IRP PAID DEVELOPMENT MARKETPLACE TERMS & CONDITIONS
As part of IRP World (as defined below), IRP Commerce (as defined below) facilitates a marketplace in which Merchants (as defined below) can engage services providers (including IRP Commerce) to provide paid development services for and in connection with the IRP Commerce Cloud.
These terms and conditions (Terms & Conditions) form part of a legal agreement (Agreement), comprising these Terms & Conditions and the Quotation (as defined below) between the Services Provider (as defined below) and You (as defined below) under which the Services Provider agrees to provide, and You agree to take, the IRP Paid Development Services (as defined below). Where IRP Commerce is not the Services Provider, then IRP Commerce joins to this Agreement for the purposes of clause 6.2, but otherwise excludes all liability under this Agreement to the fullest extent permitted by law.
1. DEFINITIONS & INTERPRETATION
1.1 In this Agreement:
(a) Charges means the costs, fees and charges set out in, or calculated in accordance with, the Quotation
(b) Confidential Information means any information designated as such by either Party in writing, together with all such other information, which relates to the business affairs, finance, products, services, data, software programs, specifications, documentation, source or object code, developments, trade secrets, know how, personnel, customers and suppliers of either Party, and all information which may reasonably be regarded as the confidential information of either Party, including (but not limited to) information that the Services Provider or any of the Individuals creates, develops, receives or obtains in connection with the Engagement, whether or not such information (if in anything other than oral form) is marked confidential;
(c) Data Protection Legislation means the UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to You relating to the use of personal data (including the privacy of electronic communications) and the guidance and codes of practice issued by the relevant data protection or supervisory authority and applicable to You;
(d) Deliverables means the outputs of the IRP Paid Development Services and any other documents or materials provided by the Services Provider to You in relation to the IRP Paid Development Services (each, a Deliverable);
(e) Engagement means the engagement of the Services Provider by You to provide the IRP Paid Development Services on the terms of this Agreement (and Engage and Engaged shall be construed accordingly);
(f) Individuals means the employees of the Services Provider who undertake the IRP Paid Development Services (each, an Individual);
(g) Intellectual Property Rights means patents, rights to inventions, copyright and related rights, trade marks, trade names and domain names, rights in get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in design, rights in computer software, database 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 (and rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world;
(h) IRP Commerce means IRP Commerce Limited (CRN NI041856);
(i) IRP Commerce Cloud means the IRP World eCommerce platform made available to Merchants by IRP Commerce to provide eCommerce capabilities on a platform as a service basis;
(j) IRP Paid Development Services means the development services described in the Scope;
(k) IRP World means the IRP ecosystem found online at the IRP World Website and its content;
(l) Merchant means any person who is Registered and participates as a Merchant in the IRP Commerce Cloud;
(m) Parties means the Services Provider and You (each, a Party);
(n) Quotation means the relevant quotation for the IRP Paid Development Services issued by the Services Provider;
(o) Registration means Your registration as a Merchant as part of IRP Commerce’s online process for onboarding Merchants (and Registered shall be construed accordingly);
(p) Services Provider means person or entity who is named as the provider of the Services in the Quotation;
(q) Scope means the scope of the IRP Paid Development Services set out in the Quotation;
(r) Termination Date means the date of termination of this Agreement, howsoever arising;
(s) Timeline means the timeline (if any) set out in the Quotation;
(t) UK Data Protection Legislation means all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended;
(u) Works means all deliverables (including the Deliverables), records, reports, documents, papers, drawings, designs, transparencies, photos, graphics, logos, typographical arrangements, software programs, inventions, ideas, discoveries, developments, improvements or innovations and all materials embodying them in whatever form, including but not limited to hard copy and electronic form, prepared by the Services Provider or any of the Individuals in connection with the provision of the IRP Paid Development Services; and
(v) You means the Merchant who has Engaged the Services Provider to provide the IRP Paid Development Services (and Your shall be construed accordingly).
