Terms and conditions of use
These are the terms on which you can benefit from the managed services provided via icasework.com as provided by iCasework Ltd. of Unit 9, Interlink House, 73A Maygrove Road, London, NW6 2EG ("the Provider").
If you wish to use icasework.com on the terms set out below, please
click the "I accept" button below, to acknowledge
acceptance of these terms. These terms will then govern the relationship between you and the Provider and any use which
you make of the services provided via icasework.com.
If you do not accept the terms and conditions laid down in this Agreement, please do not use or subscribe to the Service.
NOW IT IS AGREED as follows:
1. Definitions and construction
1.1 In this Agreement the following expressions shall apply (save where the context otherwise requires):
1.1.1 "Commencement Date" means $$commencementDate$$.
1.1.2 "Customer" means the party which signifies acceptance of this Agreement by its representative inserting its details in the Order Form and click-accepting this Agreement.
1.1.3 "Customer Data" means all data processed by the Provider or provided to the Provider for processing or otherwise processed as part of the Services including, but not limited to, data generated by the website from visitor or user input.
1.1.4 "Customer Equipment" means the hardware and software which the Customer is required to have in use in order to use and enable the Services to be provided in accordance with this Agreement.
1.1.5 "Downtime" means a period during which there is total loss of the Services.
1.1.6 "Guidelines" means any guidelines provided to the Customer as set out in a Proposal or, if no Proposal was provided, as set out on the www.icasework.com website in relation to the use of the Services.
1.1.7 "Initial Period" means the period of 12 months commencing on the Commencement Date.
1.1.8 "Intellectual Property Rights" means all copyrights, patents, database rights, registered and unregistered design rights, trademarks and service marks and applications for any of the foregoing, together with all trade secrets, know-how, rights to confidence and other intellectual and industrial property rights in all parts of the world and for the full term thereof including all rights to renew the same.
1.1.9 "Service Period" means a period of 12 months commencing on the Commencement Date or any subsequent 12 month period thereafter.
1.1.10 "Order Form" means the form integrated herewith which in conjunction with these terms and conditions forms the Agreement between the Provider and the Customer.
1.1.11 "Outage" means an instance of Downtime.
1.1.12 "Proposal" means a written proposal for the provision of services by the Provider to the Customer.
1.1.13 "Service Fee" means the fee of $$fee$$ which covers the provision of the Services for the Initial Term and is payable yearly in advance.
1.1.14 "Service Interruption" means a period during which there is partial loss of the Services.
1.1.15 "Service Levels" means the levels of performance to which the Services are to be provided to the Customer by the Provider as set out as set out in a Proposal or, if no Proposal was provided, as set out in the Service Level Agreement published on the www.icasework.com website.
1.1.16 "Services" means the set-up, hosting, reporting and ongoing management of the Software as set out in more detail in a Proposal or, if no Proposal was provided, as set out on the www.icasework.com website.
1.1.17 "Software" means the Provider's proprietary software used to provide the Services.
1.1.18 "System Management Regulations" means regulations introduced by the Provider from time to time for the better management of the Services and which may include (but are not limited to):
18.104.22.168 defining minimum specifications for equipment used by the Customer to interface with the Services (including, but not limited to routers, firewalls, scanners and PC's);
22.214.171.124 regulations to ensure that the network through which the Services are provided are not overloaded and that the security and integrity of the network is maintained and including regulations which arise from the need to comply with regulations of any data centre facility engaged by the Provider in connection with the Services; and
126.96.36.199 regulations to ensure that any database or other applications which form part of the Services are used to the best effect and within their capacities.
1.1.19 "Term" means the effective term of this Agreement.
2. Provision of services
2.1 The Provider agrees with effect from the Commencement Date in consideration of the payment of the Service Fee by the Customer to supply the Services on a non-exclusive basis upon the terms and conditions of this Agreement.
2.2 The Customer acknowledges that the Provider may at any time, and without notice, incorporate user management controls into the Software for the purposes of ensuring that user quotas are not exceeded.
This Agreement shall commence on the Commencement Date and shall (subject to the provisions for termination set out in this Agreement) continue for the Initial Period and thereafter until terminated by either party giving to the other not less than 30 days' notice in writing (any such notice to expire not earlier than the end of the Initial Period).
