Terms & Conditions
1. Agreement
1.1 CyberContego Limited (hereafter referred to as “Company”) agrees to provide the Services and Deliverables specified in our quotes, statement of works, proposals or other sales engagement and project delivery documentation relating to the provision of cybersecurity services, (hereafter referred to as the “Sales Documentation”) subject to the following terms and conditions (as may be amended or varied from time to time)(hereafter referred to as the “Terms and Conditions”). These Terms and Conditions are incorporated into and shall be deemed to form legally binding provisions of the Sales Documentation. For the purposes of these terms and conditions, the term “Agreement” shall mean collectively these Terms and Conditions and the Sales Documentation. In the event of any conflict, inconsistency or ambiguity between these Terms and Conditions and the Sales Documentation, these Terms and Conditions shall prevail. Terms not otherwise defined in these Terms and Conditions shall have the meanings set forth in the Sales Documentation.
1.2 The Company reserves the right to, and shall on a regular basis, update, amend and vary the terms of these Terms and Conditions, provided that the current up to date terms and conditions applicable to each Agreement entered into between the Company and the Customer shall at all times be available for review and inspection at: https://www.cybercontego.com/terms-and-conditions/
1.3 By accepting any partial provision or performance of any Services by the Company and/or accepting delivery of any Technology from the Company and/or by making any payment to the Company, the Customer is deemed to accept and agrees to be bound by the Terms and Conditions set out herein and it shall not be necessary for the Customer and/or the Company to expressly accept these Terms and Conditions in writing, or for the Company to evidence that a copy of these Terms and Conditions has been expressly provided to and accepted by the Customer in order for them to be deemed accepted by and legally binding on the Customer.
2. Interpretation
Definitions
2.1 The following definitions and rules of interpretation apply in these Terms and Conditions:
Business Day: a day other than a Saturday, Sunday or public holiday in Ireland, when banks in Dublin are open for business;
Consumer Price Index: means the ‘Consumer Price Index’ as published periodically by the Irish Central Statistics office;
Customer: the party designated as ‘Customer’ in a Sales Documentation;
Deliverables: All Technology, documents, products and materials developed or supplied by Company as part of or in relation to the Agreement, including but not limited to the deliverables set out in the Sales Documentation;
Effective Date: means the date upon which an Agreement becomes effective as defined in Clause 7.1;
Intellectual Property Rights: means all patents, copyrights, design rights, trade marks, service marks, trade secrets, know-how, database rights and other rights in the nature of intellectual property rights (whether registered or not) and all applications for the same which may now or in the future subsist anywhere in the world, including the right to sue for and recover damages for past infringements;
Services: the specific services and additional ‘out of scope’ services provided by the Company to the Customer as set forth in detail in the sales Documentation.
Initial Term: means the term of a Services Contract as defined in Clause 7.2;
Technology: the specific items of equipment, including but not limited to any software (including third party software), to be provided by the Company to the Customer in accordance with the Sales Documentation;
Technology Specification: any specification for the Technology, including any relevant plans or drawings, that is agreed in writing by the company and the Customer;
Third Party Terms and Conditions: the terms and conditions of any third party manufacturer or supplier of Technology provided by the Company pursuant to an Agreement;
Interpretation
2.2 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
2.3 A reference to a party includes its personal representatives, successors and permitted assigns.
2.4 A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
2.5 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
2.6 A reference to writing or written includes fax and email.
3. Services
3.1 During the Term, the Company will provide the Customer with the Services set forth in detail in the relevant Sales Documentation.
3.2 During the Term, the parties may agree that the Company shall provide additional ‘out of scope’ services to the Customer, which additional ‘out of scope services shall be set forth in detail in the applicable Sales Documentation or otherwise shall be documented in writing between the parties and shall form part of the existing Agreement.
3.3 The Services may include applications or other services provided by third parties.
Change Order
3.4 Either Party may propose changes to the scope of the Services but no proposed changes shall come into effect until a relevant “Change Order” document has been accepted by both Parties. A Change Order shall be a document setting out the proposed changes and the effect that those changes will have on the underlying Agreement, which may include:
(i) Services agreed to be provided under the Sales Documentation;
(ii) Fees/Costs/Charges applicable to the amended scope of Services;
(iii) Timetable for delivery/performance of Services; and
(iv) Any of the other terms as may be relevant.
If the Company wishes to make a change to the Services it shall provide a draft Change Order to the Customer. If the Customer wishes to make a change to the Services it shall notify the Company in writing, and provide as much detail as the Company reasonably requires of the proposed changes, including the timing of, and reasons for, the proposed changes. The Company shall, as soon as reasonably practicable after receiving the information above, provide a draft Change Order to the Customer. If the Parties agree to a Change Order, they shall sign it and that Change Order shall amend the relevant Sales Documentation, as applicable.
4. Duties of the parties
Duties of the Company
4.1 The Company agrees to use commercially reasonable efforts to deliver and support the Services for the Customer in accordance with industry standards.
