Terms and Conditions
Terms and Conditions
- Illumind Digital is in the business of providing its clients with outplacement or outsourcing services, including the placement of remote contractors. The primary area of business for Illumind Digital (but not limited to) providing design and development resources for website publishing, designing, development and software application development, mobile application development, IT Support services, cloud hosting infrastructure, quality Analysis (QA). Illumind Digital also specialises in providing E -marketing solutions such as SEO, SMM, PPC, Data Analysis, Reporting and research.
- The office is located at – 162 Lynton Road, Harrow, HA2 9NL, United Kingdom.
- The Client has asked, or is considering asking, Illumind Digital to offer its services to The Client for the placement of contractors.
- Illumind Digital will provide the Services to The Client on the terms and conditions of this Service Agreement.
- This agreement will be governed by and construed in accordance with British laws of England and Wales.
- The client is allocated dedicated resource(s) along with the necessary functional and support staff such as a team leader and a project manager. The client will not attempt to engage in business with current or ex-staff on a personal basis. Contravention of this will lead to legal proceedings involving all parties. All Illumind Digital employees have confidentiality clauses in their employment contract and have signed non-disclosure agreements.
- The resource(s) would be operating out of the Indian office of Illumind Digital, unless the resource is operating onsite or from our UK / US offices or at client’s offices. The Indian office operates Monday – Friday, 10 AM to 7:00 PM (India’s time zone is GMT + 5:30 / BST +4.30). All the public holidays are notified in advance and communicated by the development team directly; the holidays are generally compensated by working extra hours in the evenings, at weekends or as per the agreed time schedule with the client.
IT IS AGREED AS FOLLOWS:
1.DEFINITIONS AND INTERPRETATION
Schedule 1 sets out the Definitions and Interpretation rules for this Service Agreement.
2.DAY TO DAY OPERATION OF THIS AGREEMENT
2.1 The processes by which The Client may engage Illumind Digital, make a Request for Services, select an appropriate Illumind Digital Employee and perform other day-to-day activities pursuant to this Contract are set out within the terms and conditions on Illumind Digital’s website, which by incorporation forms part of this Service Agreement
2.2 The Client acknowledges and agrees that by entering into this Agreement with Illumind Digital, this Agreement does not create, establish or otherwise constitute an employment relationship or agreement with Illumind Digital. The Client assumes all liability for the proper classification of the Illumind Digital Employee as independent contractors based on any applicable local guidelines. This Agreement does not create a partnership or agency relationship between The Client and the Illumind Digital Employee who does not have any authority to enter into written or oral (whether implied or express) contracts on behalf of The Client.
2.3 During the project / agreement whilst they are contracted to each other, and for a period of five (5) years afterward from the date of this agreement, Illumind Digital and the client will not directly or indirectly participate in a business with their contacts or employees now or later operated by them in all countries throughout the globe. In particular, they or their representatives will not:
- solicit or attempt to solicit any business or trade from their actual or prospective customers.
- employ or attempt to employ any employees of each other.
- divert or attempt to divert business away from each other, or
- encourage any independent client, consultant, or business to compete with each other.
- encourage any independent client, consultant, or business to end a relationship with each other.
2.4 Both the parties undertake to disclose the information including “confidential information” only to a minimum number of its employees who need to have the information disclosed to them only on a “need-to-know” basis and to ensure that the obligations on use and disclosure of the information are observed by all of the said employees.
2.5 During the course of the “project” it is the client’s responsibility to provide all (but not limited to the following) the relevant information, content, pictures, previous code etc… in order to make the project technically feasible and viable – in the absence of the above or any other relevant material Illumind Digital will use freeware / shareware material as deemed fit.
2.6 Illumind Digital will not be held responsible in case the client insists on using a particular “copyrighted” material – Illumind Digital would assume that the client has taken care of the legal and copyright implications of using the same and once the final payment and or the website has been made “live” it is deemed that the client has given the go ahead to use the above mentioned material at its own risk and consequences.
