCoTech, and any descriptions or illustrations contained in the iCoTech’s catalogues, website or brochures, are issued or published for the sole purpose of giving an approximate idea of iCoPlan and the services described in them. They shall not form part of the Contract or have any contractual force.
2.3 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
2.4 Any Proposal or other quotation given by iCoTech is only valid for a period as specified in the Proposal or in the absence of a specified period, 30 Business Days from its date of issue. iCoTech reserves the right to amend or withdraw any proposal at any time in its absolute discretion.
3. Privacy policy
3.1 iCoTech take its privacy obligations seriously, and are committed to protecting Customer personal information. Any personal information submitted in connection with the use of iCoPlan and/or the Services or is subject to the iCoTech privacy policy found at https://www.icotechservices.co.uk/privacy-policy/ (the “Privacy Policy”), which is hereby incorporated by this reference.
4. iCoPlan and license to use
This clause 4 is only applicable to the extent that the Customer is licensing iCoPlan.
4.1 iCoTech hereby grants a non-exclusive, non-transferable, perpetual, personal licence to the Customer only to use iCoPlan in accordance with the Contract.
4.2 The Customer acknowledges that the license is personal to the Customer. In the event that the Customer’s system hosts or supports any third party tenancies then such use by a third party will be subject to a separate agreement with iCoTech.
4.3 For the purposes of clause 4.1, use of iCoPlan shall be restricted to use of iCoPlan in object code form for the purpose of processing the Customer’s data for the normal business purposes of the Customer (which shall not include allowing the use of iCoPlan by, or for the benefit of, any person other than an employee of the Customer).
4.4 The Customer may not use iCoPlan other than as specified in this clause 4 without the prior written consent of iCoTech, and the Customer acknowledges that additional charges may be payable on any change of use approved by iCoTech.
4.5 Except as expressly stated in clause 4, the Customer has no right (and shall not permit any third party) to copy, adapt, reverse engineer, decompile, disassemble, modify, adapt or make Error corrections to iCoPlan in whole or in part.
4.6 iCoTech shall not be responsible for the provision of any licences other than iCoPlan under this Contract.
4.7 The Customer may not use any such information provided by iCoTech to create any software whose expression is similar to that of iCoPlan nor use such information in any manner which would be restricted by any copyright subsisting in it.
4.8 The Customer shall not:
a. sub-license, assign or novate the benefit or burden of this licence in whole or in part;
b. allow iCoPlan to become the subject of any charge, lien or encumbrance;
c. be entitled to any Update, Upgrade or Hotfix if it ceases to pay Support and Iteration Services.
4.9 iCoTech may at any time sub-license, assign, novate, charge or deal in any other manner with any or all of its rights and obligations under this licence.
4.10 The Customer shall:
a. ensure that iCoPlan is installed on designated equipment only;
b. keep a complete and accurate record of the use of. iCoPlan and produce such record to iCoTech on request from time to time;
c. notify iCoTech as soon as it becomes aware of any unauthorized use of iCoPlan by any person;
d. pay, for broadening the scope of the licences granted under this licence to cover the unauthorized use, an amount equal to the fees which iCoTech would have levied (in accordance with its normal commercial terms then current) had it licensed any such unauthorised use on the date when such use commenced.
4.11 The Customer shall permit iCoTech to inspect and have access to any premises (and to the computer equipment located there) at or on which iCoPlan is being kept or used, and have access to any records kept in connection with this licence, for the purposes of ensuring that the Customer is complying with the terms of this licence, provided that iCoTech provides reasonable advance notice to the Customer of such inspections, which shall take place at reasonable times.
4.12 The Customer acknowledges and accepts that iCoPlan requires Microsoft 365 and, if applicable, Microsoft Power Platform licences. The Customer is responsible for ensuring that it has paid and maintains sufficient licences in order for it to be able to use iCoPlan.
4.13 Upon request by the Customer and agreement by iCoTech, iCoTech can:
a. complete the migration of iCoPlan remotely by utilising the Customer’s system;
b. control and restrict accessibility of iCoPlan to Customer users;
c. subject to clause 17.2, provide a new activation key for iCoPlan subject to inactivating the first installation if the Customer wants to use iCoPlan in another environment.
4.14 iCoPlan is licensed on a per user basis within one Microsoft 365 tenant. The Customer acknowledges that the number of iCoPlan users to be licensed can be less than the amount of Microsoft 365 users.
4.15 Unless expressly agreed in a Proposal, iCoTech does not provide any data backup procedures or protections for the Customer.