Duties of the Customer
4.2 The Customer agrees to:
(i) submit all payments to the Company in accordance with these Terms and Conditions in a timely manner;
(ii) provide the Company with a list of the Customer systems and procedures in writing in a form and substance satisfactory to the Company, in advance of commencement of each Agreement;
(iii) provide the Company with access to the Customer’s facilities and equipment, including access to the Customer’s computer systems (which systems shall accord with the Customer’s list of systems and procedures referred to above);
(iv) provide the Company with adequate and suitable facilities and space for the Company’s personnel to work at the Customer’s facility and on such computer systems as reasonably required by the Company;
(v) provide the Company with such primary contact details for the Customer and its employees/agents as the Company may reasonably request and further undertakes to notify the Company on the occurrence of any changes to such details on an ongoing basis (address etc) in a timely manner;
(vi) ensure that all of the agreed milestones are met where the Company is dependent on the Customer for the performance of the project plan. For the avoidance of doubt, the Company shall have no responsibility for any liability arising from the Customer’s failure to implement a recommendation of direction from the Company;
(vii) also provide the Company with all the information reasonably requested by the Company for the provision of the Services. For the avoidance of doubt, the Company shall have no responsibility for any liability arising from issues which the Customer failed to disclose to the Company or arising from incorrect information provided by the Customer to the Company;
(viii) Accept and hold he Company harmless in respect of any disruption of services at the Customer’s facility or on the Customer’s computer systems or reasonable loss or damage to the Customer’s software or hardware arising in the course of the provision of Services.
4.3 If the Company determines that the Services require the Company to remotely access the Customer’s computer systems, the Customer agrees that it shall also provide the Company with all the information and access rights and capabilities reasonably requested by the Company for the Company to remotely access the Customer’s computer systems.
4.4 The Customer also acknowledges and agrees that the provision of the Services by the Company may in some circumstances result in the disruption of services at the Customer’s facility or on the Customer’s computer systems or loss or damage to software or hardware. The Customer acknowledges that the Company will have no responsibility or liability for any such loss or damage.
5. Customer systems and customer responsibilities
5.1 In order for Company to provide the Services it will use penetration testing techniques on the Customer’s systems in accordance with the Agreement to try and identify Weaknesses. (“Weakness” means a particular configuration, software patch level, or application code deployment which is perceived as likely to, or can be demonstrated to reduce or undermine the security of a system, or the information stored, processed or transmitted by it.)
5.2 The Customer permits Company to scan the Customer’s systems and networks (including without limitation the systems and any applications or data held on such network and systems) for the purposes of the Criminal Justice (Offences Relating to Information Systems) Act 2017 (as updated, replaced and amended from time to time) and represents it has authority and will have authority at all times during this Agreement, to give such permission.
5.3 The Customer undertakes that it has and will have at all times during this Agreement, all necessary permissions, authorisations and consents from the owners or licensors of the Customer’s systems and networks to enable the Agreement to be provided to the Customer.
5.4 The Customer undertakes that where it uses the Agreement in any jurisdiction or territory other than Ireland, it shall be wholly responsible for ensuring that the use of the Agreement in that jurisdiction or territory complies with applicable laws or regulations.
5.5 The Customer shall indemnify and keep indemnified Company against all losses, costs, claims, demands, damages and expenses (each whether direct or indirect) arising out of or in connection with a breach of any of the provisions of this Clause 5.
6. Pricing and Payment
Pricing
6.1 The fees payable by the Customer to the Company for the Services shall be set forth in detail in the Sales Documentation.
6.2 The Company reserves the right to:
(i) increase the charges for the Services on written notice to the Customer in line with either:
a. the percentage increase in the Consumer Price Index in the preceding 12-month period with each increase to take effect on each consecutive 12 month anniversary of the Effective Date and shall be based on the latest available figure for the percentage increase in the Consumer Price Index; or
b. any price increase levied upon the Company by a third-party supplier.
(ii) increase the price of the Technology, by giving notice to the Customer at any time before delivery, to reflect any increase in the cost of the Technology to the company that is due to:
a. any factor beyond the control of the Company (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
b. any request by the Customer to change the delivery date(s), quantities or types of Technology ordered, or the Technology Specification;
c. any delay caused by any instructions of the Customer in respect of the Technology or failure of the Customer to give the Company adequate or accurate information or instructions in respect of the Technology; or
d. any price increase levied upon the Company by a third-party supplier.
Payment
6.3 The Company will invoice the Customer on a monthly basis for the fees accrued /accruing in accordance with the Agreement. Payment of fees charged for all Services shall be made by the Customer via bank transfer to the account specified in, and in accordance with the terms of the Agreement and/ or the underlying invoice issued by the Company.