2.7 If during the course of the work the client is unable to provide us with necessary information, materials or feedback in a timely manner when requested (within 24 hours) it could become necessary to reschedule the team / resource to other projects while we are waiting. Any delay in re-allocating resources off the project during these waiting periods will be taken from the allocated project time. If we request materials, information, decisions, or approvals from you that we need to complete the work, and you do not provide them within thirty days of our request, we will deem the work to be completed and all payments due.
2.8 Existing sites – Work done on an existing site is done on an unseen basis: Due to the nature of existing sites (sites already finished or part finished by a third party) we cannot predict code integrity. We undertake this work on the understanding that we will research and develop the existing code, but we make no guarantees that the previous work is a suitable framework for us to work with.
2.9 Back-up, it is the client’s responsibility to ensure they have a back-up of the work. We recommend taking back-ups of the work at all stages (we recommend an automated scheduled back-up, which can be set-up alongside any work by our server technicians). Live servers, all development work takes place “off-site” on a Sandbox environment provided by us. On occasion, it may be requested that development takes places on live servers (time constraints, upon client request, licensing reasons for example). This is done so at your own risk. We do not take responsibility for any impact this may have to either the live site or your ability to work. We strongly recommend the use of a Sandbox server.
3.1 This Service Agreement will commence on the Commencement Date and will continue on a month to month term until terminated in accordance with clause 12.
4.1 The Client must pay Illumind Digital for the Services in the amounts and at the time set out in Schedule 1 and upon such terms and conditions on Illumind Digital’s website which by incorporation forms part of this Service Agreement.
4.2 The provisions of Schedule 1 forms part of and are operative under this Contract.
(a)After the receipt of final payment, the client will own the specific instances of all code we produce for you but not the algorithms, techniques, methods, or trade secrets we use to produce it and which belong to Illumind Digital.
(b)Payment Terms – Projects running on a dedicated basis: 100% in advance at the time of issue of the Work Order (WO). This applies to Daily rated projects, Weekly rated projects, On-going Time & Materials projects, and projects running on the Illumind Digital “Bucket System”.
5 NO ILLUMIND DIGITAL LIABILITY
5.1 Illumind Digital is not liable for any loss, damage, costs or compensation (whether direct or indirect) which may be suffered by The Client, or for which The Client may become liable, arising from:
a) the introduction by Illumind Digital of Illumind Digital Employee s to The Client (or any delay in such introduction);
b) the failure of any Illumind Digital Employee to accept an offer of an Assignment; or
c) the performance of any Illumind Digital Employee who accepts an Assignment with The Client.
6 THE CLIENT’S INDEMNITY TO ILLUMIND DIGITAL
6.1 The Client indemnifies Illumind Digital in respect of losses, liabilities or claims arising from or related to:
(a) any acts and omissions of any Illumind Digital Employee when performing his or her obligations during an Assignment with The Client;
(b) any injury suffered by (including death of) a Illumind Digital Employee because of that Illumind Digital Employee performing his or her obligations; and
(c) any damage to property because of the performance of any obligations by a Illumind Digital Employee.
6.2 The Client indemnifies Illumind Digital in respect of any claims by a Illumind Digital Employee arising from the termination of the Illumind Digital Employee Assignment by The Client and/or any breaches of laws applicable in any jurisdiction in which the Illumind Digital Employee may operate or provides the Services.
Illumind Digital has the right to remove any Illumind Digital Customer’s files at any moment, and to cancel any login without prior notice. It is the sole responsibility of the Illumind Digital Customer to keep a copy of the Content uploaded on Illumind Digital Online Project Management Area. Illumind Digital does not assume any responsibility in case of partial or total loss of the User’s material. Although Illumind Digital is not obliged to pre-screen and screen the files uploaded by Users, Illumind Digital reserves the right to access any account and any file, without prior notice, in order to verify the Users’ compliance with the Terms and Conditions. Personal data provided to Illumind Digital remain the Illumind Digital Customer’s property. The Illumind Digital Customer allows Illumind Digital to collect and use this information for both operational and marketing purposes. Illumind Digital agrees not to distribute this information to any third parties, unless specifically required to by Law, or unless give specific permission by the Illumind Digital Customer.