4.16 The Customer shall promptly notify iCoTech of any Errors or any other failures of iCoPlan that it becomes aware of and iCoTech shall use its reasonable efforts to provide solutions within the scope of Support and Iteration. Such notification shall be made by the designated contact person of the Customer.
5. Troubleshooting
5.1 iCoTech shall provide Troubleshooting as part of iCoPlan licence to the Customer via remote access for ensuring the installation and the correct functioning of iCoPlan. In order to start a Troubleshooting session, the Customer shall email support@icotechservices.co.uk.
5.2 The Customer agrees that the Troubleshooting shall only include debugging and installation of iCoPlan and not any level of training or consulting.
5.3 In order for iCoTech to deploy iCoPlan into the Customer’s environment, the Customer shall ensure that it has:
a. a fully functioning hardware and network access that is suitable for iCoPlan;
b. a fully functioning operating systems and necessary Microsoft 365 and Microsoft Power Platform licenses;
c. implemented all Updates, Upgrades and Hotfixes supplied by iCoTech;
d. met the individual system requirements for iCoPlan.
5.4 The Customer shall fully collaborate with iCoTech during the Troubleshooting including providing it with all necessary information, access and resources as iCoTech may reasonably request.
5.5 iCoTech shall charge additional fees for providing Troubleshooting to the Customer if the problem is caused by any modification, configuration, fault or failure by the Customer or its users.
5.6 iCoTech shall use its reasonable efforts to investigate any Troubleshooting within two Business Days after the notification by the Customer.
5.7 iCoTech may provide support for the Customer in relation to Microsoft 365 or any underlying Microsoft Power Platform in accordance with the Proposal.
6. Configuration Works Services
This clause 6 applies only to the extent that the iCoTech has agreed to provide Configuration Works to the Customer.
6.1 iCoPlan can be modified, customised, enhanced or improved either by iCoTech or the Customer further in order to meet the Customer’s needs and the Customer shall inform iCoTech to have special customisation of iCoPlan.
6.2 iCoTech will charge for any Configuration Works in accordance with the Billing Schedule set out in the Proposal. In the absence of a Billing Schedule in the Proposal, iCoTech shall be entitled to charge for any Configuration Works as agreed by the parties.
7. Support and Iteration Services
This clause 7 applies only to the extent that the iCoTech has agreed to provide Support and Iteration Services to the Customer
7.1 iCoTech shall supply Support and Iteration Services to the Customer and end-users. Support and Iteration shall focus on, including, but not limited to, analysing the faulty parts of iCoPlan and give advice to the Customer via telephone or e-mail on how to eliminate any Errors. The removal of Errors shall either be made by Hotfixes, updates, remote access or personal support by an iCoTech employee (at iCoTech’s discretion).
7.2 Support and Iteration Services shall include but not be limited to training for the general usage of iCoPlan and the purchased Services.
7.3 The commencement of Support and Iteration Services shall start after either the completion of Wave 1 or the date agreed by the parties.
7.4 Support and Iteration Service requests shall be made by sending an email to support@icotechservices.co.uk by a designated contact person of the Customer.
7.5 Support and Iteration Services shall not cover any third party applications or technology services other than Microsoft 365 applications.
7.6 iCoTech shall record the time spent during providing the Support and Iteration Services to the Customer and the payment shall be made by using the Tokens.
8. Remote Access
8.1 The Customer agrees that iCoTech may perform the Troubleshooting, Configuration Works or Support and Iteration Services by remote access. In order to connect to the Customer’s system, iCoTech shall be entitled to use any remote management software that is available in the market.
8.2 The Customer grants permission to iCoTech to connect to its system and computers via remote access during the Term for the following purposes:
a. as necessary to provide the Services,
b. to observe and report back to the Customer on the Customer’s use of iCoPlan, and/or the Services, and make recommendations for improved its use of iCoPlan and/or the Services, and/or
c. for other purposes at the Customer’s sole option.
8.3 Remote access is initiated and terminated by the Customer, not iCoTech, and remains within the Customer’s control. iCoTech shall not be liable for any delay or failure to provide the Services to the extent that it arises as a consequence of the Customer removing, limiting or preventing iCoTech accessing its systems.
9. Supply of Services
9.1 iCoTech shall supply the identified Services to the Customer in accordance with the Proposal in all material aspects.
9.2 iCoTech shall use its reasonable endeavours to meet any performance dates specified in the Proposal, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
9.3 iCoTech reserves the right to amend the Services 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 iCoTech shall notify the Customer in any such event.
9.4 iCoTech warrants to the Customer that the Services will be provided using reasonable care and skill.