6.4 Where the Company shall, in accordance with the Sales Documentation, procure and supply Technology to the Customer, payment must be made for such Technology in advance of delivery and upon receipt of an invoice for such Technology from the Company. Payment of all fees charged for all such agreed Technology shall be made by the Customer via bank transfer to the account specified in, and in accordance with the terms of the Agreement and/ or the underlying invoice issued by the Company.
Non Payment
6.5 The Company will have no obligation to perform any Services for, or supply any Technology to, the Customer, whether included in the Sales Documentation or otherwise, unless all charges, fees, and taxes for Services and/or Technology rendered have been paid in full by the Customer when due in accordance with the relevant underlying invoice and Agreement.
6.6 In the event of non-payment of any sum due and owing under an Agreement, the Company shall have the right to suspend or immediately terminate the provision of all Services without notice, and the Company may determine at its absolute discretion whether or not to reinstate any Services upon receipt of payment in full of all sums owed.
6.7 Any payment not received by the Company on or before thirty (30) days following the due date shall bear interest from the due date until such amount is paid to the Company in full at the rate of one percent (1%) of the unpaid amount per month.
6.8 If Customer is arranging for any a third party to pay fees and expenses accrued /accruing in accordance with the Agreement, the Customer will remain liable for any amounts unpaid.
Set Off / Deduction
6.9 All amounts shall be payable by the Customer to the Company without any right of setoff, deduction, or demand. All amounts payable by the Customer are exclusive of amounts in respect of value added tax chargeable for the time being (VAT).
Tax Gross Up
6.10 Where any taxable supply for VAT purposes is made under an Agreement by the Company, the Customer shall, on receipt of a valid VAT invoice from the Company, pay to the Company such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
Disputed Invoice
6.11 If Customer is not satisfied with an invoice, queries shall be directed in writing in the first instance to the account manager in charge of the Services within 14 days of the invoice being provided who will attempt in good faith to resolve the issue promptly. If the account manager fails to resolve the issue within 10 days after referral to them, please contact our Managing Director. The Managing Director will take all appropriate and reasonable steps to resolve the matter by informal means with Customer. If the Managing Director fails to resolve the issue within 10 days after the referral to them, the Parties are free to pursue a remedy in accordance with clause 17. All disputed invoices remain due and owing in full pending resolution of any issue raised.
6.12 Company reserves the right to increase the monthly support fees (by up to 100%) where Company consistently fails to take remedial actions to correct weaknesses in your systems that we notify you about.
7. Term & Termination
Term
7.1 The term of each Agreement (the “Term”) shall commence on the earlier of (i) the date of execution of the Sales Document by Customer and Company; (ii) the first date upon which Company shall confirm acceptance or otherwise act in reliance on an instruction following receipt of an order or other such communication from Customer (the “Effective Date”) and shall continue until its expiry and automatic termination either:
(i) on the final date of the Initial Term if the Agreement is expressly not extended by delivery of written notice of termination in accordance with these terms and conditions;
(ii) at the end of the extended period of an Agreement if such Agreement is extended in accordance with these Terms and Conditions; or
(iii) if an Agreement is otherwise terminated in accordance with these Terms and Conditions.
7.2 On expiry of the Initial Term, unless either party shall expressly notify the other party of its intention to terminate the underlying Agreement on or before the 12 month anniversary of the Effective Date (the “Initial Term”), the Agreement shall automatically and immediately renew by additional consecutive periods of 12 months commencing on the first day after expiry of the Initial Term and shall continue until either party shall terminate the Agreement in accordance with these terms and conditions.
Termination by Notice
7.3 This Agreement may be terminated immediately at any time by either party if the other party:
(i) breaches any material term of this Agreement and such breach remains uncorrected for fourteen (14) days following written notice of the breach; or
(ii) becomes the subject of a voluntary or involuntary petition in bankruptcy or any involuntary proceeding relating to insolvency, receivership, liquidation, or similar action for the benefit of creditors as a consequence of debt, or if the other party otherwise ceases or threatens to cease business.
7.4 Either party may terminate this Agreement at any time by providing at least sixty days (60) (“Notice Period”) prior written notice to the other party.
7.5 If Customer terminates the Agreement at any time during the Initial Term or at any time during the extended period of an Agreement (as extended pursuant to Clause 7.2 above), Customer shall be required to pay all remaining unaccrued or undischarged costs and fees under the applicable Agreement for the entirety of the remaining period of the Initial Term or extended period in full without deduction or set off, irrespective of the date upon which the Agreement may be terminated during the Initial Term or extended term.
Termination by Company
7.6 Company may immediately terminate this Agreement upon written notice to Customer if Customer:
(i) fails to make any payment to Company when due under the terms of the Agreement and such failure continues for a period of five (5) working days following written notice of such failure by Company to Customer; or
(ii) breaches any other provision of the Agreement including these Terms and Conditions.
