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Terms and Conditions

Autonifai Limited a private company limited by shares registered in Ireland (registered number 741389) having its registered office at 77 Camden Street Lower, Dublin, D02 XE80, Ireland (the “Supplier”) which provides a comprehensive automation solution designed to streamline and automate all aspects of accounting operations, including order-to-cash, procure-to-pay and record-to-report processes.

The Customer (whose details are set out in the Memorandum of Agreement) wishes to be provided the Services and to use the Supplier Platform and obtain other services from the Supplier relating to the provisions of the Services and its use of the Supplier Platform subject to these terms and conditions.

NOW, THEREFORE, in consideration of the agreements and the mutual covenants contained in this Agreement and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

  1. DEFINITIONs and Interpretation
    • In this Agreement, unless otherwise stated:
      • “Acceptance Period” has the meaning given to it in clause 5.1;
      • “Affiliate” means an entity which controls, is controlled, or is under common control with a party or any other entity controlled by such party, where “control” means: (a) the indirect or direct or beneficial ownership of a voting interest of at least fifty percent (50%) (or in a jurisdiction where majority ownership is prohibited by law, the maximum ownership percentage permitted by law); or (b) the right or power, directly or indirectly, to elect a majority of the board of directors (or equivalent); or (c) the right or power to control management;
      • “Agreement” means this master services agreement, the Memorandum of Agreement, and any Statement of Work entered into between the Parties, including the Schedules and annexes hereto and all other documents attached or otherwise incorporated into this Agreement or any Statement of Work, all as amended from time to time in accordance with the terms hereof;
      • “Business Day” means any days other than Saturday or Sunday, or a bank or public holiday in Ireland;
      • “Business Hours” means the Supplier’s normal business hours, being 9am to 5:30pm on a Business Day;
      • “Confidential Information” means, subject to clause 13.4, this Agreement and any information, however conveyed or presented, that relates to: (a) products, services, processes software applications, algorithms, tools, reporting, operations, business, affairs, strategies, business models and plans, analyses, compilations, pricing, budgets, promotions, developments, trade secrets, know-how, sales and marketing information, financial information, technical information and data of the owner Party, its Affiliates, or its customers or suppliers; (b) all information derived from, containing or reflecting any information under paragraph (a); and (c) any other information clearly designated by a Party as being confidential to it (whether or not it is marked ‘confidential’), or which ought reasonably be considered to be confidential;
      • “Commencement Date” means the date of this Agreement;
      • “Contract Material” means all analysis, data and solutions generated or created by the Services; all documents, information and data and other material designed, created, produced, generated, invented or conceived in performing the Services (including all modifications, changes and other derivative works made or created with respect to the same); and all reports, diagrams, documents, information, data and all other material (including any business processes, know-how, tools and methodologies) however stored provided by the Supplier (including Intellectual Property Rights of the Supplier) to the Customer in relation to this Agreement, but excludes Customer Material;
      • “Consultancy Services” means any services or tasks which the Supplier agrees to carry out on a consultancy basis in connection with the Services during the Term, including any management, training and design services as described under a SOW. This includes, but is not strictly limited to, business, product and technical consultancy, development, training, project management, implementation and any other related services as set out in a SOW and as may be agreed by the Parties from time to time;
      • “Customer Manager” has the meaning given to it in clause 23.1;
      • “Customer Material” means all documents, information and data (however stored) that is provided by the Customer to the Supplier for the purposes of this Agreement and performing the Services, but excludes Contract Material;
      • “Customer Systems” means the Customer’s information technology systems and networks, including, but not limited to, any electronic point of sale systems, enterprise resource planning systems, ecommerce platforms, computers, networks, databases, and servers owned, licensed or leased by the Customer, or operated by a third party on behalf of the Customer, whether onsite at the Customer’s premises or online;
      • “Data Protection Legislation” means all laws relating to data protection, privacy, data security or electronic marketing including: (i) the Data Protection Act 1988 and 2018 and all other applicable national laws, regulations and secondary legislation implementing European Directive 95/46/EC; (ii) the GDPR and all related national laws, regulations and secondary legislation, including the Data Protection Act 2018; and (iii) the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2003/2426) and all other applicable national laws, regulations and secondary legislation implementing European Directive 2002/58/EC, in each case as amended, replaced or updated from time to time and together with any subordinate or related legislation made under any of the foregoing;
      • “Deliverable” means any and all tangible work product (such as programs, documents or other materials in whatever format or media) and items (in whatever form, including draft) that can be reduced to tangible form (such as electronic files), designed, created, produced, invented, or conceived of by the Supplier in the performance of the Services under this Agreement or a SOW;
      • “Disclosing Party” has the meaning given to it in clause 13.1;
      • “Dispute” means any disputes, differences of opinion, matters and/or disagreements arising out of, in connection with or relating to the Services, the Deliverables, or this Agreement and/or its performance in any way;
      • “Extended Term” has the meaning given to it in clause 2.2;
      • “Fees” has the meaning given to it in clause 10.1;
      • “Force Majeure Event” has the meaning given to it in clause 21.1;
      • “Initial Term” means the period of 12 months from the Commencement Date;
      • “Integration Date” means the date on which the Integration Project has been fully completed, as stated in the Integration Notice;
      • “Integration Fee” means the fee as set out in the relevant SOW to be paid by the Customer to the Supplier for the Integration Services during the Integration Period;
      • “Integration Notice” means the written notice provided by the Supplier to the Customer confirming that the Integration Project has been completed and that the Supplier Platform and/or Third Party Platform (as applicable) is fully deployed and operational on the Customer Systems;
      • “Integration Period” means the period beginning on the date as specified in the SOW and ending on the Deployment Date, a timeline of which is set out in the relevant SOW;
      • “Integration Project” means the deployment of any software customisation, procuring, consulting and computer programming services required to customise and deploy the Supplier Platform (as applicable and as stated in the relevant SOW) with the Customer Systems and/or integrate the Supplier Platform with any Third Party Platform during the Integration Period;
      • “Integration Services” the services provided by the Supplier to the Customer to implement the Integration Project;