1.2 The headings in these Terms & Conditions are inserted for convenience only and shall not affect their construction.
1.3 A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.4. Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
2. ENGAGEMENT
You shall Engage the Services Provider and the Services Provider shall provide the IRP Paid Development Services on the terms of this Agreement.
3. DUTIES & OBLIGATIONS
3.1 Services. During the Engagement, the Services Provider shall: (a) provide the IRP Paid Development Services, including the Deliverables, in accordance with the Quotation and with reasonable skill and care; and (b) use its reasonable endeavours to ensure that the IRP Paid Development Services are performed in accordance with Timeline.
3.2 Warranty. The Services Provider warrants that, as at the date of delivery, the Deliverables shall conform in all material respects with the Scope.
3.3 Exclusions from Warranty. The Services Provider does not warrant that: (a) Your use of the Deliverables will be uninterrupted or error-free; or (b) the IRP Paid Development Services will meet Your requirements.
3.4 Disclaimer. On the basis of the warranty given in clause 3.2, to the fullest extent permitted by applicable law, the Services Provider expressly disclaims all other warranties, express or implied, including warranties of satisfactory quality or fitness for a particular purpose.
3.5 Remedy for Breach of Warranty. In the event of breach of the warranty given in clause 3.2, the Services Provider will, by way of sole and exclusive remedy, use all reasonable commercial endeavours to correct any such non-conformance promptly.
4. CHARGES & PAYMENT
4.1 Charges. You shall pay the Charges to the Services Provider without any deduction, set-off or withhold. The Charges are non-cancellable and non-refundable.
4.2 Additional Services. Any services or other work that is undertaken by or on behalf of the Services Provider that is outside of the Scope shall be charged by the Services Provider at its then current hourly rate and shall be paid by You without deduction, set-off or withhold.
4.3 Expenses. You will reimburse the Services Provider for all previously approved expenses incurred by the Services Provider in the provision of the IRP Paid Development Services.
4.4 Payment Terms. Save as specified otherwise in the Quotation, the Services Provider will invoice You 50% of the Charges on the date of Your approval of the Quotation for payment by You in full in advance of commencement of the Services and 50% of the Charges on completion of the IRP Paid Development Services for payment by You in full within 30 days of the date of the relevant invoice. The Services Provider will invoice You for any and all Additional Services for payment by You in full within 30 days of the date of the relevant invoice.
4.5 Tax. The Charges are exclusive of tax (including VAT) which, if applicable, You will pay in addition to the Charges.
4.6 Disputes. In the event of any disputes over any Charges or their payment, that dispute will be referred to the Services Provider’s auditors for settlement and its certificate shall be final and binding on both Parties.
4.7 Remedies for Late Payment/Non-Payment. If the Services Provider has not received payment of any Charges within 14 days after the due date, and without prejudice to any other rights and remedies of the Services Provider: (a) the Services Provider shall be under no obligation to provide any or all of the IRP Paid Development Services whilst the Charges in question remain unpaid; and (b) interest shall accrue on a daily basis on such due amounts at an annual rate equal to 4% over the then current base lending rate of HSBC plc from time to time (or 4% where that lending rate is 0% or below), commencing on the due date and continuing until fully paid, whether before or after judgment.
5. DATA PROTECTION
5.1 Data Protection Legislation. Both Parties will comply with all applicable requirements of the Data Protection Legislation. This clause 5 is in addition to, and does not relieve, remove or replace, a Party's obligations or rights under the Data Protection Legislation.
5.2 Controller & Processor. The Parties acknowledge that: (a) if the Services Provider processes any personal data on Your behalf when performing its obligations under this Agreement, You are the controller and the Services Provider is the processor for the purposes of the Data Protection Legislation; (b) the personal data may be transferred or stored outside the United Kingdom or the country where You are located in order to carry out the Services Provider's obligations under this Agreement.