Duties on Termination
7.7 Immediately upon the expiration or termination of this Agreement, each party shall:
(i) return to the other any and all equipment (including but not limited to any Deliverables) provided by the other party;
(ii) complete all necessary tasks and actions to enable the Customer to transition effectively and promptly to an alternate supplier at the Customers cost; and
(iii) discontinue the use of and permanently delete from the party’s computer systems any and all of the other party’s software and other computer programs installed or provided by the other party.
Consequences of Termination
7.8 Customer acknowledges and agrees that it shall be responsible for payment of any and all costs that may be reasonably incurred in respect of data transfer/offboarding in excess of reasonable fair use levels as determined and applied by Company.
7.9 Customer agrees and acknowledges that Company allocates its employees and consultants weeks or months in advance and would suffer a loss should all or any part of the Agreement be postponed or cancelled at short notice. As such, Customer agrees that it shall pay to Company (as genuinely pre-estimated liquidated damages) an amount to reflect the losses which Company will incur if such cancellation or rescheduling is requested within a set number of days of the Effective Date (the “Cancellation Fee”).
7.10 A notice of intent to cancel or a notice to postpone the provision of the Agreement will only be accepted in written format up to 14 days prior to any agreed commencement date. If cancellation or postponement is 14 days or closer to the agreed commencement date a Cancellation Fee of 50% will be imposed and an invoice will be issued. If cancellation or postponement is within 24 hours of the agreed commencement date a Cancellation Fee of 100% will be imposed and an invoice will be issued.
7.11 Charging of the Cancellation Fee is at Company’s discretion. Company will use reasonable commercial efforts to re-deploy consultants and employees to other projects to mitigate its losses resulting from cancellation or rescheduling. If Company is able to successfully redeploy consultants, then it can reduce the Cancellation Fee payable by Customer accordingly.
7.12 If Customer re-books / re-orders the Agreement for another date, the fees as re-booked will be payable in addition to any Cancellation Fee. If a penetration test is postponed two times or more, a charge of up to €1,000 will be incurred upon each postponement starting on the second postponement.
8. Representations and Warranties
8.1 In consideration of the fees stated in the Sales Documentation, the Company represents that it will provide the Services and Deliverables described in the Sales Documentation in a good and workmanlike manner and in accordance with generally accepted industry standards.
8.2 Each party represents and warrants to the other party that:
(i) it has the full right, power and authority to enter into and to perform the Agreement;
(ii) the execution, delivery and performance of the Agreement has been duly authorized by all necessary corporate action;
(iii) the Agreement constitutes a valid and binding obligation of such party, enforceable against it in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and other laws affecting the rights of creditors generally; and
(iv) the execution, delivery and performance of the Agreement does not or will not violate or cause a breach or default under:
a. the governing corporate or company documents of such party;
b. any agreement, lease, mortgage, license or other contract to which such party is a party; or
c. any law, rule, regulation, order, decree or consent action by which such party is bound or to which it is subject.
9. Disclaimer of Warranties
9.1 The Company does not warrant:
(i) the uninterrupted or error-free operation or provision of the Services or that all Weaknesses will be identified and corrected,
(ii) that the Services will be free from interruption,
(iii) the Services or Customer computer systems will be secure from unauthorized access,
(iv) that the Services will detect every security or other vulnerability of the Customer’s computer systems, or
(v) that results generated by the Services will be error-free, accurate or complete.
9.2 All information, materials and Services are provided to the Customer on an “as is” basis. Except as specifically set forth in the Sales Documentation, the Company hereby disclaims all representations and warranties, express or implied, including, but not limited to, warranties of merchantability, fitness for a particular purpose and non-infringement.
9.3 The Services may become unavailable due to any number of factors, including, without limitation, scheduled or unscheduled maintenance, technical failure of the software, telecommunications infrastructure, or the unavailability or interruption of access to the Internet. For the avoidance of doubt unavailability of the Services may also arise due to these factors arising for any of the third party suppliers engaged by the Company as part of the Services.
9.4 The disclaimers set forth in this clause shall apply regardless of whether:
(i) The Company determines that the Customer’s computer systems are deemed “secure”,
(ii) The Customer performs such modifications to its computer systems as the Company reasonably suggests in order for the Customer’s computer systems to be deemed “secure”, or
(iii) otherwise.
9.5 Certain Technology provided by the Company to the Customer pursuant to an Agreement and/or certain Services provided by the Company to the Customer pursuant to an Agreement may involve the sale and/or provision of third party products and services that may be subject to such third party manufacturer/provider standard terms, conditions, representations and warranties. In such circumstances the Customer hereby confirms and acknowledges that they agree to accept and be legally bound by such standard terms, conditions, representations and warranties, which shall be deemed to be in addition to and not in replacement or amendment of the Terms and Conditions. The Company shall be under no obligation to inform the Customer of the details of all third party manufacturer/provider standard terms, conditions, representations and warranties or to update the Customer in respect of any amendments or other changes to such third party manufacturer/provider standard terms, conditions, representations and warranties.