      • “Intellectual Property Rights” means all intellectual and industrial property rights including without limitation patents, registered trademarks and designs, copyright (present and future), domain names, applications for any of the foregoing, trade and business names, rights in get-up, service marks, unregistered trademarks, goodwill in relation to the foregoing, database rights, sui generis rights, rights in designs (whether registerable or not), ideas, inventions, mask works, formulas, source and object codes, data, programs, concepts, improvements to existing technology, processes, systems, topographies, topography rights, rights in maps, drawings, plans, costings, layout files, rights in computer software, rights in hardware, rights in products and services, rights in confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals and extensions of, such rights and all similar or equivalent rights or forms of protection which now or in the future subsist in any part of the world;
      • “Insolvency Event” means if a Party is bankrupt, has a petition presented for its winding up, has a liquidator appointed to it or has a receiver or an examiner appointed to it or over part or all of its assets or enters into a composition with its creditors (except for the purposes of a bona fide reconstruction or amalgamation on terms approved in advance by the other Party), and/or the Party is unable to pay its debts as they fall due within the meaning of section 570 of the Companies Act 2014 (or any event similar to the foregoing occurs in any jurisdiction);
      • “Licence Fee” means the annual fee to be paid by the Customer to the Supplier for each 12 month period of the Term in respect of the licence granted by the Supplier to the Customer to access the Supplier Platform during the Initial Licence Term and each Renewal Period as described in the relevant SOW and in accordance with clause 10;
      • “Maintenance Services” means the general maintenance of the Supplier Platform and the application of Updates and Upgrades;
      • “Memorandum of Agreement” means document entitled ‘Memorandum of Agreement’ that has been executed by the Parties and which contains terms and conditions provided by the Supplier to the Customer which provides a summary of the scope of estimated works to be carried out by the Supplier as part of the Services and on which the Deployment Fee has been based and also containing the agreed Initial Licence Term, among other relevant details
      • “Open Source Software” means any software programs which are licensed under any form of open-source licence meeting the Open Source Initiative’s “open source” definition (http://www.opensource.org/docs/definition.php);
      • “Personnel” means all employees, contractors, consultants or any other third parties acting in a representative capacity on behalf of a Party such as agents and independent contractors (including subcontractors) of a Party;
      • “Receiving Party” has the meaning given to it in clause 13.1;
      • “Services” means the services, Consultancy Services, Integration Services, Support Services and Deliverables, as further described in a SOW, performed or contracted to be performed by the Supplier under this Agreement and any SOW, as may be amended or supplemented from time to time by advanced written notice to the Customer (and includes, as the context admits or requires any one, more or all of them or part of any of them);
      • “Service Levels” means the performance standards set out or described in each individual SOW, which the SOW expressly requires the Supplier to provide the Support Services in accordance with (and includes, as the context admits or requires any one, more or all of them or part of any of them);
      • “Statement of Work” or “SOW” means a separate written document signed by an authorised representative of both Parties and entered into pursuant to this Agreement detailing the particular Services and Deliverables to be provided by the Supplier, the timing, and, where applicable, the Fees and expenses (if any) to be charged for those Services, which may be substantially in the form attached at the Schedule (Template Statement of Work); and
      • “Supplier Manager” has the meaning given to it in clause 23.1; and
      • “Supplier Platform” means the Supplier’s proprietary software platform for providing automation of all aspects of accounting operations, including order-to-cash, procure-to-pay and record-to-report processes by the Supplier to the Customer via the internet under the terms of this Agreement;
      • “Support Services” means those services to be provided by the Supplier to the Customer for providing support in connection with the maintenance and deployment of the Supplier Platform and any services provided by the Supplier to the Customer relating to the Third Party Platforms;
      • “Support Fees” means the fees payable by the Customer to the Supplier for the Support Services purchased as set out in the applicable SOW;
      • “Term” means the Initial Term plus all Extended Terms, collectively;
      • “Third Party Platform” means any third party accounting, finance, administration or other software platform;
      • “Update” means a hotfix, patch or minor version update to the Supplier Platform’s software; and
      • “Upgrade” means a major version upgrade of any Supplier Platform software.
    • In this Agreement, unless otherwise stated:
      • any reference to a statute shall, unless the context otherwise requires, be construed as a reference to that statute as from time to time amended, consolidated, modified, extended, replaced or re-enacted together with any secondary legislation made thereunder as from time to time amended, consolidated, modified, extended, replaced or re-enacted;
      • words such as “hereunder”, “hereinafter”, “hereto”, “hereof”, and “herein” and other words commencing with “here” shall unless the context clearly indicates to the contrary refer to the whole of this Agreement and not to any particular section or clause hereof;
      • except as otherwise provided herein, any reference to a section, clause, paragraph or sub-paragraph shall be a reference to a section, clause, paragraph or sub-paragraph (as the case may be) of this Agreement and any reference in a clause to a paragraph or sub-paragraph shall be a reference to a paragraph or sub-paragraph of the clause or paragraph in which the reference is contained unless it appears from the context that a reference to some other provision is intended;
      • any reference to any document includes that document as amended, replaced or supplemented from time to time;
      • any reference to a “person” includes any person, firm, company, governmental or other legal entity and its successors, personal representatives, heirs and permitted assigns;
      • unless the context otherwise requires, words importing the singular include the plural and vice versa, words importing the masculine include the feminine and vice versa and words importing persons include corporations and vice versa;
      • the headings in this Agreement are inserted for convenience of reference only and shall not be considered a part of, or affect the construction or interpretation of this Agreement;
      • the word “including” shall mean including without limitation or prejudice to the generality of any description, definition, term or phrase preceding that word, and the word “include” and its derivatives shall be construed accordingly;
      • the Schedules and each Statement of Work to this Agreement shall form an integral part of this Agreement and shall have full effect as if they were expressed in the body of this Agreement and the expressions “this Agreement” and “the Agreement” used in the Schedules and each Statement of Work shall mean this Agreement and any reference to “this Agreement” or “the Agreement” shall be deemed to include the Schedules and each Statement of Work; and
      • any times specified for the performance of any act, deed or thing (other than in respect of payment obligations) shall be estimates only and time for performance by the Supplier hereunder shall not be of the essence of this Agreement.
  1. TERM
    • Initial Term
      Subject to earlier termination in accordance with the terms of this Agreement, this Agreement shall come into force on the Commencement Date and shall remain in force for the Initial Term.