5.3 Processing. The scope, nature and purpose of processing by the Services Provider, the duration of the processing and the types of personal data and categories of data subject are as follows: Scope: provision of IRP Paid Development Services Nature: processing as required to provide You with IRP Paid Development Services Purpose: to enable you to receive the benefit of IRP Paid Development Services Duration: as long as is required either to provide IRP Paid Development Services or by applicable law Types of personal data: address date of birth telephone number email address financial data location data Categories of data subject: customers You Your employees subcontractors
5.4 Consents. Without prejudice to the generality of clause 5.1, You will ensure that You have all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to the Services Provider for the duration and purposes of this Agreement so that the Services Provider may lawfully use, process and transfer the personal data in accordance with this Agreement on Your behalf.
5.5 Processor Obligations. Without prejudice to the generality of clause 5.1, the Services Provider shall, in relation to any personal data processed in connection with the performance by the Services Provider of its obligations under this Agreement: (a) process that personal data only on Your written instructions unless the Services Provider is required by applicable law to process personal data. Where the Services Provider is relying on applicable law as the basis for processing personal data, the Services Provider shall promptly notify You of this before processing unless applicable law prohibits the Services Provider from so notifying You; (b) not transfer any personal data outside of the United Kingdom or European Union unless the following conditions are fulfilled: (i) You or the Services Provider has provided appropriate safeguards in relation to the transfer; (ii) the data subject has enforceable rights and effective legal remedies; (iii) the Services Provider complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and (iv) the Services Provider complies with reasonable instructions notified to it in advance by You with respect to the processing of the personal data; (c) assist You, at Your cost, in responding to any request from a data subject and in ensuring compliance with Your obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators; (d) notify You without undue delay on becoming aware of a personal data breach; (e) upon Your written direction, delete or return personal data and copies thereof to You on termination of the Agreement unless required by applicable law to store the personal data (and for these purposes the term delete shall mean to put such data beyond use); and (f) maintain complete and accurate records and information to demonstrate its compliance with this clause 5 and immediately inform You if, in the opinion of the Services Provider, an instruction infringes the Data Protection Legislation.
5.6 Protection Measures. Each Party shall 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 appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures.
5.7 Replacement Provisions. The Services Provider may, at any time on not less than 30 days' notice, revise this clause 5 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme
6. INTELLECTUAL PROPERTY
6.1 Deliverables. Subject to continuing receipt of the Charges, the Services Provider (or where assigned to IRP Commerce in accordance with clause 6.2, then IRP Commerce) hereby grants to You a non-exclusive and non-transferable right to use the Deliverables for and in connection with the IRP Commerce Cloud for so long as, and upon the same terms as, the IRP Commerce Cloud is made available to You.
6.2 Ownership. Where IRP Commerce is the Services Provider, then any and all Intellectual Property Rights of whatever nature arising from or in connection with this Agreement, including any and all Intellectual Property Rights in and to the Works shall be and shall remain vested in IRP Commerce and any of its third-party licensors or suppliers. Where IRP Commerce is not the Services Provider, then IRP Commerce joins to this Agreement for the purposes of this clause 6.2, and, in consideration of £1.00 (receipt acknowledged), the Services Provider hereby assigns to IRP Commerce all of its existing and future Intellectual Property Rights of whatever nature arising from or in connection with this Agreement, including any and all Intellectual Property Rights in and to the Works, and insofar as those Intellectual Property Rights do not vest automatically under this Agreement in IRP Commerce, the Services Provider holds legal title in those Intellectual Property Rights on trust for IRP Commerce. Each of the Parties acknowledges and confirms that any and all Intellectual Property Rights assigned to IRP Commerce in accordance with this clause 6.2 shall constitute IRP Commerce’s Confidential Information and shall be treated as confidential and not disclosed in accordance with the terms of clause 7.
6.3 Third-Party Products & Services. The Intellectual Property Rights, of whatever nature, in any third-party products and/or services forming part of the Works shall be and shall remain vested in the third-party licensor or supplier. Any such third-party products or services shall be used or made available by You on the basis of the terms upon which they have been licensed or made available to the Services Provider and notified to You.