9.6 The representations and warranties expressly stated in this Agreement are the sole and exclusive representations and warranties offered by Company. Save as otherwise set out in the Agreement, and to the fullest extent permissible by Law, Company disclaims and excludes all warranties, conditions, representations, indemnities and guarantees with regard to the Services and/ or Deliverables and any related services provided or to be provided hereunder, whether express or implied, including but not limited to warranties of non-infringement, merchantability, fitness for a particular purpose and that use of the Services and / or Deliverables will be uninterrupted or error free.
10. Confidentiality
10.1 To the extent that confidential and/or proprietary information of either party (“Confidential Information”) is exchanged in connection with the Services, each party agrees for the duration of an Agreement and for a period of five years after termination of an Agreement not to use the other party’s Confidential Information except in the performance of, or as authorised by, the Agreement, and not to disclose, sell, license, distribute or otherwise make available such Confidential Information to third parties.
10.2 Each party may disclose the other party’s Confidential Information:
(i) to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with an Agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this Clause 10; and
(ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
10.3 “Confidential Information” includes (but is not limited to) Company Information (as defined in clause 11.5 below), but does not include:
(i) information that was publicly available at the time of disclosure or that subsequently becomes publicly available other than by a breach of this provision;
(ii) information previously known by or developed by the receiving party independent of the Confidential Information; or
(iii) information that the receiving party rightfully obtains without restrictions on use and disclosure.
11. Intellectual property
Ownership Rights
11.1 All Deliverables created specifically for the Customer by the Company under an Agreement shall vest in and be the exclusive property of the Company.
11.2 The Company hereby grants to the Customer a non-exclusive, non-transferable, revocable license to use such Deliverables for the Term at no additional charge solely for Customer’s internal business purposes, in accordance with the limitations set forth in this Agreement.
11.3 Any inventions, designs, Intellectual Property Rights or works of the Company Information, shall vest in and be the exclusive property of Company (“Company Derivative Work”).
11.4 Any inventions, designs, Intellectual Property Rights or other derivative works of Customer Information (as defined in clause 11.6) shall vest in and be the exclusive property of Customer (“Customer Derivative Work”).
Pre-Existing Work
11.5 Any pre-existing proprietary or Confidential Information of the Company or it’s licensors used to perform the Services, or included in any Deliverable, including but not limited to Technology, software, appliances, methodologies, code, templates, tools, policies, records, working papers, know-how, data or other intellectual property, written or otherwise, including Company Derivative Works shall remain the exclusive property of Company and its licensors (collectively, “Company Information”).
11.6 Any Customer pre-existing information, including but not limited to any the Customer’s proprietary and Confidential Information provided to the Company by the Customer shall remain the exclusive property of the Customer or its licensors (“Customer Information”).
11.7 To the extent that the Company incorporates any Customer Information into the Deliverable(s), the Customer hereby grants to the Company a non-exclusive license to use such Customer Information solely for the Company’s business purposes, in accordance with the limitations set forth in this Agreement.
Retention
11.8 The Customer acknowledges that the Company provides similar services to third parties and that nothing in this Agreement shall be construed to prevent the Company from carrying on such business. The Customer acknowledges that the Company may at its sole discretion develop, use, market, distribute and license software or documentation that is substantially similar to the Deliverables including, without limitation, software with similar structure, sequence and organisation as the Deliverables.
Improvements
11.9 Any discovery, technology, invention, process or improvement made or discovered by the Customer or its agents or employees during the Term of this Agreement in relation to the Company Information and/ or the Deliverables (“Improvements”) shall forthwith be disclosed to the Company in writing, together with any further information as is reasonably required by the Company in order to evaluate the Improvements. The Customer hereby assigns (including by way of present assignment of future rights) all Intellectual Property Rights in any Improvements. The Customer shall execute any further documents and agreements required to vest such Improvements in the Company or such member of the Company’s group of companies that it may nominate for that purpose.
12. Indemnity
12.1 The Company shall defend and indemnify and hold Customer harmless from any claim asserting that the Services or Deliverables infringe any Intellectual Property Rights of any third party, and subject to Clause 13, will pay any and all damages awarded by a court and actually paid by the Customer, or agreed to in settlement by the Company and attributable to such claim.
12.2 The Company’s obligations under Clause 12.1 are subject to the Customer doing the following:
(i) promptly notify the Company in writing if any third party action, claim, or other proceeding is made or threatened such as to activate any indemnity granted hereunder;
(ii) making no admissions without the Company’s prior written consent;
(iii) providing the Company with all reasonable assistance and information to enable Company to perform its duties under this Clause 12;
(iv) allowing the Company sole control of the defence and all related settlement negotiations. The Customer shall give the Company all reasonable assistance. The costs incurred or recovered in such negotiations or settled claim shall be for the Company’s account; and
(v) not having compromised or settled such claim. Notwithstanding the foregoing, the Customer may participate at the Customer’s expense in the defence of any such claim with its own counsel, provided the Company retains sole control of the suit.