    • Automatic Renewal
      This Agreement shall automatically renew for one or more further periods of [12 months] from the end of the Initial Term or then current Extended Term unless either Party gives the other Party written notice of termination at least one hundred and twenty (120) days prior to the end of the Initial Term or such current Extended Term (as applicable) (each such further period being an “Extended Term”).
  1. SERVICES
    • Appointment
      The Customer appoints the Supplier for the Term as a provider of the Services and Deliverables to the Customer subject to and on the terms of this Agreement.
    • Statements of Work
      The Supplier shall perform certain Services and create certain Deliverables for the Customer as specified in one or more mutually signed SOWs. The Services will be provided during Business Days and during Business Hours unless specifically otherwise agreed in writing between the parties. The Supplier is not obligated to undertake, and the Customer is not obligated to purchase or pay for, any Services unless and until a SOW for such Services is executed and delivered by both Parties. The Term is only the period of time within which individual Statements of Work may be issued.The terms and conditions of each SOW are incorporated into this Agreement by reference, and the terms and conditions of this Agreement are incorporated by reference into each SOW.  In the event of a conflict or ambiguity between any term of this Agreement and a SOW, the terms and conditions of the SOW shall govern unless this Agreement or SOW expressly states otherwise in a particular instance. Each SOW shall be a complete statement of the relevant terms and conditions for the project to which it relates and shall supplement the terms and conditions of this Agreement solely for the purposes of such SOW. The Parties will attach SOWs to this Agreement and number them sequentially.
  1. SUPPLIER PLATFORM
    • Subject to compliance by the Customer with the terms of this Agreement, the Supplier hereby grants to the Customer a non-exclusive, non-transferable right to access and use the Supplier Platform during the Licence Term for the purposes of its operations but not otherwise.
    • All Intellectual Property Rights in the Supplier Platform shall, as between the Parties, belong and shall be the exclusive property of the Supplier or its relevant third party owners (as the case may be). For the avoidance of doubt, the Customer shall have no rights in or to the Supplier Platform other than the right to use it in accordance with the terms of this Agreement and the Customer has no right to access the object code or source code of the Supplier Platform, either during or after the Term.
    • Except as otherwise provided in this Agreement, to the extent that the Supplier provides the Supplier Platform to the Customer, the Customer must not, and must not permit others to:
      • reverse engineer, decompile, decode, decrypt, disassemble, or in any way derive source code from, the Supplier Platform;
      • modify, translate, edit, adapt, alter, or create derivative works from the Supplier Platform;
      • copy or otherwise exploit the Supplier Platform;
      • use the Supplier Platform in any way that causes, or may cause, damage to the Supplier Platform or impairment of the availability or accessibility of the Supplier Platform, or any of the areas of, or services on, the Supplier Platform; or
      • use the Supplier Platform in any way that is unlawful, illegal, fraudulent or harmful;
      • use the Supplier Platform in connection with any unlawful, illegal, fraudulent or harmful purpose or activity; or
      • distribute, sub-license, rent, lease, loan the Supplier Platform to any third party without Supplier’s prior written consent.
    • The Customer shall use best endeavours to prevent any unauthorised access to, or use of, the Supplier Platform and, in the event of any such unauthorised access or use shall
    • For the avoidance of doubt, the rights granted to the Customer hereunder with respect to the Supplier Platform are specific to the Customer entity.
    • The Customer agrees that access to the Supplier Platform is provided to the Customer on an “as is” basis.
    • The Customer shall receive any Updates that the Supplier may implement from time to time during the Term for no additional cost. If the Customer wishes to obtain any Upgrades that the Supplier may provide during the Term these may be purchased by the Customer from the Supplier for the Fees as may be notified by the Supplier to the Customer.
    • The Customer acknowledges and agrees that software programs, libraries or code which are licensed under forms of Open Source Software licences may be used, included or linked to in the Services (including in the Supplier Platform).
  1. ACCEPTANCE TESTING
    • Unless otherwise specified in a SOW, the Customer has ten (10) Business Days after Supplier’s delivery of a Deliverable or in respect of finalisation of the Integration Project only, the Integration Date, to review and test such Deliverable or Integration Services (the “Acceptance Period”) to ensure it is in accordance with the specifications in this Agreement and the applicable Statement of Work.
    • Acceptance of the Deliverable or Integration Services occurs upon the Customer’s written notification of acceptance to Supplier. If the Customer does not notify the Supplier of its acceptance or non-acceptance of a Deliverable or Integration Services before the end of the Acceptance Period the Customer will be deemed to have accepted the Deliverable or Integration Services.
    • If the Customer notifies the Supplier that the Deliverable, or any portion of it, or the Integration Services does not, in the opinion of the Customer (acting reasonably), meet the specifications in this Agreement and the applicable SOW, and is therefore not acceptable to the Customer, the Customer must promptly provide the Supplier with written reasons as to why, including details of each aspect of the Deliverable/Integration Services that is not acceptable. The Supplier will consider the Customer’s reasons and be provided with a reasonable time to try to remedy the defects (at its cost), before resubmitting the Deliverable/Integration Services for testing.
  1. SUPPORT SERVICES
    • To the extent that the Parties mutually agree in a SOW that the Supplier shall provide Support Services, such Support Services shall be provided subject to the terms of the SOW and the relevant Support Levels applicable to such Support Services shall be set out in the relevant SOW.
    • The Supplier shall make available to the Customer a helpdesk ticketing system, in accordance with the provisions of this main body of the Agreement (the “Support Desk”). The Support Desk shall be available during Business Hours on Business Days. Any queries or issues submitted by the Customer to the Support Desk will be responded to in accordance with the Service Levels. A Supplier Manager can also be purchased as part of the Support Services in accordance with the provisions of clause 23.5.
    • The Supplier shall provide the Support Services in accordance with the standards of skill and care reasonably expected from a leading service provider in the recruitment software industry.
    • The Customer may use the helpdesk for the purposes of requesting and, where applicable, receiving the Support Services, and the Customer must not use the Support Desk for any other purpose.
      The Supplier shall respond promptly, insofar as is reasonable, to all requests for Support Services made by the Customer through the Support Desk.
    • The Supplier may suspend the provision of the Support Services if any amount due to be paid by the Customer to the Supplier under this Agreement is overdue, is not the subject of a bona fida dispute and the Supplier has given to the Customer 30 days’ written notice, following the amount becoming overdue, of its intention to suspend the Support Services on this basis.
