1.1 These Conditions shall apply as between Articulate (London) Ltd, a limited company whose registered office is at Hikenield House , East Anton Court, Icknield Way, Andover, SP10 5RG, and the Client in respect of the Services provided under the Contract.
1.2 In these Conditions the following words and phrases shall have the following meanings unless the context requires otherwise:
“Additional Services” any other services other than the Services agreed to be provided by Articulate to the Client on agreed terms and set out as such in the Services Sheet or specification;
“Charges” Articulate’s charges as set out on the Charges Sheet or the Contract from time to time for the provision of the Services unless otherwise expressly agreed with the Client;
“Charges Sheet” the sheet or document setting out the applicable Charges in respect of the Services;
“Articulate Material” any Documents or other materials, and any data or other information provided by Articulate in connection with or relating to the Services;
“Client” the person, company, firm or entity being party to the Contract and to whom the Services are provided;
‘Confidential Information‘ all and any information (including information of whatever nature relating to the technology, financial or business as a result of the Contract.
“Contract” the contract between Articulate and the Client (in whatever form) for the provision of the Services to which these Conditions are appended and incorporated;
“Client Material” any Documents or other materials, and any data or other information provided by the Client relating to the Services;
“Documents” includes, in addition to a document in writing, any map, data, plan, graph, drawing or photograph, any film, negative, tape or other device embodying visual images and any disc, tape or other device (electronic or otherwise) embodying any other data;
“Services” the services agreed to be provided by Articulate to the Client and set out in the Services Sheet (and the “Services” shall include the Additional Services where the context admits) and/or Contract and may include any or all of the following services: consulting, copy writing services, proofreading services, training services and presentation preparation services.
“Services Sheet” the brief, specification or document setting out the Services agreed to be provided under or pursuant to the Contract;
“Term” the period from the start date to the end date (being and including any minimum or initial period for the provision of the Services) as set out or agreed under the Contract and continuing thereafter in full force and effect unless terminated in accordance with the provisions of these Conditions;
“VAT” value added tax.
2.1 The Client pursuant to the Contract engages Articulate to provide the Services to the Client and Articulate agrees to provide the Services for the Term subject to these Conditions with reasonable care and skill.
2.2 All proposals made, quotations given, instructions accepted and contracts entered into by Articulate with any person for the supply of the Services are subject to these Conditions to the exclusion of any other terms and conditions subject to which the Contract is accepted or purported to be accepted by the Client. Any changes or additions to the Services or these Conditions must be agreed in writing by Articulate.
2.3 Unless otherwise agreed by the parties in writing, the Client shall at its own expense supply Articulate with all necessary Documents or other materials, and all necessary data or other information relating to the Services, within sufficient time to enable Articulate to provide the Services in accordance with the Contract and the Conditions. The Client shall ensure the accuracy of all Client Material and clarity of any instructions.
2.4 The Services shall in so far as is reasonably practicable be provided in accordance with the specification (if any) but subject to these Conditions and shall be performed at such times as the Company shall in its sole discretion decide and during its normal business hours (09.00 to 18.00 Monday to Friday) excluding United Kingdom public holidays.
2.5 Articulate may at any time without notifying the Client make any changes to the Services which are necessary to comply with any applicable statutory requirements, or which do not materially affect the nature or quality of the Services.
2.6 The Client shall afford to Articulate all reasonable co-operation in all matters relating to the performance of Articulate’s obligations under the Contract. In particular but without limitation to this Clause, the Client shall:
2.6.1 provide Articulate, its agents, sub-contractors and employees, in a timely manner and at no charge with all such Client Material and other information as Articulate may reasonably request under the Contract;
2.6.2 where requested by Articulate, review and provide feedback on all materials prepared by Articulate in accordance with the Contract or within seven days.
2.7 Articulate may elect to suspend the provision of Services if the Client is in breach of the provisions of the Contract and these Conditions and may at its entire discretion first serve notice of its intention to suspend provision of the Services and allow the Client seven (7) days to remedy such breach failing which the Services shall be suspended upon notice without prejudice to the payment obligations and liability of the Client.