6.4 Use of Your Intellectual Property Rights. You grant to the Services Provider a worldwide, non-exclusive, royalty-free, transferable and sub-licensable right and licence to use Your Intellectual Property Rights in connection with and for the purpose of performing its obligations and exercising its rights under this Agreement.
7. CONFIDENTIALITY
7.1 Confidentiality. Either Party may have access to and/or otherwise become aware of the other Party’s Confidential Information. The receiving Party (Recipient) agrees that any Confidential Information obtained from or relating to the other Party (Disclosing Party) or any of its affiliates is and shall remain the property of the Disclosing Party or its affiliate. The Recipient shall treat as confidential and neither the Recipient nor any of its employees, agents or contractors shall disclose or use the Confidential Information except to the extent necessary for the performance of this Agreement.
7.2 Where Confidentiality shall not apply. The provisions of clause 7.1 shall not apply to Confidential Information which: (a) is in or becomes part of the public domain (otherwise than by breach of this Agreement); or (b) was in the Recipient’s lawful possession prior to disclosure under this Agreement and was not unlawfully obtained either directly or indirectly; or (c) is lawfully disclosed to the Recipient by a third-party without restriction on disclosure; or (d) which is independently developed by the Recipient without dependence on or reference to such Confidential Information; or (e) is required to be disclosed by law or other mandatory provision, or requirement.
7.3 Permitted Disclosure. The Recipient shall only divulge the Confidential Information to those of its employees, agents and contractors who need to know same and on the basis that the Recipient will be solely responsible for ensuring that each such employee, agent or contractor to whom the Confidential Information is disclosed is aware of and complies with obligations of confidentiality no less onerous than those set out in this clause 7.
8. LIMITATION OF LIABILITY
8.1 Unlimited Liability. Nothing in this Agreement shall limit or exclude the Services Provider’s liability for: (a) death or personal injury resulting from its negligence; or (b) fraud or fraudulent misrepresentation; or (c) any matter in respect of which it would be unlawful for the Services Provider to exclude or restrict liability.
8.2 Exclusion & Limitation. Subject to clause 8.1: (a) the Services Provider shall under no circumstances whatsoever be liable to You or any of your employees, agents or contractors, whether in contract, tort (including, without limitation, negligence), breach of statutory duty, or otherwise, for any loss of profit, loss of contract, loss of anticipated saving, loss of reputation, or any indirect or consequential loss arising under or in connection with this Agreement; and (b) the Services Provider’s total liability to You and any of your employees, agents and contractors respect of all other losses arising under or in connection with this Agreement, whether in contract, tort (including, without limitation, negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed an amount equal to the Charges paid by You in the immediately preceding period of 12 months (or since the date of this Agreement, if less).
8.3 Indemnity. You will indemnify the Services Provider on demand against each loss, liability and cost which the Services Provider may incur arising out of the breach by You or any of Your employees, agents or contractors of any of Your obligations under this Agreement.
9. TERMINATION, SUSPENSION & MODIFICATION
9.1 Termination. This Agreement shall commence on the date of Your approval of the Quotation and shall continue until the earlier of: (a) the IRP Paid Development Services have been provided; or (b) termination by either Party: (i) for breach by the other Party of any of the terms of this Agreement which is not remedied within 30 days of notice of that breach; or (ii) on account of the other Party being deemed by that Party as being unable to pay its debts or as having suffered or undergone an event of insolvency (or any similar or analogous event).
9.2 Suspension. Without prejudice to any right or remedy available to the Services Provider, breach of any of the terms of this Agreement by You or dishonest, fraudulent or other unacceptable behaviour on Your part, may result in the Services Provider suspending further provision of the IRP Paid Development Services (without notice being given to You).
9.3 Modification. The Services Provider reserves the right to modify this Agreement, including any Charges, in line with: (a) any change in law or regulation applicable to the Services Provider or its business, and/or (b) any enterprise-wide change in how the Services Provider operates its business (but not otherwise), at any time. If a significant change is made to this Agreement, including any material change to any Charges, the Services Provider will provide You with reasonable notice by email or via IRP World.