    • If the Customer notifies the Supplier that the Deliverable, or any portion of it, or the Integration Services does not, in the opinion of the Customer (acting reasonably), meet the specifications in this Agreement and the applicable SOW, and is therefore not acceptable to the Customer, the Customer must promptly provide the Supplier with written reasons as to why, including details of each aspect of the Deliverable/Integration Services that is not acceptable. The Supplier will consider the Customer’s reasons and be provided with a reasonable time to try to remedy the defects (at its cost), before resubmitting the Deliverable/Integration Services for testing.
  1. MAINTENANCE SERVICES
    • The Supplier shall provide the Maintenance Services to the Customer during the Term.
    • The Supplier shall, where reasonably practicable, give to the Customer at least 10 Business Days’ prior written notice of scheduled Maintenance Services that are likely to affect the availability of the Supplier Platform or are likely to have a material negative impact upon the Services, without prejudice to the Supplier’s other notice obligations under this Agreement. The Customer and the Supplier acknowledge and agree that in limited circumstances it will not be possible for the Supplier to give to the Customer at least 10 Business Days’ prior written notice of certain unexpected or unscheduled Maintenance Services that are required to be carried out.
    • The Supplier shall, where reasonably practicable, give to the Customer at least 10 Business Days’ prior written notice of the application of an Upgrade to the Supplier Platform.
    • The Supplier shall, where reasonably practicable, give to the Customer written notice of the application of any security Update to the Supplier Platform and 10 Business Days’ prior written notice of the application of any non-security Update to the Platform. The Customer and the Supplier acknowledge and agree that in limited circumstances it will not be possible for the Supplier to give to the Customer at least 10 Business Days’ prior written notice of certain unexpected or unscheduled security Updated that are required to be carried out to maintain the security and integrity of the Supplier Platform.
    • The Supplier shall provide the Maintenance Services in accordance with the standards of skill and care reasonably expected from a leading service provider in the recruitment software industry.
      The Supplier may suspend the provision of the Maintenance Services if any amount due to be paid by the Customer to the Supplier which is not the subject of a bona fida dispute under this Agreement is overdue, and the Supplier has given to the Customer 30 days’ written notice, following the amount becoming overdue, of its intention to suspend the Maintenance Services on this basis.
  1. SUPPLIER RESPONSIBILITIES
    • The Supplier shall:
      • perform its obligations under this Agreement in a professional and workmanlike manner consistent with applicable industry standards;
      • provide the Services and Deliverables, and perform its other obligations under this Agreement subject to, and in accordance with, all applicable laws, statutes, and regulations from time to time in force;
      • ensure that any Deliverables will be created in a timely, professional and workmanlike manner; and
      • liaise with the Customer where reasonably requested to update the Customer on the provision of the Services and
    • Deliverables and attend periodic relationship meetings with the Customer.
    • The Supplier shall allocate suitable Personnel with appropriate levels of skill, experience and training to provide the Services and Deliverables, and the Customer acknowledges and agrees that it may from time to time be necessary for Supplier to replace these Personnel with alternative Personnel with similar levels of skill and experience.
    • When the Supplier’s Personnel are working onsite at the Customer’s site, the Supplier shall procure that they comply with all of the Customer’s applicable policies and rules of conduct notified to the Supplier in advance.
  1. CUSTOMER RESPONSIBILITIES
    • The Customer shall:
      • pay the Integration Fees and Fees to the Supplier as provided in clause 11 and the applicable SOW;
      • co-operate with the Supplier in all matters relating to the Services;
      • assist the Supplier in the performance of the Services on a prompt and timely basis including making available to the Supplier in a timely manner all assistance, documents, information, data, items and other materials in any form (whether owned by the Customer or third party) required by the Supplier in connection with the Services, including any data, information or materials specifically identified in a SOW. The Customer shall be responsible for ensuring that all such information, data and materials are accurate and complete;
      • grant the Supplier access to premises, Customer Systems, equipment, technology, Customer Personnel and all facilities during the Customer’s normal business hours and as otherwise reasonably required by the Supplier to perform the Services in accordance with this Agreement;
      • perform its obligations under this Agreement subject to, and in accordance with, all applicable laws, statutes, and regulations from time to time in force;
      • provide the Supplier with such working space and office support (including building access, external internet access, necessary system access, and similar) as the Supplier may reasonably request from time to time;
      • organising and completing any acceptance testing in accordance with clause 6;
      • be responsible for the timely delivery of data, information and any other materials to being uploaded to the relevant Third Party Platform or the Supplier Platform and any items not being provided by the Supplier;
      • obtain and maintain all necessary licences and consents and comply with applicable laws as required to enable the Supplier to provide the Services; and
      • act reasonably and in good faith in relation to its, and the Supplier’s, rights and obligations under this Agreement.
    • The Supplier is not responsible for the acts and the omissions of the Customer in the course of or arising from the performance of Customer’s obligations under this Agreement. If the Supplier’s performance of its obligations under this Agreement is prevented or delayed by the acts and/or omissions of the Customer, the Supplier shall be relieved of that obligation for the period of time and to the extent that any unresolved Customer failure impacts the Supplier’s performance and the Supplier shall not be liable for any costs, charges, or losses sustained or incurred by the Customer that arise directly from such prevention or delay.
  1. CHANGE MANAGEMENT
    • If either Party wishes to change the scope or execution of the Services or there is a Material Change in the scope of the Integration Project or the Deliverables, it will submit details of the requested change to the other in writing.
    • If either Party requests a change to the scope or execution of the Services in accordance with clause 10.1, the Supplier will, within a reasonable time, provide a written estimate to the Customer of:
      • the likely time required to implement the change;
      • any necessary variations to the Fees arising from the change;
      • the likely effect of the change on the relevant SOW; and
      • any other impact of the change on this Agreement.
    • The Supplier has no obligation to proceed with any change unless and until the Parties have agreed in writing the necessary variations to the Fees, the Services, the text of the applicable SOW, and any other relevant terms of this Agreement, to take account of the change.
    • Notwithstanding any other provision of this Agreement, including (without limitation) clauses 10.1 to 10.3 (inclusive), the Supplier may:
      • from time to time, change the Services in order to comply with any regulatory, safety, security, legal or other statutory requirements, provided that such changes do not materially affect the nature, scope of, or the Fees for, such Services provided that the Supplier shall use reasonable endeavours to provide at least five (5) days prior notice of any such change; and/or
      • from time to time, review and vary the Fees in accordance with clause 11.7.
