(a)In these conditions “Incognate” means Incognate Limited of 6a St Andrews Ct, Thame OX9 3WT (Company No. 05299587)
(b) “Associates” means [individual, business, sole trader, partnership, or corporate body] who Incognate may from time to time engage to fulfil a contract for the client and/or to perform hereunder.
(c) “Contract” means a contract for the supply of consultancy or services between Incognate and the Client whether created by means of the Client asking verbally, with a purchase order number, or by email or by fax or by letter for the performance of Services by Incognate and which contract has been accepted and confirmed by Incognate in writing.
(d) “Client” means a person; firm; partnership; LLP; company or any other entity that orders and enters into a contract with Incognate for the supply of services and/or consultancy.
(e) “Services” means any services performed by Incognate (or its Associates on its behalf) which are either wholly or partly comprised in a contract between Incognate and the client as defined herein.
Except as varied by the specific terms of any quotation by Incognate, these conditions comprise the terms and conditions under which Incognate is willing to supply and perform Services to the Client. Unless otherwise agreed in writing by Incognate all contracts are entered into upon the basis of these conditions to the exclusion of any other terms and conditions set out or referred to in a document or other communication (whether written or verbal) used by a Client in concluding a contract, and whether these conditions are issued before or after the issue of such other terms.
Incognate warrants it shall perform its services with reasonable care and skill using persons of appropriate expertise.
(a) In certain circumstances, Incognate reserves the right to source one or more Associates to perform Services to the Client provided that the services shall be deemed to be performed by Incognate and pursuant to the terms herein.
(b) Incognate reserves the right to use persons other than its employees to perform services. Incognate accepts full responsibility for the work done by such persons in accordance with these conditions.
(c) If within a period of 6 months after the completion or termination of the Contract (or any subsequent Contract) the Client contracts directly (or indirectly through another) with any Associate with whom the client has had dealings under the Contract with Incognate for the provision of any services of a type identical or similar to the Services supplied by Incognate then the Client shall be liable to Incognate for an introduction fee in a sum equivalent to 25% of the total of the last contract price agreed between the Client and Incognate for the provision of the Services.
(d) The Client acknowledges that the restrictions in sub cause 4 (c) above are necessary to protect the legitimate business interests of Incognate and agrees that none of the restrictions is unreasonably wide in its effect, scope or duration.
The Client shall supply to Incognate all assistance, co-operation and information reasonably required by Incognate in performing and completing the Services, including, without limitation, where services are carried out at the Client’s premises, suitable access and facilities.
(a) The price of the Services shall be at Incognate’s quoted price. All quotations shall lapse after the expiry of twenty-eight (28) days from issue, but may be withdrawn at any time before acceptance by the Client.
(b) Incognate may charge for extra time at its prevailing consultancy daily rate for a prolongation of the contract due to circumstances beyond Incognate’s control where consultancy charges have been fixed (either wholly or in part) by the parties based upon an understood time frame.
(c) The Client shall reimburse Incognate for out of pocket expenses reasonably incurred in the proper provision of the Services provided that the basis used to calculate such expenses has been agreed in advance by both parties.
d) All Incognate’s prices are quoted net of VAT, which shall be specified on Incognate’s invoice(s) to the Client. VAT will be at the rate of 20% or such other rate as prevails from time to time.
(e) Standard payment terms are that payment falls due 30 days from the date of invoice(s) unless varied in writing with the client or as outlined in the contract payment schedule for larger projects.
(f) Any payment returned by the Client’s bank will incur a £30 administration charge which will be invoiced and added to the total outstanding debt owed by the client.
(g) Unpaid invoices will incur an additional administration fee of £30 in respect of each reminder letter or email sent, which demands payment.
(h) Without prejudice to Incognate’s rights to claim interest under statute the contractual rate of interest shall be the greater of 10% per annum or 5% over the base rate of HSBC Bank plc prevailing at the date of default in payment.
All and any costs, claims charges and fees (including for the avoidance of doubt legal costs) incurred by Incognate in collection of its fees from the Client (whether litigation ensues or not) shall be added to the debt owed by the client under the invoice(s) for which the Client agrees to indemnify and pay to Incognate on the ‘solicitor/own client’ basis and in any event in the sum actually incurred by Incognate.
(i)Time for payment of Incognate’s invoices shall be of the essence of the contract to which payment relates.
(a) Incognate shall use its reasonable endeavours to deliver and/or perform the Services to the Client by the date agreed, if any, but shall not be liable for any costs or damage caused by late or non-delivery.