10. Customer’s Obligation
10.1 The Customer shall:
a. ensure that the information in the Proposal is complete and accurate;
b. complete all requirements regarding registering on the Microsoft partner access link;
c. be responsible for the termination costs of the existing third party applications which are not supported by iCoPlan.
d. co-operate with iCoTech in all matters relating to iCoPlan and the Services;
e. provide iCoTech, its employees, agents, consultants and subcontractors, with access to the Customer’s premises, office accommodation and other facilities as reasonably required by the iCoTech;
f. co-operate with iCoTech in all matters relating to iCoPlan and the Services and provide iCoTech with assistance from the Customer’s employees where reasonably requires;
g. provide iCoTech with such information and materials as iCoTech may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
h. grant permission iCoTech to use the Customer’s logo and name in its marketing materials, website, catalogue, brochure and any social media outlets in relation to promote iCoTech and potential transactions;
i. prepare the Customer’s premises for the supply of the Services when necessary;
j. permit iCoTech to create a case study for publication on iCoTech’s website by using the Customer’s logo and name.
k. obtain and maintain all necessary licences, permissions and consents which may be required for iCoPlan and the Services before the date on which the Services are to start;
l. keep all materials, equipment, documents and other property of iCoTech (iCoTech Materials) at the Customer’s premises in safe custody at its own risk, maintain iCoTech Materials in good condition until returned to iCoTech, and not dispose of or use iCoTech Materials other than in accordance with iCoTech’s written instructions or authorisation; and
m. comply with any additional obligations as set out in the Proposal.
10.2 If iCoTech’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
a. without limiting or affecting any other right or remedy available to it, iCoTech shall have the right to suspend performance of iCoPlan and the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays iCoTech’s performance of any of its obligations;
b. iCoTech shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from iCoTech’s failure or delay to perform any of its obligations as set out in these Conditions;
c. the Customer shall reimburse iCoTech on written demand for any costs or losses sustained or incurred by iCoTech arising directly or indirectly from the Customer Default; and
d. the Customer shall inform iCoTech about any Errors in iCoPlan which might be installed or adapted by third parties and not developed by iCoTech. iCoTech shall charge additional fees to the Customer for eliminating those Errors in iCoPlan.
11. Fees and Payment
11.1 The Fees for iCoPlan shall be a one-off payment taken annually for the Term at the beginning of the Contract.
11.2 Unless otherwise specified in the Proposal, the Fees for Configuration Works shall be paid by the Customer within 30 days from the date of the invoice.
11.3 The Fees for the Support and Iteration Services shall be calculated on a time and materials basis. The Customer agrees as follows:
a. the Customer shall pay the amount specified in the Proposal per month for 16 Tokens and each Tokens will be used in accordance with the Deliverables table provided in the Proposal;
b. the Tokens are given for each month and the Customer agrees that they do not roll over;
c. Should the Customer need more Tokens than the Monthly Allowance for the anticipated Support and Iteration Services, it shall purchase additional Tokens to cover the shortfall;
d. if the Customer uses the Support and Iteration Service more than the given Tokens, or the requested Support and Iteration Service is going to exceed the Tokens, iCoTech shall inform the Customer and get prior approval before continuing to complete the Deliverable. The Customer shall pay for any additional Tokens at the rate (subject to clause 11.7) set out in the Proposal.
11.4 iCoTech’s daily fee rates for each individual are calculated on the basis of Working Days;
11.5 iCoTech shall be entitled to charge:
a. an overtime rate of 150% of the daily fee rate on a pro-rata basis for each part day or for any time worked by individuals whom it engages on the Services outside the hours referred to in clause 11.4;
b. the Customer for any expenses by the individuals whom iCoTech engages in connection with iCoPlan, and the Services including the cost of services provided by third parties and required by iCoTech to supply iCoPlan or perform the Services, the cost of any materials required for the provision of the Services, travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by the iCoTech for the performance of the Services, and for the cost of any materials.
11.6 The Customer shall pay iCoTech for any additional services that are not included in the Proposal subject to the applicable daily rate in effect at the time of performance or such other rates as may be agreed between the parties.
11.7 iCoTech reserves the right to increase the Fees on an annual basis with effect from each anniversary of the Commencement Date in line with the percentage increase in the Retail Prices Index in the preceding 12-month period and the first such increase shall take effect on the first anniversary of the Commencement Date and shall be the latest available figure for the percentage increase in the Retail Prices Index.
11.8 iCoTech shall invoice the Customer for the Services monthly in arrears.
11.9 All payments must be made in British pound sterling (GBP) unless otherwise agreed in writing.
11.10 The Customer shall pay each invoice submitted by iCoTech:
a. within 30 days of the date of the invoice; and
b. in full and in cleared funds to a bank account nominated in writing by iCoTech, and
time for payment shall be of the essence of the Contract.