12.3 Customer has the right to approve any settlement that affirmatively places on Customer an obligation that has a material adverse effect on Customer other than the obligations to cease using the affected Deliverables or to pay sums indemnified hereunder. Such approval will not be unreasonably withheld.
12.4 If the Services or Deliverables are found to infringe, or if the Company determines in its sole opinion that either is likely to be found to infringe, then the Company will either:
(i) obtain for the Customer the right to continue to use Deliverable; or
(ii) modify the Services or Deliverable so as to make it non-infringing, or replace it with a non-infringing equivalent substantially comparable in functionality, in which case Customer will stop using any infringing version of the Services or Deliverable; or if or if Company determines in its sole opinion that (i) and/or (ii) are not commercially reasonable);
(iii) terminate the Customer’s rights and the Company’s obligations under this Agreement with respect to such Services or Deliverable, and refund to Customer the fees paid for the relevant Services or Deliverables.
12.5 Notwithstanding the above, Company will have no liability for any infringement claim based on:
(i) modification of the Services or Deliverable other than by the Company;
(ii) combination, use or operation of the Services or Deliverable with products not specifically authorized by the Company to be combined with the Services or Deliverables;
(iii) use of Services or Deliverables other than in accordance with this Agreement;
(iv) Customer’s continued use of infringing Services or Deliverables after Company, for no additional charge, supplies or offers to supply modified or replacement non-infringing Services or Deliverables.
12.6 Clause 12 sets out Customer’s sole and exclusive remedy and the Company’s sole and exclusive obligations and liability, regarding alleged or actual infringement of any Intellectual Property Rights of a third party.
12.7 The Customer shall defend and indemnify the Company from and against all claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with any claim brought, made or threatened by any third party against it relating to or in connection with:
(i) any infringement or alleged infringement of any third party Intellectual Property Rights as a result of the use by the Company of the Customer Information in accordance with the terms and conditions of this Agreement;
(ii) the Customer’s fraud or wilful misconduct;
(iii) the Customer’s use of the Deliverables in combination with equipment, materials, products or software where the Deliverables itself would not be infringing;
(iv) the Company’s compliance with designs, plans or specifications provided to the Company by the Customer;
(v) any unauthorized repair, adjustment, modification or alteration to the Deliverables by the Customer or any third party other than at the written direction of the Company; and
(vi) any refusal by the Customer to install and use a non-infringing version of the Deliverables offered by the Company at no cost to the Customer so long as such non-infringing version of the Deliverable performs the functions required hereunder.
12.8 The provisions of this Clause 12 shall continue in force notwithstanding the termination or expiration of this Agreement.
13. Limitation of liability
13.1 In no event shall the Company, its affiliates or its suppliers be liable, whether in contract, tort or otherwise to the Customer or any person for:
(i) lost business profits or revenue or lost or corrupted data, loss of production, loss of contracts, loss of goodwill or anticipated savings or wasted management and staff time;
(ii) or any incidental, indirect, special or consequential damages, losses, expenses or costs of any kind;
even if advised of the possibility and whether arising directly or indirectly out of this Agreement or use of the Services or Deliverables or the performance, defective performance, non-performance or delayed performance by Company of any of its obligations under or in connection with this Agreement.
13.2 Nothing in this Agreement shall exclude or limit Company’s liability for: (i) death or personal injury caused by its negligence; (ii) any fraudulent pre-contractual misrepresentations made by Company on which Customer can be shown to have relied; or (iii) any other liability which cannot be excluded by law.
13.3 In all other cases not falling within Clause 13.1and 13.2, the Company’s total liability (whether in contract, tort or otherwise) relating to anything supplied or services provided (including without limitation the Services) under or in connection with this Agreement shall not exceed in aggregate the gross fees paid by the Customer pursuant to the Agreement for the six (6) month period immediately prior to the first occurrence of the claim.
14. Non-solicitation
14.1 In the absence of the Company’s prior written consent, and for a period of twelve (12) months following the expiration or termination of the relevant Agreement, for any reason whatsoever, the Customer agrees not to hire or otherwise engage, directly or indirectly, any person who, at any time during the twelve (12) months immediately preceding such hiring or engagement, was an employee of the Company who was employed to perform (in whole or in part the Services or other services similar to the Services for the Customer.
14.2 The Company and the Customer agree that the quantum of damages arising from a breach of this Clause by a Customer would be difficult to ascertain. Therefore, in the event of any breach of this Clause by the Customer, the Customer agrees to pay the Company, as liquidated damages and not as a penalty, a sum equal to twenty-four (24) months’ total remuneration paid by the Company for each former employee of the Company hired or otherwise engaged by the Customer in breach of this Clause, at the rate of remuneration paid by the Company for the last full month of such employee’s employment with the Company.