(b) Any delay in delivery and/or performance of the Services shall not give the Client a right to rescind or treat the contract as repudiated, unless the same is specifically provided by written and agreed conditions between the parties.
(c) Incognate shall have no obligation to perform any work or undertake any activity, which does not comprise part of the Services. If the Client requests and Incognate agrees to perform any such extra work, such work will be charged at Incognate’s then prevailing rates or as agreed between the parties.
(d)Incognate shall not be liable for any loss of income or contracts or for any indirect consequential loss or damage of any kind howsoever arising and whether caused by the negligence of Incognate, its breach or non-performance of any of its obligations under a contract with the Client or otherwise.
(e) Incognate’s liability under any contract shall in no circumstances exceed the total cost of the price agreed between the parties for the contract to which the alleged liability relates.
(f) Nothing in these conditions shall exclude or in any way limit Incognate’s liability for death or personal injury caused by its negligence.
(g) These conditions set out in full the extent of Incognate’s obligations and liabilities in respect of the supply the Services to the Client. In particular there are no conditions, warranties, or other terms, express or implied that are binding on Incognate except as specifically stated in these conditions. Any condition, warranties, or other terms concerning the supply of goods and/or services which might otherwise be implied into or incorporated within these conditions, whether by statute, common law or otherwise are hereby excluded.
(h) Incognate shall not be liable for any loss or damage suffered or incurred by the Client arising from Incognate’s delay or failure to fulfil or otherwise discharge any of its obligations under a contract with the Client to the extent that such delay or failure is caused by any non-performance of contract by the Client; a sudden or substantial depletion of Incognate’s staff or its Associates; force majeure or any other cause or circumstance beyond Incognate’s reasonable control.
(i) The Client shall indemnify Incognate in respect of any infringement or alleged infringement of any intellectual property rights belonging to a third party arising from the Client’s possession or use of or dealing in all and any property to which such rights may attach.
(a) Incognate may cancel any contract with the Client immediately at any time by written notice to the Client if the Client commits a material breach of such contract or becomes insolvent or bankrupt, has an Administrator; receiver or manager appointed of the whole or any part of its assets or business; makes any composition or arrangement with its creditors, takes or suffers any similar action in consequence of a debt or an order or resolution is made for administration, dissolution liquidation or the like.
(b) Cancellation by Incognate shall be entirely without prejudice to any other rights that Incognate may have under these conditions.
(c) Incognate or the Client may terminate this agreement by providing one month’s written notice by letter or e-mail at which time Incognate will supply the Client with an account and invoice for that portion of the work carried out by Incognate up to the date of such cancellation (at the relevant daily rate) and the Client shall make an immediate payment in full of that amount to Incognate provided that it is not Incognate’s usual practice to serve notice of termination without just cause.
(d) Termination of any contract to which these terms apply shall not affect the accrued rights of either of the parties arising in any way out of these terms as at the date of termination and in particular but without limitation the right to recover damages against the other and all provisions which are expressed to survive this Agreement shall remain in force and effect.
The Parties shall not at any time disclose to any person or use for their own purposes (other than in the course of performance under the Contract) any confidential information that it may have or gain about the other although this restriction shall not apply to any such information coming into the public domain
All and any work produced by Incognate as part of the Services capable of acquiring intellectual property rights remains the property of Incognate (including such rights) until it is fully paid for by the Client. Once the payment has been made (which means cleared funds) received by Incognate, title and property in the work shall pass to the Client unless otherwise agreed in writing between the parties.
(a) If any provision of these terms and conditions is held invalid, illegal or unenforceable for any reason, such provision shall be severed and the remainder of the provisions hereof shall continue in full force and effect as if the terms had been executed with the invalid provision eliminated.
(b) Without prejudice to Incognate’s rights under clause 4 above, neither party shall assign, transfer, sub-contract or in any other manner make over to any third party the benefit and/or burden of this Agreement without the prior written consent of the other.
(c) No failure to delay on the part of either party thereto to exercise any right remedy under these terms shall be construed or operated as a waiver thereof nor shall any single or partial exercise of any right or remedy as the case may be. The rights and remedies provided in this Agreement are cumulative and are not exclusive of any rights or remedies provided by law.
(d) These terms and conditions shall be governed construed and shall take effect in accordance with the laws of England and shall be subject to the exclusive jurisdiction of the English courts.
(e) No rights shall accrue to any third party under this agreement pursuant to The Contracts (Rights of Third Parties) Act 1999
(f) The headings in this Agreement are inserted only for convenience and shall not affect its construction.
(g) Where appropriate the words denoting a singular number only shall include the plural and vice versa.