7 INTELLECTUAL PROPERTY RIGHTS
7.1 Each party reserves all its proprietary rights in its Confidential Information and no rights or obligations, other than those expressly recited herein, are granted or to be implied. In particular, no license is hereby granted directly or indirectly under or in respect of any invention, discovery, patent, copyright or any other intellectual property right now or in the future held, made, obtained or licensable by the Disclosing Party. The property in all Confidential Information disclosed pursuant to an agreement / contract / project shall, subject to any right of any other owner, remain with the original owner / party.
7.2 Use of Intellectual Property: Each party acknowledges that the other party owns or licenses Intellectual Property related to its or its affiliates’ existing business and such Intellectual Property may be used and further developed in the course of this Agreement. Each party understands that the other party intends to continue to develop and commercially exploit its own Intellectual Property during and after the term of this Agreement.
7.3 Prior Intellectual Property Rights: All Intellectual Property rights owned by a party as of the Effective Date (“Prior IP”) shall remain the property of such party and no licenses or other rights with respect to such Intellectual Property are granted to the other party except as expressly set forth in an agreement or a later agreement. Each party shall have the burden of proof concerning the Intellectual Property it claims as its Prior IP
7.4 Developed Intellectual Property for clients: All right, title and interest of every kind and nature, whether now known or unknown, in and to any Intellectual Property created, written, developed, furnished or produced by us during the term of the agreement / project, whether alone or jointly with others and whether or not during work hours, that are within the scope of the agreement or any applicable Statement of Work shall be the exclusive property of the client (subject to the other conditions and specifically the payment of all the dues). As used herein, the term “Intellectual Property” shall include, without limitation, any inventions, technological innovations, discoveries, designs, formulae, know-how, processes, patents, trademarks, service marks, copyrights, computer software, ideas, creations, improvements to all such property, and all recorded material defining, describing or illustrating all such property, whether written or not and whether stored in plain or in code form.
8 INTELLECTUAL PROPERTY
8.1 All material prepared by the Illumind Digital Employee during the term of this Contract arising out of or concerning the Services (“the Contracted Material”) shall be the sole property of The Client and the ownership of and any Intellectual Property Rights subsisting in any such work shall vest in The Client. All information relating to The Client’s customers, users, and in particular and without limitation, customers, user of Client’s site, and all rights associated with such information are the exclusive property of The Client
8.2 On termination of this Contract, the Illumind Digital Employee will immediately deliver any material, software or hardware given by The Client to Illumind Digital so that Illumind Digital may return them to The Client subject to payment of freight changes by The Client.
8.3 Illumind Digital, the Illumind Digital Employee and The Client acknowledge and agree that they cannot to use, re-use, distribute, publish, license, sub-license, reproduce, create derivative work, copy, supply or communicate any Intellectual Property Right which belongs to the other party except as required by law.
The parties (including the Illumind Digital Employee) agree that they will handle all Personal Information in accordance with the Privacy Laws, and that they will use Personal information solely for the purpose of carrying out their respective obligations pursuant to this Contract.
10 CONFIDENTIAL INFORMATION
10.1 During the term of the project, each party (the “Disclosing Party – client”) may provide the other (the “Receiving Party – Illumind Digital”) with certain confidential and proprietary information (“Confidential Information”). Confidential Information includes, without limitation, business methods, plans, systems, finances, projects, trade secrets or provision of products or services to which it attaches confidentiality or in respect of which it holds an obligation to a third party, the terms of the Agreement, customer contracts, work product, any written information which is marked “Confidential” and any information which is orally disclosed, identified as confidential at the time of disclosure and confirmed in writing as being confidential within 30 days thereafter. However, “Confidential Information” will not include information that (a) is publicly known at the time of its disclosure, (b) is lawfully received by the Receiving Party from a third party not under an obligation of confidentiality to the Disclosing Party, (c) is published or otherwise made known to the public by the Disclosing Party, or (d) was generated independently by the Receiving Party before disclosure by the Disclosing Party. The Receiving Party will likewise restrict its disclosure of the Disclosing Party’s Confidential Information to those who have an absolute “need to know” such Confidential Information in order for the Receiving Party to perform its obligations and enjoy its rights under this Agreement. Such persons will be informed of and will agree to the provisions of this Section, and the Receiving Party shall remain responsible for any unauthorized use or disclosure of the Confidential Information by any of. Upon termination of the Project / Agreement for whatever reason both Parties shall deliver to the other Party all working papers or other material and copies thereof provided to it or prepared by it either in pursuance of this Agreement or otherwise.