3.1 Unless otherwise specified in the Charges Sheet, Articulate’s Charges for the relevant Services are due and payable within thirty (30) days of the date of invoice and will be made in full and cleared funds to the bank account nominated in writing by Articulate in GBP pounds sterling.
3.2 All Charges and sums quoted (unless otherwise specified) are exclusive of any VAT, for which the Client shall be additionally liable at the applicable rate from time to time.
3.3 If the Charges are not paid by the due dates, interest shall accrue on the unpaid portion of the Charges at the rate of 5 per cent per annum above the base rate from time to time of Coutts & Co Bank from the time when they become due until the date of payment. If any payments remain outstanding for 30 (thirty) days or more, the Client’s access to the Services may be suspended. The Client agrees to pay all fees incurred by Articulate in collecting outstanding Charges or sums.
3.4 Subject to any special terms agreed in writing by the parties, the Client shall pay the Charges and any expenses together with such additional sums which are agreed between Articulate and the Client for the provision of the Services and any Additional Services or which, in Articulate’s sole discretion, are required as a result of the Client’s instructions or lack of instructions, the inaccuracy of any Client Material or any other cause attributable to the Client.
3.5 In the absence of agreement, Articulate’s standard charges and rates shall apply. Articulate shall be entitled to vary its standard Charges from time to time by giving not less than fourteen (14) days’ written notice to the Client.
3.6 The Client shall reimburse Articulate for all out of pocket expenses, travel costs and expenses, operating costs, and disbursements incurred by it in connection with the Services.
4.1 The property, copyright and any other intellectual property rights in any Client Material shall belong to the Client.
4.2 Unless otherwise agreed in the Services Sheet, the property, copyright and any other intellectual property rights in the Articulate Material shall belong to Articulate, subject only to the right of the Client to use the Articulate Material during the Term.
4.3 The Client represents to Articulate and unconditionally guarantees that any elements of text, graphics, photos, designs, trademarks, information or other copyright work including any intellectual property rights contained in the foregoing and provided to Articulate for the Services are owned exclusively by the Client, or that the Client has permission from the rightful owner to use such material, and will indemnify Articulate and its sub-contractors from any claim, liability or suit arising from the use of such elements or materials furnished by the Client.
4.4 The Client confirms and authorizes Articulate to access and use the Client’s data, database and materials in respect of the project and provision of the Services. The Client shall indemnify Articulate on a full indemnity basis against any loss, damages, costs, expenses or other claims arising from any infringement resulting from use of the information supplied.
4.5 The Client warrants that any Client Material and its use by Articulate for the purpose of providing the Services will not infringe the copyright or other rights of any third party. The Client shall indemnify Articulate against any loss, damages, costs, expenses or other claims arising from any such infringement.
The Client is responsible for ensuring that any “Personal Data” (as defined by the Act) it supplies to Articulate has been collected within the terms of the Data Protection Act 1998. Articulate agrees to process the data in accordance with lawful and reasonable written instructions provided by the Client.
6.1 Articulate and the Client will work together to complete the relevant project in a timely manner. Articulate agrees to work expediently to provide the Services on the agreed terms and no later than the agreed date in respect of the Contract. The parties shall agree the relevant sign off and acceptance for the Services in accordance with Articulate’s standard procedures.
6.2 The Client shall be deemed to have accepted the work in relation to the project and/or Services if they have not been rejected on or before the fourteenth (14th) day after completion (where applicable).
6.3 Articulate shall use reasonable endeavours to meet any performance dates specified in the Services Sheet but any such dates shall be estimates only and time shall not be of the essence in respect of the performance of the Services.
7.1 The tangible work product specifically produced by Articulate for the Client including the business and marketing plan, creative designs, and copy or artwork, mechanical art, illustrations, photographs, letters, brochures, mailing packages and advertisements, shall be the sole property of the Client. Articulate agrees that such work product may not be provided to a third party without the express written consent of the Client.
7.2 Save as otherwise provided, any intellectual property in any Client database shall belong to the Client, and the intellectual property in any software, specifications, material, procedures, data or intellectual property of Articulate used in the preparation of or which is embedded within the material produced by Articulate shall remain the property of Articulate.