4. Service Fee
4.1 The Customer undertakes to pay the Service Fee for the Services and additional fees to the Provider for any other services provided by the Provider, such charges to be based on the Provider's then current charging rates.
4.2 Provider shall send to the Customer an invoice in respect of the Service Fee yearly in advance as set out in a Proposal or, if no Proposal was provided, as set out on the www.icasework.com website.
4.3 The Service Fee covers the number of users set out in the Order Form, any increase in the number of users will result in a pro-rated increase. If such increase occurs during the course of a year, the remainder of that period as well as future years will be subject to the pro-rated increase.
4.4 All invoices are payable within 30 days after the date thereof unless otherwise agreed in writing.
4.5 The Provider shall be entitled to charge interest in respect of the late payment of any sums due under this Agreement (as well after as before judgement) at the rate of 3 per cent per annum above the base rate of Barclays Bank plc from the due date until payment.
4.6 The Provider shall be entitled to increase the Service Fee with effect from each anniversary of the Commencement Date by giving at least 30 days' prior written notice to the Customer. Such increase measured as a percentage of the then current Service Fee shall not exceed 20 percent. All sums due under this Agreement are expressed exclusive of UK Value Added Tax but will be subject to UK Value Added Tax which will be payable by the Customer.
5. Service Levels
5.1 The Provider undertakes with the Customer that it will use reasonable endeavours to ensure that the Services and each component thereof will, subject to Clauses 10.4 and 14, be provided to the levels of performance specified in the Service Levels save where otherwise expressly provided for by this Agreement.
6. Outages, Service Interruptions and Changes to Services
6.1 Outages or Service Interruptions may be made by the Provider when in its reasonable opinion they are necessary to facilitate improvements to or maintenance of the Services. The Provider will use best endeavours to minimise the Outages or Service Interruptions that may be caused by a change.
6.2 If Outages or Service Interruptions are required under clause 6.1 ("Scheduled Interruptions"):
6.2.1 The Provider will endeavour to schedule Scheduled Interruptions so as to minimise impact on the Services and will notify the Customer of the anticipated commencement time of the Scheduled Interruptions and its estimated duration.
6.3 Customer requested interruptions will be fulfilled but will not be considered a break in service, and will not be a factor when calculating breaches of the Service Level Agreement for any purpose or give rise to any liability on the part of the Provider.
7. Warranties and indemnities
7.1 The Provider warrants to and undertakes with the Customer that:
7.1.1 The Provider will use its reasonable efforts to provide the Services and to exercise reasonable care and skill and in accordance with the terms of this Agreement;
7.1.2 The Provider has full right power and authority to provide the Services to the Customer in accordance with the terms of this Agreement; and
7.1.3 The Provider has all requisite registrations under UK data protection legislation and will maintain such registrations throughout the Term and will comply with the provisions of such legislation.
7.2 Except for the express warranties set forth in this clause 7, the Services are provided on an "as is" basis, and the Customer's use of the services is at its own risk. The Provider does not make, and hereby disclaims, any and all other express and/or implied warranties, statutory or otherwise, including, but not limited to, warranties of merchantability, fitness for a particular purpose and any warranties arising from a course of dealing, usage, or trade practice. The Provider does not warrant that the Services will be uninterrupted, error-free, or completely secure.
7.3 The Provider does not and cannot control the flow of data to or from its network and other portions of the Internet. Such flow depends in large part on the performance of Internet services provided or controlled by third parties. At times, actions or omissions of such third parties can impair or disrupt connections to the Internet (or portions thereof). Although the Provider will use commercially reasonable efforts to take all actions it deems appropriate to remedy and avoid such events, the Provider cannot guarantee that such events will not occur. Accordingly, the Provider disclaims any and all liability resulting from or related to such events.
8. Customer Obligations and Warranties.
8.1 The Customer is required at all times during the term to maintain the Customer Equipment in good order and working condition.