10.2 Illumind Digital and the Illumind Digital Employee warrant and undertake not to disclose, use or otherwise deal with any Confidential Information regarding The Client except: 1. for the purpose of providing the Services; 2. when required to do so by law; or 3. with the prior written consent of the Client.
10.3 Confidential Information shall include, but not be limited to, any information, which relates to the business, processes, operation, methodology, communications, information, techniques, services, pricing, strategies, programming or research or any information that Illumind Digital or the Illumind Digital Provider acquired during the term of this Contract.
10.4 On the termination of this Contract, or earlier if required to do so by either party, the Illumind Digital Employee shall return to the Client any material containing Confidential Information then in his or her possession, or destroy or delete any copies of such material in his or her possession. Illumind Digital Employee must carry out an immediate hand over of all existing tasks.
10.5 Subject to Clause 10.6, the Parties may only disclose any Confidential Information where disclosure is required by law or by any notice, order or regulation of any regulatory authority (a ‘Disclosure Obligation’).
10.6 When a Disclosure Obligation occurs:
(a) The Party that is subject to the Disclosure Obligation must inform the other party in writing of any disclosure required by a Disclosure Obligation before or, if this is not practical, as soon as the disclosure is made.
(b) The Party that is subject to the Disclosure Obligation must use reasonable endeavours to (and assist the other Party to) restrict distribution of the Confidential Information disclosed and otherwise take all reasonable steps to preserve the confidentiality of the Confidential Information the subject of the Disclosure Obligation.
(c) The parties must consult with each other and endeavour to agree the content of any announcement the Party that is subject to the Disclosure Obligation is required to make (to the extent practical within the requirements of the Disclosure Obligation).
(d) The Party that is subject to the Disclosure Obligation must not, without the prior written consent of the other Party, take (or omit to take, or procure, suffer, or permit to be taken) any action as a result of which it may become subject to a legal obligation to disclose Confidential Information, except for actions which necessarily arise in connection with the this Agreement.
Each party represents and warrants to the other party that:
(a) there are no actions, claims, proceedings or investigations pending or threatened against it or by it of which it is aware, and which may have a material effect on the subject matter of this Contract.
(b) it has all licences, authorisations, consents, approvals and permits required by all applicable laws and regulations in order to perform its obligations under this Contract, and otherwise complies with all laws and regulations applicable to the performance of those obligations;
Any party may terminate the services / contract / agreement in writing by providing notice.
12.1 A party (“the first party”) may immediately (or with effect from any later date it may nominate) terminate this Contract by written notice to the other party if:
(a) the other party materially breaches this Contract or any other Contract between the parties and fails to remedy such breach within 5 Business Days of receipt of notice from the first party specifying the breach and requiring it to be remedied;
(b) a receiver, controller, liquidator, administrator or other like person is appointed for the whole or substantially the whole of the other party’s assets, undertaking or business;
(c) a mortgagee or charge enforces a security held in respect of the whole or substantially the whole of the other party’s assets undertaking or business;
(d) a scheme of arrangement between the other party and its creditors is entered into; or
(e) the other party becomes insolvent or is otherwise unable to pay its debts as and when they become due.
12.2 Subject to The Client complying with the provisions set out in Schedule 1, The Client may appoint the Illumind Digital Employee on a trial basis which is a minimum of 1 hour and a maximum of 10 days. During the trial period The Client may terminate the Illumind Digital Employee immediately or at the end of the trial period subject to The Client pre-paying for the period that the Illumind Digital Employee has worked for The Client.
12.3 Subject to The Client complying with the provisions set out in Schedule 1, if The Client appoints the Illumind Digital Employee other than on a trial basis, The Client may terminate the Illumind Digital Employee in the following manner:
(a) if the Illumind Digital Employee has been appointed by The Client for less than 6 months from his or her appointment, a period of 30 days’ notice is required;
(b) if the Illumind Digital Employee has been appointed by The Client for more than 6 months, a period of 60 days’ notice is required;
(c) Notice period for large projects is 3 months & 2 months for small to medium sized project. Illumind Digital has the right to “define” the “type” of a project. Third party services might require additional time.