7.3 All confidential information, copyright works, database rights, toolsets, inventions and patent rights and all other intellectual property rights subsisting at the commencement of the Services and which may be utilised by either party in the course of performing the Services or the project shall remain the property of the originating party.
7.4 Notwithstanding any provision to the contrary, nothing in these Conditions or in relation to any project or the provision of Services shall deprive Articulate or grant the Client rights to any of Articulate’s research, business name, domain name, web-site content, know-how functionality or methodology document, supplementary knowledge and design or technology process including as used by Articulate in its general business or for its database management business.
7.5 In the event that new inventions, designs or processes evolve in performance of the Services or as a result of the Contract, the Client acknowledges that the same shall be the property of Articulate unless otherwise agreed in writing by Articulate.
8.1 The entire liability of Articulate to the Client under or in connection with the Contract and these Conditions (whether in respect of the provision of the Services, damages, breach, indemnity or otherwise) shall not in any circumstance exceed the amount of the Charges paid by the Client to Articulate for the provision of the Services for the period not exceeding twelve (12) months.
8.2 Articulate shall have no liability to the Client for any loss, damage, costs, expenses or other claims for compensation arising from any Client Material or instructions supplied by the Client which are incomplete, incorrect, inaccurate, illegible, out of sequence or in the wrong form or any other fault of the Client.
8.3 Except in respect of death or personal injury caused by Articulate’s negligence, Articulate shall not be liable to the Client by reason of any representation (unless fraudulent), or any term or any duty for any loss of anticipated savings, business revenues, or profits (whether categorised as direct or indirect) or any indirect, special or consequential loss, loss of goodwill, data and all other such loss (whether or not arising in the normal course of business), or other economic loss or other claims however caused under the Contract or the provision of the Services.
8.4 The Client agrees and acknowledges that the allocation of risk in this clause is fair and reasonable in the circumstances having been taken into account by Articulate in setting the level of Charges and agreeing the extent of Services.
9.1 The Term of the Contract shall be as specified in the Contract by the parties.
9.2 The Contract may be terminated:
9.2.1 by Articulate immediately if the Client commits a material breach of any of the terms of the Contract and (if such breach is capable of remedy) fails to remedy that breach within thirty (30) days of the Client being notified in writing of the breach;
9.2.2 by Articulate immediately if the Client fails to pay any amount due under the Contract on the due date for payment and remains in default not less than seven (7) days after being notified in writing to make such payment;
9.2.3 by either party immediately if the other is unable to pay its debts (within the meaning of section 123 of the Insolvency Act 1986), or becomes insolvent, or is subject to an order or a resolution for its liquidation, administration, winding-up or dissolution (otherwise than for the purposes of a solvent amalgamation or reconstruction), or has an administrative or other receiver, manager, trustee, liquidator, administrator or similar officer appointed over all or any substantial part of its assets, or enters into or proposes any composition or arrangement with its creditors generally, or is subject to any analogous event or proceeding in any applicable jurisdiction.
9.3 Any termination of the Contract pursuant to this clause shall be without prejudice to any other rights or remedies a party may be entitled to under the Contract or at law and shall not affect any accrued rights or liabilities of either party nor the coming into or continuance in force of any provision which is expressly or by implication intended to come into or continue in force on or after such termination.
9.4 On termination of the Contract for any reason, the Client shall immediately pay to Articulate all outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, Articulate may submit an invoice, which shall be payable immediately on receipt.
Articulate shall not be liable for any default (or deemed to be in breach of Contract) by reason of any delay due to any circumstance beyond their reasonable control including without limitation failure of a utility service, default of suppliers or sub-contractors, act of God, war, riot, civil commotion, malicious damage, accident, fire, flood, storm, breakdown of machinery, technical problems, server or connection issues or computer viruses.
During the Term and for a period of six (6) months thereafter (except with the prior written consent of Articulate), the Client shall not induce, solicit or employ (whether as an employee, agent, partner or consultant or any other form of employment or engagement) any employee of Articulate directly associated with the Contract and the provision of the Services or other management of the Contract or any significant part of it.