8.2 The Customer undertakes at all times during the Term to comply with all current System Management Regulations.
8.3 In the event that the Customer is in breach of any of its obligations under this Agreement, then:-
8.3.1 The Provider can not be held responsible should the Services fail to comply with the Service Levels as a result (directly or indirectly) of such Customer breach and no service credits will accrue on account thereof;
8.3.2 The Provider shall be entitled to charge the Customer for staff time engaged on rectifying any resulting problems at the Provider's standard charge rates for the time being; and
8.3.3 The Provider may terminate or suspend support in relation to the Services without prejudice to any pre-existing rights and obligations of either party. The Customer represents, warrants and undertakes that:
8.4.1 it has and shall during the Term have the legal right and authority to place and use and have used any of its equipment as contemplated under this Agreement;
8.4.2 it will use the Services only for lawful purposes and in accordance with this Agreement; and
8.4.3 any software, data, equipment or other materials provided by the Customer to the Provider or employed by the Customer in its use of or receipt of the Services shall not infringe any Intellectual Property Rights of any third party and shall not be obscene or defamatory of any person and shall not violate the laws or regulations of any state which may have jurisdiction over such activity.
8.5 The Customer shall provide all such assistance, facilities and information to the Provider as the Provider may reasonably require in order to enable it to carry out its obligations under this Agreement.
8.6 In the event of any breach of any of the foregoing representations or warranties, in addition to any other remedies available at law or in equity, the Provider will have the right to suspend immediately any related Services if deemed reasonably necessary by the Provider to protect the proper interests of the Provider or its other customers. If practicable and depending on the nature of the breach, the Provider may (in its absolute discretion) give the Customer an opportunity to cure. In such case once the Customer has cured the breach, the Provider will promptly restore the Service(s).
9.1 Each party recognises that it is impossible to maintain flawless security but (where relevant) the Provider shall take all reasonable steps to prevent security breaches in its servers' interaction with the Customer and security breaches in our interaction with resources or users outside of any firewall that may be built into the Provider's servers.
9.2 The Customer is responsible for maintaining the confidentiality of any passwords which are required to access the Software and the Services and is solely responsible for any damage caused by any such unauthorised access.
10. Limitation of liability
(CUSTOMER'S ATTENTION IS IN PARTICULAR DRAWN TO THE PROVISIONS OF THIS CLAUSE).
10.1 The Provider shall not be liable for any loss or damage of whatsoever nature suffered by the Customer arising out of or in connection with any act, omission, misrepresentation or error made by or on behalf of the Customer or arising from any cause beyond the Provider's reasonable control.
10.2 The Provider is not liable for any indirect loss, consequential loss, loss of profit, revenue, data or goodwill howsoever arising suffered by the Customer or for any wasted management time, failure to reconstitute data, failure to make anticipated savings or liability of the Customer to any third party arising in any way in connection with this Agreement or any maintenance or other agreement entered into between the Customer and the Provider or for any liability of the Customer to any third party or otherwise whether or not such loss has been discussed by the parties pre-contract or for any account for profit, costs or expenses arising from such damage or loss.
10.3 The Customer accepts that the Provider is in no way liable for any virus or other contaminants which enter the Customer's email system or computer network via email.
10.4 The Provider shall not be liable for any interruptions to the Services or Outages arising directly or indirectly from:-
10.4.1 interruptions to the flow of data to or from the internet;
10.4.2 the effects of the failure or interruption of services provided by third parties;
10.4.3 factors outside of the Provider's reasonable control;
10.4.4 any actions or omissions of the Customer (including, without limitation, breach of the Customer's obligations set out in this Agreement or set out in a Proposal or, if no Proposal was provided, as set out on the www.icasework.com website) or any third parties;
10.4.5 Problems with the Customer's equipment and/or third party equipment;
10.4.6 interruptions to the Services requested by the Customer.
10.5 None of the clauses above shall apply so as to restrict liability for death or personal injury resulting from the negligence of the Provider or its appointed agents.
10.6 No matter how many claims are made and whatever the basis of such claims, the Provider's maximum aggregate liability to the Customer under or in connection with this Agreement or any other agreement between the parties or any software related to this Agreement, in respect of any direct loss (or any other loss to the extent that such loss is not excluded by clauses 10.1-10.4 above or otherwise) whether such claim arises in contract or in tort shall not exceed £2,000,000.
10.7 The Customer agrees that it is in a better position to foresee and evaluate any loss it may suffer in connection with this Agreement and that the Service Fee has been calculated on the basis of the limitations and exclusions in this clause 10 and that the Customer will effect insurance as is suitable having regard to its particular circumstances and the terms of this clause 10.
11. Intellectual property rights
11.1 Without prejudice to the Customer's rights in its own materials, the parties hereby agree that the Customer shall not acquire any Intellectual Property Rights whatsoever in respect of the Software, documentation and other materials used by the Provider in connection with or related to the provision of the Services hereunder.