11.11 All amounts payable by the Customer under the Contract are exclusive of value added tax (which the Customer will pay in addition).
11.12 If the Customer fails to make a payment due to iCoTech under the Contract by the due date, then, without limiting iCoTech’s remedies under this Contract, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 11.12 will accrue each day at 8% a year above the Bank of England’s base rate from time to time, but at 8% a year for any period when that base rate is below 0%.
11.13 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).
12. IPR
12.1 All IPR in or arising out of or in connection with iCoPlan and the Services (other than IPR in any materials provided by the Customer) shall be owned by iCoTech. The Customer shall be entitled to use the IPR provided by iCoTech pursuant to this Contract strictly for the purpose of exercising its rights under this Contract.
12.2 The Customer grants iCoTech a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any materials provided by the Customer to iCoTech for the term of the Contract for the purpose of providing iCoPlan and the Services to the Customer.
13. Data Protection
13.1 Definitions.
Agreed Purposes: The performance by each party of its obligations under these Conditions.
Controller, processor, data subject, personal data, personal data breach, processing and appropriate technical and organisational measures: as set out in the Data Protection Legislation below.
Data Discloser: a party that discloses personal data to the other party.
Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK
including the UK GDPR; the Data Protection Act 2018 (DPA 2018) (and regulations made thereunder); the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
UK GDPR: has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018.
Permitted Recipients: the parties to these Conditions, the employees of each party, any third parties engaged to perform obligations in connection with these Conditions.
Effect of non-compliance with Data Protection Legislation. Both parties shall comply with all applicable requirements of the Data Protection Legislation.
The parties acknowledge that for the purposes of the Data Protection Legislation, each party may be a Controller of their own Personal Data.
Particular obligations relating to data sharing. The both parties shall:
ensure that it has all necessary notices and consents and lawful bases in place to enable lawful transfer of personal data to the Permitted Recipients for the Agreed Purposes;
process personal data only for the Agreed Purposes;
not disclose or allow access to personal data to anyone other than the Permitted Recipients;
ensure that all Permitted Recipients are subject to written contractual obligations concerning personal data (including obligations of confidentiality) which are no less onerous than those imposed by this Contract;
ensure that it has in place appropriate technical and organisational measures, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data.
not transfer any personal data received from the Data Discloser outside the UK unless the transferor ensures that (i) the transfer is to a country approved under the applicable Data Protection Legislation as providing adequate protection; or (ii) there are appropriate safeguards or binding corporate rules in place pursuant to the applicable Data Protection Legislation; or (iii) the transferor otherwise complies with its obligations under the applicable Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; or (iv) one of the derogations for specific situations in the applicable Data Protection Legislation applies to the transfer.
14. Limitations of Liability and Indemnity
THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.
14.1 References to liability in this clause 14 include every kind of liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
14.2 Neither party may benefit from the limitations and exclusions set out in this clause in respect of any liability arising from its deliberate default.
14.3 Nothing in this clause 14 shall limit the Customer’s payment obligations under the Contract.
14.4 Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
a. death or personal injury caused by negligence;
b. fraud or fraudulent misrepresentation; and
c. breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
14.5 Subject to clause 14.2 (No limitation in respect of deliberate default), and clause 14.4 (Liabilities which cannot legally be limited), iCoTech’s total liability to the Customer for all loss or damage shall not exceed the total amount of fees payable by the Customer under the Contract.
14.6 Subject clause 14.2 (No limitation in respect of deliberate default), clause 14.3 (No limitation of customer’s payment obligations) and clause 144. (Liabilities which cannot legally be limited), in no event shall iCoTech be liable to the Customer for loss of profits; loss of sales or business; loss of agreements or contracts; loss of anticipated savings; loss of use or corruption of software, data or information; loss of or damage to goodwill; and indirect or consequential loss.
14.7 The terms implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
14.8 Unless the Customer notifies iCoTech that it intends to make a claim in respect of an event within the notice period, iCoTech shall have no liability for that event. The notice period for an event shall start on the day on which the Customer became, or ought reasonably to have become, aware of the event having occurred and shall expire 2 months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
14.9 The Customer shall indemnify iCoTech against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by iCoTech arising out of or in connection with any claim made against iCoTech:
a. for actual or alleged infringement of a third party’s IPR arising out of or in connection with the Customer’s use of iCoPlan and the Services;
b. by a third party arising out of or in connection with the provision of iCoPlan or the Services, to the extent that such claim arises out of the breach, negligent performance or failure or delay in performance of the Contract by the Customer, its employees, agents or subcontractors.