The parties agree that neither of them shall at any time during or after the Term divulge or allow to be divulged to any person any Confidential Information relating to the business or affairs of the other party to the Contract except as permitted by law or with the other party’s consent.
13.1 Articulate makes no express warranties and specifically disclaims any implied warranties, including any implied warranty of merchantability or fitness for a particular purpose, with respect to the performance of Services under the Contract and these Conditions to the extent permissible by law.
13.2 Articulate does not guarantee, and nothing contained in the Contract or these Conditions shall be construed as a guarantee, that the Services performed or to be performed by Articulate will achieve any projected level of results. Additionally, Articulate does not guarantee, and nothing contained in the Contract or these Conditions shall be construed as a guarantee that the Services will be provided error-free or without omission, interruption, or be completely accurate. Articulate does not give any guarantees regarding the currency or applicability of the Services.
Any notice or other communications to be given under the Contract shall be in writing and may be delivered by hand or sent by first class prepaid recorded delivery post (or if the recipient is in another country by prepaid airmail) to the relevant address(es) stated in the Contract (or to such other address as the addressee may from time to time have notified for that purpose) or sent by facsimile transmission to the relevant number. Communications shall be deemed to have been received, if delivered by hand at the time of delivery, if posted two (2) working days (7 (seven) working days if prepaid airmail) after posting, and if sent by fax transmission, at the date of transmission.
15.1 The parties acknowledge that the Services are not fault free and it may be impaired by matters, conditions or circumstances beyond Articulate’s control and the Client will be entitled to the quality of Service generally provided by Articulate to their customers.
15.2 The Client agrees that (save in respect of statements made fraudulently) it shall have no remedy in respect of any untrue statement upon which it relied in entering the Contract and that its only remedies shall be for breach of contract.
15.3 It is acknowledged that Articulate shall not be liable for breach of contract or any other failure or defect in performance of the Services (or any Additional Services, work or project) which are performed other than by employees of the Company or performed by the Client or its agents or their employees or by any other third parties.
15.4 If any term or provision of these Conditions is held invalid, illegal or unenforceable for any reason by any court of competent jurisdiction, such provision shall be severed and the remainder of the provisions shall continue in full force and effect as if these Conditions had been agreed with the invalid, illegal or unenforceable provisions eliminated.
15.5 Articulate may employ sub-contractors for carrying out any part of the Services.
15.6 These Conditions (together with the terms (if any) set out in the Contract, any Services Sheet or specification and/or Charges Sheet) constitute the entire agreement between the parties, supersede any previous agreement or understanding and may not be varied except in writing between the parties.
15.7 All other warranties, terms and conditions, express or implied by statute or otherwise, are excluded to the fullest extent permitted by law.
15.8 In the event of any conflict between the provisions of these Conditions and the Services Sheet or Charges Sheet, these Conditions shall prevail. In the event of any conflict between the Contract provisions and these Conditions, the parties shall adopt the meaning which best gives commercial efficacy to the Contract having regard to Articulate’s original intention.
15.9 No failure or delay by either party in exercising any of its rights under the Contract shall be deemed to be a waiver of that right, and no waiver by either party of any breach of the Contract by the other shall be considered as a waiver of any subsequent breach of the same or any other provision.
15.10 The parties acknowledge and agree that the Contract shall not establish or constitute any relationship of partnership, joint venture, franchise or agency between the parties and except as otherwise expressly provided or agreed neither party shall have the power to bind the other without the other’s prior written consent.
15.11 The Client shall not assign all or any of its rights or obligations under this Agreement without the written consent of Articulate.
15.12 Except as expressly provided (including in respect of indemnity), the parties do not intend any term of this Contract to create any rights or benefits to any other party other than the parties to the Contract or to be enforceable pursuant to the Contracts (Rights of Third Parties) Act 1999.
15.13 If any provision of the Contract or these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of the Contract or these Conditions and the remainder of the provision in question shall not be affected.
15.14 The Contract and these Conditions shall be governed by the laws of England and Wales, and the Client and Articulate submit to the exclusive jurisdiction of the courts of England and Wales in respect of any dispute arising hereunder.