9.4 Consequences of Termination. Upon termination of this Agreement for any reason: (a) each Party will return to the other Party, or destroy (and provide certification of such destruction), all property of the other Party in its possession or control (including all of the Services Provider’s and/or IRP Commerce’s Confidential Information); and (b) clauses 1, 4, 6, 7, 8, 9.4 and 10 and any other provisions of this Agreement that are expressed to, or by their nature are intended to, survive, will survive termination.
10. GENERAL
10.1 Force Majeure. If the performance of any part of this Agreement by either Party is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action (including, but not limited to, any law, regulation or embargo prohibiting the performance contemplated under this Agreement or the failure or refusal of a government agency to issue a license required for any performance pursuant to this Agreement), labour disputes, act of God or any cause beyond the reasonable control of either Party (Affected Party), the Affected Party will be excused from such performance to the extent that it is prevented, hindered or delayed by such cause. Notwithstanding anything in this Agreement to the contrary, the Affected Party will nevertheless use its best efforts to re-commence its performance under this Agreement as soon as reasonably practicable and to mitigate any damages resulting from its non-performance under this Agreement.
10.2 Independent Contractors. The Parties to this Agreement are independent contractors. Except as otherwise expressly stated in this Agreement, neither Party or any of its affiliates is the agent or representative of the other Party and neither Party will have any right, power or authority to enter into any agreement for, or on behalf of, or incur any obligation or liability of, or otherwise bind, the other Party. This Agreement will not be interpreted or construed to create an association, agency, joint venture or partnership between the Parties or to impose any liability attributable to such a relationship upon either Party.
10.3 Notice. Any notice or other communication under this Agreement will be given in writing and, in the absence of a delivery failure notice for the recipient, will be deemed to have been delivered and given for all purposes on the delivery date if delivered by email to Your email address specified as part of Your Registration, and if delivered by email to the email address notified to You by the Services Provider (which shall be developmentmarketplace@irpcommerce.com where IRP Commerce is the Services Provider)
10.4 No Waiver. The waiver by either Party of any breach of this Agreement by the other Party in a particular instance shall not operate as a waiver of subsequent or other earlier breaches of the same or a different kind. No failure by either Party in exercising any of its rights under this Agreement shall be deemed to be a waiver of such rights.
10.5 Entire Agreement. This Agreement, including any completed application form and all guidelines and other documents linked or otherwise incorporated or referenced in this Agreement, sets forth the entire agreement and supersedes any and all prior agreements, written or oral, between the Parties with respect to its subject matter (including any prior version of this Agreement). Neither Party will be bound by, and each Party specifically objects to, any term, condition or other provision that is different from or in addition to the provisions of this Agreement (whether or not it would materially alter this Agreement) and which is proffered by the other Party in any correspondence or other document, unless the Party to be bound specifically agrees to such provision in writing.
10.6 Severability. If any provision or part of any provision of this Agreement is, for any reason, held to be invalid, illegal or unenforceable in any respect, then such invalidity, illegality or unenforceability will not affect any other provision of this Agreement, and this Agreement will be construed as if such invalid, illegal or unenforceable provision or part had never been contained within the Agreement.
10.7 Assignment & Subcontracting. The terms of this Agreement will be binding upon and inure to the benefit of the Parties and to their respective successors and permitted assigns. The Services Provider will be permitted to assign or subcontract this Agreement without notice to You or Your consent. You will have no right to assign, subcontract or otherwise transfer this Agreement, or any of Your rights or obligations under this Agreement, to any third-party without the Services Provider’s prior written consent, to be given or withheld at the Services Provider’s sole discretion.
10.8 Third Party Rights. This Agreement does not confer any rights on any person or entity (other than the Parties and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
10.9 Governing Law & Jurisdiction. This Agreement will be governed by and interpreted in accordance with the laws of Northern Ireland and the Parties submit to the non-exclusive jurisdiction of the courts of Northern Ireland.