12.4 Provisions of this agreement that are capable of having effect will survive its termination.
12.5 The expiry or termination of this Contract will not affect or limit any accrued rights of the parties.
12.6 Upon termination:
(a) The Client will return to Illumind Digital all Illumind Digital’s Confidential Information, copies of Illumind Digital’s Intellectual Property Rights and any other property Illumind Digital has provided to The Client during the Contract; and
(b) Illumind Digital and/or the Illumind Digital Employee will return to The Client all The Client’s Confidential Information, copies of The Client’s Intellectual Property Rights and any other property The Client has provided to Remove Staff and/or the Illumind Digital Employee during the Contract.
The Client accepts the scope, terms and conditions of this Contract and as set out within the terms and conditions on Illumind Digital’s website at www.illuminddigital.co.uk, which by incorporation form part of this Contract by:
(a) The Client making a Request for Services; or
(b) The Client appointing Illumind Digital to provide services to The Client; or
(c) The Client selecting a Illumind Digital Employee; or
(d) The Client making a payment of any amounts listed within Schedule 1, including but not limited to set up fees, monthly fees and/or any payment of Illumind Digital invoices (whichever is the earliest); or
(e) The Client indicating its acceptance electronically or in any other format provided by Illumind Digital.
SCHEDULE 1 -FEE STRUCTURE
- In case of payment not received as per the terms set out above, Interest would be charged on the outstanding amount at the rate of 1.5 % per month.
- Payments for time worked are not refundable if the work is cancelled before completion.
- A man-month would be defined as 160 Hrs of work in a month.
- When a developer(s) is working on a dedicated basis, they are allocated for 40 hours per week, 160 hours per month etc. This time includes design, programming, testing and time spent awaiting feedback requested by the developer(s) to the client.
- If the total man-hours logged by a resource are more than 15% over the hours defined above, then the Management of Illumind Digital reserves the right to charge the client for the additional man-hours.
- When Illumind Digital undertake projects on a time and materials basis. All fees are estimated and exclusive of VAT or any other taxes as may be applicable, estimates are valid for 30 days from the date of issue. The Payment terms are generally based on prior weekly or monthly bookings which are allocations of the developer resources unless agreed otherwise.
Payment of the advance / first invoice is an acceptance of the above terms and conditions.
Regular Billing System
1.If The Client selects and appoints a Illumind Digital Employee:
(a) after an initial period has been completed; or
(b) pursuant to the Request for Services
then The Client must use the Regular Billing System.
2 The Regular Billing System applies to The Client who selects and appoints the Illumind Digital Employee on an exclusive basis on monthly rates.
3 The Client must pay Illumind Digital for the Services in advance by using either of the following 2 options:
(a) prepaid payments
(b) regular monthly payments
Via – Credit Card Online Payment, Direct Debit of Credit Cards and Bank Accounts, Electronic Fund Transfer.
4 Each payment under the Regular Payment Option is to be made in advance or on an agreed fixed monthly date
5 The Clients are able to make payments via electronic fund transfer (EFT) into Illumind Digital’s INR bank accounts.
6 If there are any overtime payments due on Regular Monthly Payments, the amount of overtime chargeable to The Client will be included in the following month’s invoice.
7 The Client at any time may request a refund of the amount held in the Client’s Available Balance subject to a 2-week refund processing period.
(a) the Available Balance falls below zero; or
(b) The Client does not make any payment under the Prepaid Payment Option and/or the Regular Monthly Payment Option,
Illumind Digital is entitled to suspend the services of the Illumind Digital Employee for a period of 5 Business Days (“Suspension Period”)
9 During the Suspension Period, The Client must pay to Illumind Digital any amount in arrears or required to maintain the Available Balance otherwise Illumind Digital is entitled to terminate the Contract.
10 The Illumind Digital Employee is entitled to request leave on public holidays of his or her location.