14.3 In addition, the Company shall be entitled to temporary and permanent injunctive relief or similar Court orders in order to prevent or restrain any such violation of this Clause 14 by the Customer or its partners, agents, representatives, servants, employers, employees and any and all persons directly or indirectly acting for or with the Customer.
14.4 These remedies shall be in addition to, and not in limitation of, any other rights or remedies afforded to the Company under these Terms and Conditions or available to the Company at law or in equity.
15. Data privacy
15.1 The following definitions shall have the following meanings for the purpose of this Clause 15:
(i) “Data Protection Legislation” means applicable data protection law including the Data Protection Acts 1988 to 2018, the General Data Protection Regulation ((EU) 2016/679) (‘GDPR’) and any secondary legislation which relates to personal data and any codes of conduct or guidance issued by the Data Protection Commission from time to time;
(ii) “Relevant Data” means any personal data processed on behalf of the Customer in connection with the performance by the Company of its obligations under an Agreement;
(iii) the terms “controller”; “data subject”; “personal data”; “personal data breach”; “processor“; “processing” (and any derivatives of this term) and “supervisory authority” each have the meaning given under Data Protection Legislation.
15.2 The Customer hereby authorises the Company to process the Relevant Data for the purposes of providing the Services. The Parties agree to comply with all applicable requirements of Data Protection Legislation. This Clause 15 is in addition to, and does not relieve, remove or replace, a Party’s obligations under Data Protection Legislation.
15.3 The Parties acknowledge and agree that:
(i) for the purposes of Data Protection Legislation, The Customer is the controller and the Company is processor of Relevant Data; and
(ii) Without limiting or affecting any other provision of an Agreement, the Company shall, in relation to the Relevant Data:
a. only process the Relevant Data as necessary to perform the Services and only in accordance with The Customer’s documented written instructions regarding the processing of Relevant Data pursuant to an Agreement, unless otherwise prevented by applicable law. If the Company is required by applicable law to process Relevant Data for purposes other than those agreed under an Agreement, it shall inform The Customer of that legal requirement before processing such Relevant Data, unless that applicable law prohibits such information being given on important public interest grounds;
b. without limiting or affecting The Company’s obligation under Clause 15.3(ii)a, inform The Customer in writing if in its opinion an instruction issued by The Customer infringes Data Protection Legislation;
c. at all times for the duration of its processing of Relevant Data implement and maintain appropriate technical and organisational measures required under Article 32 of the GDPR and shall document those measures in writing and periodically review them to ensure they remain current. The Company shall make its security practices and policies for the protection of the Relevant Data available to The Customer for inspection on reasonable written notice;
d. ensure that persons employed by it and other persons who may process the Relevant Data are aware of and comply with this Clause 15 and the Data Protection Legislation, and are suitably trained in the processing of personal data and in the technical and organisational measures described in this Clause 15 as applicable to the Relevant Data;
e. promptly inform The Customer in the event of receiving a request from a data subject to exercise their rights under Data Protection Legislation and provide such cooperation and assistance as may be reasonably required by The Customer, at The Customer’s sole cost and expense, to enable The Customer to deal with such request in accordance with the provisions of Data Protection Legislation. This will include assisting The Customer, where deemed necessary, by implementing appropriate measures to aid The Customer o meet requests under Data Protection Legislation. The Company shall not respond to any such request from a data subject or to any communication from a supervisory authority concerning Relevant Data without The Customer’s prior written instruction.
f. Considering the nature of processing of Relevant Data and the information available to the Company, provide assistance to The Customer and its representatives in ensuring compliance with obligations pursuant to Articles 32 to 36 of the GDPR;
g. promptly and without undue delay, and in any event no later than 24 hours upon becoming aware, notify The Customer of any actual or suspected occurrence of a personal data breach in respect of the Relevant Data in such form and detail as complies with a notification under Article 33(3) of the GDPR. The Company shall reasonably cooperate with The Customer in fulfilling The Customer obligations under Articles 33 and 34 of the GDPR including by assisting with any investigation and making available all relevant information required for The Customer to comply with Data Protection Legislation or as reasonably required by The Customer;
h. maintain complete and accurate records and information to demonstrate its compliance with this Clause 15 and make available to The Customer all information reasonably necessary to demonstrate compliance by the Company in respect of Relevant Data with the obligations laid down in this Clause 15 and allow for and contribute to audits, including inspections, conducted by The Customer or another auditor mandated by The Customer;
i. when the Company ceases to provide the Services or services relating to the processing of Relevant Data the Company shall: (i) at the choice of the Customer, delete or return all such Relevant Data to the Customer; and (ii) delete all existing copies of such Relevant Data unless EU law or the laws of an EU Member State require storage of the Relevant Data;
j. not authorise a sub-processor to process Relevant Data without the Customer’s prior written consent. The Company shall, where it engages a sub-processor in accordance with this Clause 15.3(ii)j, comply in full with Article 28(4) of the GDPR;
k. ensure that persons authorised to process the Relevant Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality; and
l. not transfer or otherwise process Relevant Data outside of the European Economic Area unless the prior written consent of the Customer has been obtained.