    • The Supplier may charge the Customer for the time the Supplier spends assessing and administering a request for change from the Customer on a time and materials basis at the Supplier’s then current rates as set out in its standard operating procedure provided by the Supplier to the Customer from time to time or as otherwise notified to the Customer.
  1. FEES AND INVOICING
    • Fees
      The Customer shall pay the Integration Fees to the Supplier on the Commencement Date.
    • In circumstances where there is a Material Change to the Integration Project or any Deliverable as set out in a SOW, then the parties agree that the Supplier may at any time review and amend the Integration Fee as is reasonably necessary in order to reflect such increase or decrease in cost and/or work in completing the Integration Project. The Supplier shall notify the Customer in writing immediately of any such amendment to the Integration Fee or other Fees.
    • The fees for the provision of the Services together with any Licence Fees are as set out in each SOW (together, the “Fees”).
    • Invoices
      The Customer shall pay the Licence Fees annually in advance of each 12 calendar month of the Term.
      Unless otherwise stated in a SOW, the Supplier shall submit invoices to the Customer for Services within five (5) days of the end of each calendar month. For the avoidance of doubt, invoices shall be issued monthly in arrears.
    • Payment
      Unless otherwise stated in a SOW or agreed between the Parties in writing, the Customer shall pay all undisputed amounts due to the Supplier within five (5) days of the date of the Supplier’s invoice. Each invoice from the Supplier shall contain sufficient detail to reasonably enable the Customer to verify the Fees shown in such invoice. If the Customer disputes an invoice it shall not be obligated to pay the disputed amount until the dispute is resolved, however it must pay all undisputed amounts by the due date.  All Disputes regarding invoices and shall be dealt with by the Parties in accordance with clause 22.
    • Invoice Disputes
      If Customer does not pay any undisputed amount due under the Agreement and/or the relevant Statement of Work by its due date and remains in default 10 days or more after being notified to make such payment, the Supplier may, without limiting any other right or remedy it may have under the Agreement or otherwise: (a) charge interest on the overdue amount at the rate of 3.5 per cent per annum above the base rate of the European Central Bank or, at the Supplier’s discretion, the central bank of the jurisdiction in which the Customer operates, from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment.
    • Fee Changes
      The Parties agree that Supplier may review and vary its rates and/or the Fees from time to time. The Supplier will give the Customer written notice of any such variation at least thirty (30) days before the effective date of that change. In circumstances where the Customer does not accept any variation or increase in the Fees, it shall be entitled to provide a notice within 10 Business Days of receipt of notice of the increase or variation in Fees to the Supplier terminating the Agreement, such termination becoming effective 120 days following the date of such notice.
    • Payment on Termination / Expiry
      All sums payable by Customer under the Agreement and/or a Statement of Work shall become due and payable in full immediately on termination or expiry of this Agreement and/or the relevant Statement of Work.
    • Taxes & Withholding
      All sums payable by the Customer to the Supplier under this Agreement:

      • are exclusive of all applicable taxes, including, but not limited to, sales, use, excise, value-added, goods and services, consumption and other similar taxes or duties, and the Customer shall in addition pay an amount equal to any taxes chargeable on those sums on delivery of an applicable invoice for the Services to which they relate; and
      • shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
    • Third Party Fees
      The Customer shall be solely responsible for the payment of all fees, additional charges and costs associated with the provision of any Third Party Platforms (“Third Party Fees”), unless such Third Party Fees are included under the SOW and payment is made by the Supplier as part of the Services.
  1. DATA PROTECTION
    • The Supplier shall comply with all applicable requirements of the Data Protection Legislation. This clause 12 is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation.
    • The Parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the controller and the Supplier is a processor (where  Controller and  Processor have the meanings as defined in the Data Protection Legislation). The parties acknowledge that any data hosting services used by the Customer will be a separate Processor and not a sub-processor of the Supplier.
    • Without prejudice to the generality of clause 12.1, the Customer will ensure that it has a lawful basis and all necessary notices in place to enable lawful transfer of the Personal Data to the Supplier for the duration and purposes of this Agreement.
    • Without prejudice to the generality of clause 12.1, the Supplier shall, in relation to any Personal Data processed in connection with the performance by the Supplier of its obligations under this Agreement:
      • ensure that it has in place appropriate technical and organisational measures in accordance with Best Industry Practice as may be reviewed and approved by the Customer from time to time, 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 (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
      • ensure that all Supplier Personnel who have access to and/or process Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality;
      • excluding any access to or use of the Supplier Software by any of the Licensed Users from a country outside of the European Economic Area (EEA) or routing of emails outside of the Supplier’s control, not transfer any Personal Data outside of the EEA without the documented instructions of the controller and where the following conditions are fulfilled:
        1. the Customer or the Supplier has provided appropriate safeguards in relation to the transfer;
        2. the Data Subject has enforceable rights and effective legal remedies;
        3. the transfer of such Personal Data outside of the EEA does not breach any provisions of the Data Protection Legislation; and
        4. the Supplier fully complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred;
    • notify the Customer without undue delay on becoming aware of a Personal Data breach;
    • at the written direction of the Customer, delete or return Personal Data and copies thereof to the Customer on termination of the agreement unless required by Applicable Law to store the Personal Data;
    • assist the Customer, at the Customer’s cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators; and
    • maintain complete and accurate records and information to demonstrate its compliance with this clause 12 and make available to the Customer any necessary information to demonstrate compliance with this clause 12.
  1. CONFIDENTIAL INFORMATION & PUBLICITY
    • Obligations of Confidentiality 
      A Party receiving Confidential Information (“Receiving Party”) from the other Party (“Disclosing Party”) agrees to treat as the confidential and exclusive property of the Disclosing Party all Confidential Information that is disclosed by the Disclosing Party in connection with this Agreement. The Receiving Party shall ensure that such Confidential Information is not used or disclosed by the Receiving Party (or by any of its Personnel) for any purpose other than as strictly necessary to perform its obligations under this Agreement. The Receiving Party shall, and shall procure that its Personnel shall, maintain at least the same degree of diligence in the protection of the Confidential Information disclosed to it as it uses with regard to its own confidential or proprietary information.