11.2 The Provider warrants that it has all necessary right, title and interest to enable the Customer to benefit from the Services in accordance with this Agreement.
11.3 The Customer hereby grant to the Provider:
11.3.1 A non-exclusive, royalty-free, world-wide licence during the Term to use, copy, reproduce, and manipulate data provided by the Customer or resulting from the Services for the purposes of using the data for the provision of the Services; and
11.3.2 A non-exclusive, royalty-free, world-wide licence during the Term to use, reproduce and display the Customer's trade marks for the purposes of using the data for the provision of the Services.
11.4 Subject to any contrary provision in this Agreement, the Provider undertakes only to use the Customer's trade marks for the purpose of providing the Services.
12.1 For the purposes of this clause 12, the following events shall be deemed "acts of default":
12.1.1 if the Customer fails to pay any moneys due pursuant hereto within 7 days of the due date therefor;
12.1.2 if a party commits any material breach of any term of this Agreement (other than one falling under clause 12.1.1 above) and which, in the case of a breach capable of being remedied, shall not have been remedied within 30 days of a written request by the other party to remedy the same;
12.1.3 if a party shall convene a meeting of its creditors or if a proposal shall be made for a voluntary arrangement within Part I of the Insolvency Act 1986 or a proposal for any other composition scheme or arrangement with or assignment for the benefit of its creditors or if the other shall be unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or if a trustee, receiver, administrative receiver, administrator or liquidator or similar officer is appointed in respect of the other party or all or any part of its business or assets or if a petition is presented or a meeting is convened for the purpose of considering a resolution or other steps are taken for the winding up of the other party or for the making of an administration order (otherwise than for the purpose of an amalgamation or reconstruction) or if any analogous step is taken in any jurisdiction.
12.2 If the Customer commits an act of default then the Provider may:
12.2.1 Forthwith suspend the provision of the Services hereunder (or any of them or any part of them) and no such suspension shall be deemed a breach of any term or provision of this Agreement or give rise to any service credits; or
12.2.2 Terminate this Agreement by notice in writing forthwith.
12.3 If the Provider commits an act of default then the Customer may terminate this Agreement by notice in writing forthwith.
12.4 Any termination of this Agreement for any reason shall be without prejudice to any other rights or remedies a party may be entitled to hereunder or at law and shall not affect any accrued rights or liabilities of either party nor the coming into force or the continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination.
12.5 In the event of termination of this Agreement:-
12.5.1 The Customer agree promptly to pay to the Provider all outstanding payments;
12.5.2 The Provider's entitlement to use the Customer's trade marks ceases immediately except as necessary for the provision of any post-termination services;
12.5.3 The Customer shall be entitled to receive a copy of its database by giving at least 14 days' prior written notice to the Provider. The Provider in its sole discretion may agree to provide any further assistance reasonably requested by the Customer in connection with the hand-over to a third party of any services provided by the Provider hereunder, and the Customer shall pay the Provider in accordance with its then current standard rates for any such assistance.
12.6 Termination of this Agreement shall be without prejudice to any rights or obligations which shall have accrued prior to such termination.
13. Confidentiality and Ownership of Customer Data
13.1 Each of the Provider and the Customer hereby undertakes with the other to:
13.1.1 keep confidential all Confidential Information;
13.1.2 not without the Customer's written consent disclose the Customer Data in whole or in part to any other person save those of its employees agents and sub-contractors involved in the provision or receipt of the Services and who have, and to the extent that they have, a need to know the same; and
13.2 The provisions of clause 13.1 above shall not apply to the whole or any part of the Confidential Information to the extent that it is:
13.2.1 trivial or obvious;
13.2.2 already in the other's possession without duty of confidentiality on the date of its disclosure;
13.2.3 in the public domain other than as a result of a breach of this clause; or
13.2.4 to the extent that disclosure of such information may be required by any governmental agency or by operation of law and, in either such case, the party required to make such disclosure shall use reasonable endeavours to notify the other party of such requirement prior to making the disclosure.
13.3 Each of the Provider and the Customer hereby undertakes to the other to make all relevant employees agents and sub‑contractors aware of the confidentiality of the Information and the provisions of this clause 13.