15.4 The Customer acknowledges that with respect to the Relevant Data its statutory duties may include the following:
(i) complying with Data Protection Legislation and ensuring that any instructions that it issues to the Company complies with Data Protection Legislation;
(ii) establishing a procedure for the exercise of the rights of data subjects whose personal data is processed;
(iii) only process Relevant Data that have been lawfully and validly collected and ensuring that such Relevant Data is relevant and proportionate to the respective uses; and
(iv) establishing the legal basis for processing Relevant Data under Data Protection Legislation.
15.5 Schedule 1 sets out the scope, nature and purpose of the processing by the Company, the duration of the processing and the types of Relevant Data and categories of data subject.
16. Taxes
16.1 The Customer is responsible for all taxes, customs duties, import fees or other similar charges, and all other mandatory payments imposed by government entities with respect to the Services and/ or Deliverables, excluding tax imposed on Company’s net income and withholding taxes (subject to the condition of providing withholding tax payment receipts, as set forth below).
16.2 Company will bill applicable taxes as a separate item on Customer’s invoice. If a transaction is exempt from tax, Customer will provide Company with a valid exemption certificate or other evidence of such exemption in a form acceptable to the Company. If the Customer is required by law to withhold any tax from the payment, the Customer will provide to the Company original or certified copies of all tax payment receipts or other evidence of payment of taxes by the Customer with respect to transactions under this Agreement. If the Customer fails to provide the Company with such tax payment receipts, if applicable, then the Customer will reimburse the Company for any fines, penalties, taxes and other governmental agency charges resulting from such failure.
17. Governing law and jurisdiction
This Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation will be governed by and construed in accordance with the laws of Ireland and the parties agree to be subject to the exclusive jurisdiction of the Irish Courts for the settlement of any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Agreement or its subject matter or formation.
18. Miscellaneous
18.1 While on the Customer’s premises, the Company will ensure that its personnel follow all reasonable instructions, as such are provided to the Company prior to the performance of the Services.
18.2 The Company is an independent contractor and shall not be deemed an employee or agent of Customer.
18.3 These terms and conditions, including the Sales Documentation, contain the complete and exclusive agreement between the parties relating to the Services and supersedes any previous or contemporaneous agreement, proposal, commitment, representation, or other communication, whether oral or written between the parties in relation to such subject matter. It is expressly agreed that any pre-printed terms appearing on the face or reverse side of any invoice, purchase order, acknowledgement or confirmation issued by Customer that are different from or in addition to the terms provided in this Agreement are not binding on the parties, even if signed and returned.
18.4 The Company has the right to subcontract to third parties the performance of the Services.
18.5 All notices will be in writing and addressed to the receiving party’s current business contact, if known, with a copy: to the General Counsel/Legal Department of the receiving party and sent to the party’s address as listed in the Agreement, or as updated by either party in writing. Notices shall be effective upon receipt and shall be deemed received as follows:
(i) if personally delivered by courier, when delivered, or
(ii) if mailed by first class mail, or the local equivalent, on the fifth Business Day after posting with the proper address.
18.6 This Agreement may not be assigned or otherwise transferred by the Customer. A change of control shall constitute an assignment.
18.7 No person other than a party to this Agreement shall be entitled to enforce any term of it except as expressly provided herein.
18.8 Each party will be excused from performance, other than payment obligations, for any period during which, and to the extent that, it is prevented from performing any obligation or service, in whole or in part, due to unforeseen circumstances or to causes beyond such party’s reasonable control including but not limited to war, strike, riot, crime, acts of God, or shortages of resources.
18.9 If any provision or part of this Agreement is found by a court of competent jurisdiction or other competent authority to be illegal or unenforceable, it will be enforced to the maximum extent permissible, and the remainder of this Agreement will remain in full force and effect to the fullest extent permitted by law and the parties hereto agree to replace the illegal or unenforceable provisions with valid provisions which are as close as possible to the illegal or unenforceable provisions in their respective meaning, purpose, and commercial effect.
18.10 Any term of this Agreement, which by necessary implication is deemed to survive termination or expiration of this Agreement shall survive termination or expiration of this Agreement, including, without limitation, Sections 3 through 17.
Schedule 1: Processing, personal data and data subjects
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PART 1 |
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Scope of the Processing |
The provision of Services to the Customer |
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Nature and Purpose of the Processing |
To allow the Company to engage with the business of the Customer for the purposes of providing the Services |
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Duration of the Processing |
The term of the Agreement |
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PART 2 |
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Types of Personal Data |
Names, addresses, email addresses, age, date of birth, financial information |
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PART 3 |
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Categories of Data Subject |
Customers; Employees, customers, subscribers |
Schedule 2: Monthly service fees