    • Disclosure
      The Receiving Party shall not disclose any Confidential Information of the Disclosing Party to any third party for any purpose without obtaining the prior written consent of the Disclosing Party, except: (a) to the Receiving Party’s Personnel who have a ‘need to know’ in order to perform its obligations under this Agreement; (b) to the extent required by a valid court order, law, rule, regulation (including any securities exchange regulation), or other governmental action provided that the Receiving Party takes all reasonable steps to: (i) provide the Disclosing Party with prompt written notice of and an opportunity to comment on such required disclosure; (ii) assists the Disclosing Party in any attempt to limit or prevent the scope of such disclosure; and (iii) secure the confidential treatment of such disclosure by the recipient(s) thereof consistent with the terms of this Agreement; and (c) as otherwise expressly permitted in this Agreement. If there are any disclosures of Confidential Information in breach of this Agreement, such Party shall immediately notify the other Party.
    • Without prejudice to clause 13.2, the Supplier may disclose Confidential Information including the terms or conditions of this Agreement: (a) on a ‘need-to-know’ basis to its legal and financial advisors to the extent such disclosure is reasonably necessary; and (b) to any bona fide potential investor, investment banker, acquirer, merger partner or other potential financial partner, and their attorneys, agents and advisors, in connection with: (i) any due diligence process; (ii) an equity or debt investment; (iii) a reorganisation, merger, consolidation, or similar transaction involving the Supplier; (iv) a purchase, acquisition, sale of all or substantially all of the assets of the Supplier, or similar transaction involving the Supplier; or (v) a collaboration or strategic alliance relating to the subject matter of this Agreement, provided that each such person to whom such information is to be disclosed is informed of the confidential nature of such information and has agreed to maintain the confidentiality of such information.
    • Exceptions in respect of Confidential Information
      Confidential Information does not include information that the Receiving Party is able to demonstrate: (a) was rightfully in its possession prior to receipt from the Disclosing Party, as evidenced by prior written records; (b) is now, or hereafter becomes, part of the public domain through no act or failure to act on the part of the Receiving Party or its agents or collaborators; (c) becomes known to the Receiving Party through disclosure by a third party lawfully having possession of such information and lawfully empowered to disclose such information; or (d) was independently developed by or on behalf of the Receiving Party without the aid, application, use or benefit of the Disclosing Party’s Confidential Information, as evidenced by prior written records.
    • Return or Destruction
      Each Party agrees that, upon the earlier to occur of: (a) the Disclosing Party’s written request; or (b) termination or expiration of this Agreement, the Receiving Party shall: (i) return to the Disclosing Party any or all parts of the Confidential Information the Disclosing Party provided to it in documentary or other tangible form, including all copies and other tangible embodiments thereof; or (ii) certify in writing that it has destroyed any or all Confidential Information in the Receiving Party’s possession and stored in then-accessible electronic or other media all papers from its information systems, provided however, that the Receiving Party may retain one copy of all Confidential Information for archival purposes only, with such copy not being used to develop, market or provide any services to any client, and being subject to perpetual prohibition upon disclosure to any third party, except as may become necessary to resolve any Dispute, or as otherwise provided under this Agreement.
    • Remedies
      The Parties agree that there is no adequate remedy at law if there is a breach or threatened breach of this clause 13 and further agree that either Party shall be entitled to seek injunctive or other equitable relief to prevent or remedy such breach in addition to any legal or equitable remedies available to such Party.
  1. INTELLECTUAL PROPERTY RIGHTS
    • Except as provided in this clause 14, nothing in this Agreement transfers ownership in, or otherwise grants any rights to or in, any Intellectual Property Rights of a Party.
    • The Customer acknowledges that all Intellectual Property Rights in the Supplier Platform, and any Intellectual Property Rights created as part of the Integration Project and in any Customer Materials or Deliverables belong to and shall remain vested in the Supplier. The Supplier reserves the right to grant permissions and licences to use the Supplier Platform to third parties.
    • Contract Material
      Unless otherwise specified in a SOW, the Supplier owns all rights (including Intellectual Property Rights) in the Contract Material, and the Customer must (at the Customer’s cost) execute all documents and do all things necessary to give effect to this clause.
    • The Supplier grants to the Customer a non-exclusive, non-transferable, royalty free, revocable licence to use the Contract Material for the sole purpose of using and receiving the benefit of the Services during the Term. The Customer must not sub-licence, assign, share, lease or otherwise transfer any right to use the Contract Material to any third party.
    • Customer Material
      Unless otherwise specified in a SOW, the Customer owns all rights (including Intellectual Property Rights) in the Customer Material.
    • The Customer grants to the Supplier a perpetual, worldwide, non-exclusive, royalty-free licence (including the right to sub-licence to the Supplier’s Personnel and Affiliates) to use, reproduce, modify, adapt and otherwise exercise all Intellectual Property Rights in the Customer Material to the extent necessary for the Supplier to perform its obligations under this Agreement.
    • Moral Rights
      The Customer must not do anything that is, or is likely to be, an infringement of, or otherwise inconsistent with any moral rights, whether under the Copyright and Related Rights Acts 2000 to 2007 (as amended) or under any similar laws in force from time to time in any part of the world.
    • Know How
      Despite any provision of this Agreement to the contrary, the Supplier shall be free to use any ideas, concepts, or know-how developed or acquired by it during the performance of this Agreement to the extent obtained and retained by the Supplier’s Personnel as impression and general learning. Nothing in this Agreement shall be construed to preclude the Supplier from using the Intellectual Property Rights of the Supplier for use with third parties for the benefit of the Supplier.
    • Usage Data
      As part of the Services, the Supplier shall select, compile and analyse de-identified, anonymised usage information generated in respect of user’s use of the Supplier Platform and related Services any system activity to create anonymised data sets and other insights (“Usage Data”). Usage Data and all Intellectual Property Rights therein are the exclusive property of the Supplier for all purposes including the provision of Services to the Customer and for improving the Supplier Platform and use by Supplier at any time in the future.
  1. WARRANTIES
    • Supplier Warranties
      The Supplier represents and warrants to the Customer that it shall:

      • perform all Services and create all Deliverables with care, skill and diligence, consistent with currently recognised applicable professional standards; and
      • be responsible for the professional quality, completeness and coordination of its analyses, findings, recommendations, and all information, Deliverables and Services furnished under this Agreement.