14.10 This clause 14 shall survive termination of the Contract.
15. Warranty
iCoTech does not warrant that the use of iCoPlan will be uninterrupted or error-free. The correction of any Error in iCoPlan will be subject to the Support and Iteration Services.
16. Term, Renewal and Cancellation
16.1 The Customer agrees that the Minimum Term for the Services shall be for a period of 12 months commencing on the acceptance of the Proposal. The Contract shall automatically renew for consecutive periods of 12 months (each a Renewal Period) at the end of the Minimum Term or Renewal Period (as applicable) unless the Customer has given iCoTech no less than 90 days’ notice prior to the end of the Minimum Term or Renewal Period (as applicable).
16.2 The Customer agrees that iCoTech allocates time and finances to plan the provision of Services under the Contract; therefore, subject to above clause 16.1, should the Customer decide to cancel the Contract within 30 days of the Commencement Date by giving written notice to iCoTech or deleting iCoPlan (if iCoTech has deployed iCoPlan into the Customer’s environment) completely, then iCoTech shall be entitled to retain 50% of the Fees paid (or due if not paid) (the Cancellation Fee). The Customer acknowledges and accepts that the Cancellation Fee is a fair and reasonable reflection of the time, effort and resource incurred by iCoTech prior to cancellation by the Customer pursuant to this clause.
17. Termination
17.1 Without affecting any other right or remedy available to it, iCoTech may terminate the Contract with immediate effect by giving written notice to the Customer if, the Customer:
a. commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 20 days of being notified in writing to do so;
b. 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), applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, 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;
c. suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
d. financial position deteriorates to such an extent that in iCoTech’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
17.2 Without affecting any other right or remedy available to it, iCoTech may, at its discretion, suspend, be entitled to charge additional fees or terminate the Contract with immediate effect by giving written notice to the Customer if:
a. the Customer fails to pay any amount due under the Contract on the due date for payment; or
b. iCoPlan or the Services have not started within 30 days from the date of the acceptance of the Proposal;
c. there is a change of control or structure of the Customer.
d. iCoTech reasonably believes that the Customer is about to become subject to any of the events listed in clause 17.1.b to 17.1.d (inclusive).
18. Consequences of Termination
18.1 On termination or expiry of the Contract, the Customer shall:
a. immediately pay to the iCoTech all of the iCoTech’s outstanding unpaid invoices and interest and, in respect of iCoPlan and the Services supplied but for which no invoice has been submitted, iCoTech shall submit an invoice, which shall be payable by the Customer immediately on receipt;
b. return all of iCoTech Materials and any Deliverables which have not been fully paid for. If the Customer fails to do so, then iCoTech may enter the Customer’s premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract.
18.2 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 termination or expiry.
18.3 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.
19. General
19.1 Force majeure. Neither party shall be in breach of this Contract or otherwise liable for any failure or delay in the performance of its obligations if such nor liable for delay in performing, or failure to perform, any of its obligations under this Contract if such delay or failure results from events, circumstances or causes beyond its reasonable control. The time for performance of such obligations shall be extended accordingly. In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed. If the period of delay or non-performance continues for 90 days, the party not affected may terminate this Contract by giving 30 days’ written notice to the affected party.
19.2 Assignment and other dealings.
a. iCoTech 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.
b. The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, 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 iCoTech.
19.3 Confidentiality.
a. Each party undertakes that it shall not at any time during the Contract, and for a period of two years after termination or expiry of the Contract, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 19.3.b.
b. Each party may disclose the other party’s confidential information:
(i) to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 19.3; and
(ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
c. Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.
19.4 Entire agreement.
a. The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
b. The Customer acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. The Customer agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
19.5 Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
19.6 Waiver. A waiver 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 right or remedy. 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.
19.7 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Contract. If any provision or part-provision of this Contract deleted under this clause 19.7, the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
19.8 Notices.
a. 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 or by pre-paid first-class post or other next Business Day delivery service 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.
b. Any notice or communication shall be deemed to have been received, if:
(i) delivered by hand, at the time the notice is left at the proper address;
(ii) sent by pre-paid first-class post or other next Business Day delivery service, at 9.00 am on the second Business Day after posting; or
(iii) sent by email at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause, business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
c. This clause 19.8 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.
19.9 Third party rights.
a. Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
b. The right of iCoTech to rescind or vary the Contract are not subject to the consent of any other person.
19.10 Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with the law of England and Wales. Each party irrevocably agrees that the courts of England and Wales shall have non-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.