13.4 For the avoidance of doubt, all Customer Data shall remain at all times the excusive property of the Customer and may only be used by the Provider in order to fulfil its obligations pursuant hereto.
13.5 If the Customer is subject to the UK Freedom of Information Act 2000 and the Environmental Information Regulations 2004 ('the Acts'), it may be required to disclose information forming part of the Agreement to anyone who makes a reasonable request as part of its duties under the Acts. The Customer has absolute discretion to apply or not to apply any exemptions or exceptions under the Acts.
13.6 The Provider shall assist and cooperate with the Customer to enable the Customer to comply with the information disclosure requirements under the Acts and in so doing will comply with any timescale notified to it by the Customer.
14. Force majeure
14.1 Neither party hereto shall be liable for any breach of its obligations hereunder, except in respect of payment, resulting from causes beyond the reasonable control of the party in default (or its sub‑contractors) including but not limited to act of God, war, insurrection, riot, civil commotion, Government regulation, embargo, explosion, strike, labour dispute, illness, flood, fire or tempest (an 'Event of Force Majeure'). Any time limit or estimate for a party to perform any act hereunder shall be suspended during an Event of Force Majeure.
14.2 Each of the parties hereto agrees to give notice forthwith to the other upon becoming aware of an Event of Force Majeure such notice to contain details of the circumstances giving rise to the Event of Force Majeure.
14.3 If a default due to an Event of Force Majeure shall continue for more than 30 days then the party not in default shall be entitled to terminate this Agreement. Neither party shall have any liability to the other in respect of the termination of this Agreement as a result of an Event of Force Majeure but such termination shall not affect any pre‑existing rights or obligations of either party.
The waiver by either party of a breach or default of any of the provisions of this Agreement by the other party shall not be construed as a waiver of any succeeding breach of the same or other provisions nor shall any delay or omission on the part of either party to exercise or avail itself of any right, power or privilege that it has or may have hereunder operate as a waiver of any breach or default by the other party.
No announcement or information concerning this Agreement or any ancillary matter shall be made or released or authorised to be made or released in any advertising publicity promotional or other marketing activities by either of the parties without the prior written consent of the other party.
17. Invalidity and severability
If any provision of this Agreement shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable the invalidity or unenforceability of such provision shall not affect the other provisions of this Agreement and all provisions not affected by such invalidity or unenforceability shall remain in full force and effect. The parties hereby agree to attempt to substitute for any invalid or unenforceable provision a valid or enforceable provision which achieves to the greatest extent possible the economic legal and commercial objectives of the invalid or unenforceable provision.
18. Entire agreement
This agreement (including the Order Form) and the Proposal if provided, constitute the entire agreement between the parties hereto relating to the subject matter hereof. In entering into this Agreement neither party has relied on any representation made by the other party unless such representation is expressly included herein. Nothing in this clause 18 shall relieve either party of liability for fraudulent misrepresentations and neither party shall be entitled to any remedy for either any negligent or innocent misrepresentation except to the extent (if any) that a court, arbitrator or expert appointed under clause 22 may allow reliance on the same as being fair and reasonable.
This Agreement shall be binding upon and enure for the benefit of the successors in title of the parties hereto.
The Customer shall not be entitled to assign this Agreement nor all or any of its rights and obligations hereunder.
the Provider shall be entitled to sub‑contract the whole or any part of its obligations hereunder to any third party but shall remain liable as if it were performing the Services itself.
22.1 All disputes or differences which shall at any time hereafter arise between the Provider and the Customer in respect of the construction or effect of this Agreement or the rights duties and liabilities of the parties hereunder or any matter or event connected with or arising out of this Agreement (a 'Relevant Event') shall be referred to such independent third party (the 'Third Party') as the Provider and the Customer shall jointly nominate.
22.2 If the Provider and the Customer shall fail to nominate a Third Party within 14 days of the date of occurrence of the Relevant Event then the Third Party shall be nominated at the request of either the Provider or the Customer by the President for the time being of the British Computer Society.
22.3 The Third Party shall act as an expert and not as an arbitrator whose decision (including as to costs) shall, except in the case of manifest error, be final and binding upon the Provider and the Customer.
This Agreement shall be governed by and construed in accordance with English law and (subject always to clause 22) the parties submit to the exclusive jurisdiction of the courts of England and Wales.