    • ExclusionsSubject to clause 16 but notwithstanding any other provision of this Agreement, the Supplier shall have no responsibility or liability of any kind, whether for breach of warranty or otherwise, arising or resulting from:
      • the Customer’s failure to: (a) correctly install any updates or other modifications to the Supplier Platform and/or the Services that the Supplier provides; (b) grant access and security authorisation to the Services to authorised Personnel of the Supplier; or (c) provide necessary communications interfaces and mechanisms for the Services;
      • errors resulting from misuse, abuse, negligence, or improper use of all or any part of the Services; or problems to or caused by products or services not provided by the Supplier;
        service modification, amendment, revision, or change by any party other than the Supplier or the Supplier’s Personnel; or
      • failures relating to the Customer’s premises and/or information technology environment including, but not limited to, electrical failure, Internet connection problems, or data or data input, output, integrity, storage, back-up, and other external and/or infrastructure problems, which shall be deemed under the Customer’s exclusive control and sole responsibility, except to the extent caused by any Services failing to perform in accordance with their specifications or documentation.
    • Disclaimer
      THE CUSTOMER ACKNOWLEDGES THAT COMPLEX SOFTWARE IS NOT ALWAYS AVAILABLE OR WHOLLY FREE FROM DEFECTS, ERRORS AND BUGS, AND THE SUPPLIER GIVES NO WARRANTY OR REPRESENTATION THAT THE SERVICES WILL BE UNINTERRUPTED OR BE FREE FROM SUCH DEFECTS, ERRORS AND BUGS, OR THAT THE SUPPLIER’S SERVERS AND SOFTWARE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE SUPPLIER’S SECURITY PROCEDURES AND MECHANISMS WILL PREVENT THE LOSS OR ALTERATION OF OR IMPROPER ACCESS TO DATA OR INFORMATION OR CONTENT BY THIRD PARTIES. THE SUPPLIER DOES NOT WARRANT OR REPRESENT THAT THE SERVICES AND DELIVERABLES WILL BE COMPATIBLE WITH ANY APPLICATION, PROGRAM OR SOFTWARE NOT SPECIFICALLY IDENTIFIED AS COMPATIBLE IN THE SOW. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE WARRANTIES IN THIS CLAUSE 15 ARE THE SUPPLIER’S ONLY EXPRESS WARRANTIES CONCERNING THIS AGREEMENT, AND ARE MADE EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES AND REPRESENTATIONS, EXPRESS, IMPLIED OR STATUTORY AND THE SUPPLIER HEREBY DISCLAIMS ALL OTHER WARRANTIES WITH RESPECT TO THE SERVICES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, INFORMATIONAL CONTENT, SYSTEMS INTEGRATION, NON-INFRINGEMENT, INTERFERENCE WITH ENJOYMENT OR OTHERWISE.]
    • Exclusive Remedy
      The Customer’s exclusive remedy under this Agreement shall be for the Supplier, in its sole discretion, to use commercially reasonable efforts to either: (a) correct any material non-conformity; or (b) to re-perform the materially non-conforming Service or re-provide the materially non-conforming Deliverable.
  1. LIMITATIONS OF LIABILITY
    • Neither Party excludes or limits liability to the other for any matter for which it would be unlawful for such Party to exclude or limit liability.
    • Subject to clause 16.1, under no circumstances shall the Supplier be liable, whether in contract, tort (including negligence), for breach of statutory duty, or any other legal theory, arising under or in connection with this Agreement (including all Statements of Work) for any: (a) loss of profits; (b) loss of sales or business; (c) loss of agreements or contracts; (d) loss of anticipated savings; (e) loss of revenue; (f) loss of use or corruption of software, data or information; (g) loss of or damage to goodwill; (h) business interruption; or (i) indirect or consequential loss, even if it had been advised of, knew, or should have known, of the possibility thereof.
    • Subject to clauses 15, 16.1 and 16.2, under no circumstances shall the Supplier’s total aggregate cumulative liability under or in connection with the performance or contemplated performance of this Agreement (including all Statements of Work), whether arising in contract, tort (including negligence), for breach of statutory duty, or any other legal theory, exceed [the average annual Fees (calculated by reference to the Fees in successive 12 month periods from the Commencement Date) paid by the Customer for the Services related] / [AMOUNT] (Limitation of liability to be considered by Autonifai – RW would see 12 months’ fees as being of a generally accepted market standard, depending on the value of the contract.)
  1. INDEMNITY
    • The Supplier shall indemnify the Customer against all costs, expenses, damages and losses paid by way of final settlement to a third party claimant that are paid by the Customer as a result of any claim brought against the Customer by that third party for actual or alleged infringement of the Intellectual Property Rights of that third party to the extent that the infringement or alleged infringement arises directly out of, or in connection with, the receipt, use or supply of the Services or Deliverables. The Customer shall have no claim under this indemnity to the extent the claim arises out of any modification of any materials provided by Supplier, relates to services or materials provided by a third party in conjunction with the Services or Deliverables, or is caused or contributed to by the Customer.
    • If the Supplier is required to indemnify the Customer under this clause 17, the Customer shall:
      • immediately notify the Supplier in writing of any actual or potential claim, suit or action against it in respect of which it wishes to rely on the indemnity (“IPR Claim”);
      • take all steps necessary to mitigate any costs, expenses, damages and losses arising out of or in connection with the IPR Claim;
      • allow the Supplier, at its own cost, to conduct all negotiations, control and direct the defence and all proceedings, and to settle the IPR Claim;
      • provide the Supplier with such reasonable assistance regarding the IPR Claim as is required by the Supplier; and
        not, without prior consultation with the Supplier, make any admission relating to the IPR Claim or attempt to compromise or settle it.
  1. TERMINATION
    • Termination for Cause
      Without prejudice to any other remedy that either Party may have, either Party shall have the right to suspend or terminate (in whole or in part) this Agreement and/or any SOW on written notice, effective immediately, at any time if the other Party:

      • is in material breach of this Agreement and/or any SOW and the breach is irremediable or (if such breach is remediable) the breach has not been remedied within twenty (20) Business Days of a written request to do so; or
      • suffers an Insolvency Event.
    • Termination for Non-Payment
      Without prejudice to the provisions of clause 18.1 or any other right or remedy that the Supplier may have, the Supplier may suspend or terminate (in whole or in part) this Agreement and/or any SOW on written notice, effective immediately, at any time if the Customer does not pay any undisputed amount due under the Agreement and/or the relevant Statement of Work by its due date and remains in default 10 days or more after being notified to make such payment.
  1. CONSEQUENCES OF TERMINATION
    • Consequences of Termination
      In the event of termination or expiry of this Agreement in its entirety:
    • the Supplier shall discontinue performing all Services;
    • the Customer shall have no further right to use the Services nor to use the Supplier’s name, logo or marketing materials, nor to hold itself out as having any connection with the Supplier;
    • without prejudice to clause 13.5, at the election of the Supplier (in the Supplier’s sole discretion), the Customer shall promptly, destroy or return to the Supplier: (a) any equipment, data, information, software, advertising, Contract Material, promotional or sales material relating to the Services or this Agreement then in the possession of the Customer that were supplied by or at the cost of the Supplier; and (b) any materials created by the Customer at the Customer’s cost that bear the Supplier’s name or logos; and
    • the Customer shall immediately pay the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of the Services supplied but for which no invoice has been submitted, the Supplier may submit an invoice, which shall be payable immediately on receipt by the Customer.
    • In the case of a termination or expiry that relates solely to a single SOW, effective upon the date of termination,
      • the Supplier shall discontinue performing all Services under that SOW; and
      • the Customer shall immediately pay the Supplier for all Services performed under that SOW up to the date of termination no later than ten (10) days after the applicable date of termination or expiry.
    • SOW Term
      Unless the Parties specifically agree in writing, any suspension or termination of an individual SOW in accordance with the terms of this Agreement shall not affect any other remaining SOWs or this Agreement and this Agreement shall continue to govern such SOWs until they are terminated. However any suspension or termination of this Agreement shall result in the suspension or termination (as applicable) of all then currently executed SOW(s) in effect.
    • Optional Termination Assistance
      Following the termination or expiry of this Agreement and/or a SOW, the Customer may wish the Supplier to provide it with assistance to transition all or part of the work in progress, duties, files and relevant information connected with the applicable SOW or this Agreement to the Customer. If the Supplier agrees to provide such optional termination assistance then prior to the Supplier commencing these services the Parties shall mutually agree in writing the scope, duration and additional charges payable by the Customer for such services.
    • Survival
      Termination or expiry of this Agreement or any SOW, for any reason, shall not affect the accrued rights, remedies, obligations or liabilities of the Parties existing as at the date of termination or expiry. Other than as set out in this Agreement, the following clauses shall continue to apply after the termination or expiry of this Agreement: clauses 4.3, 9, 11, 12, 13, 14, 15, 16, 17, 19, 20, 22, 23 and 26.
  1. INSURANCE
    • Unless expressly stated otherwise in a SOW, each Party shall:
      • at its own expense, obtain and maintain appropriate insurance policies with a reputable insurer;
      • provide current evidence as may reasonably be requested by the other Party that it complies with this clause 20; and
      • obtain and maintain the insurance policies referred to in clause 20.1.1 for the Term of this Agreement or any relevant Statement of Work (whichever is longer), for insurance provided on an occurrence basis.
  1. FORCE MAJEURE
    • Aside from obligations to make payments pursuant to this Agreement, no Party is liable to the other Party for any delay or non-performance of its obligations under this Agreement arising from any cause or causes beyond its reasonable control (a “Force Majeure Event”).
    • If a Party becomes aware of any Force Majeure Event which gives rise to any failure or delay, or which appear likely to do so, that Party will promptly give notice to the other Party of those circumstances as soon as practicable and will inform the other Party of the period for which it estimates the failure or delay will continue, and shall immediately undertake all commercially reasonable steps to prevent or remedy such circumstances of the Force Majeure Event.
    • If the Force Majeure event continues for a period in excess of sixty (60) consecutive days, then either of the Parties may terminate this Agreement and/or an affected SOW immediately.
  1. DISPUTE RESOLUTION
    • In the event of any Dispute between the Parties, the Parties shall attempt to resolve any such Dispute by escalation as follows:
      • initially, by negotiation between the Parties’ nominated representatives (which may include those persons nominated pursuant to clause 24.1);
      • if the nominated representatives shall fail to resolve the Dispute within 10 Business Days of the Dispute being referred to them, by the referral to, and negotiation between senior managers of the Parties; and
      • if such senior managers shall fail to resolve the Dispute within 15 Business Days of the Dispute being referred to them, either Party may proceed to initiate arbitration proceedings in accordance with clause 22.2 below.
    • Arbitration: In circumstances where the Parties cannot resolve a dispute following the procedure set out in clause 22.1 above, any dispute question or difference whatsoever which may at any time hereafter arise between the parties arising out of or in connection with this Agreement shall be, and is, referred to the arbitration of a person to be agreed upon by the Parties or, in default of agreement, appointed by the President for the time being of the Law Society of Ireland upon the application of either Party, or in the event of his being unwilling or unable to do so, by the next senior officer of the Law Society of Ireland who is willing and able to make the appointment.  The provisions of this clause with regard to the appointment of the arbitrator shall apply also to the appointment (whether by agreement or otherwise) of any replacement arbitrator where the original arbitrator (or any replacement) has been removed by order of the High Court, or refuses to act, or is incapable of acting, or dies.  Each and any such arbitration shall be subject to the provisions of the Arbitration Act 2010 and the place of arbitration shall be Dublin, Irealnd, unless otherwise agreed by the Supplier in writing.
  1. NOTICES
    • Notices and other communications to any Party to this Agreement required or permitted hereunder or any proceedings relating must be in writing and will be sufficiently served:
      • if delivered by hand; or
      • if sent by registered post,
        at the respective addresses of each Party set out on page 3 of this Agreement or to such other address as is from time to time notified in writing to the other Party in accordance with this clause 23.
    • Any such notice or communication is deemed to have been served:
      • if delivered by hand, at the time of delivery; or
      • if sent by pre-paid registered post, 48 hours after posting;
        provided that any such delivery, transmission or postage outside the hours of 9.00a.m. to 5.30p.m. is deemed to have been served on the next Business Day.
    • This clause 23 does not prevent a Party sending the other Party routine correspondence in relation to the Services or Deliverables by email.
  1. GENERAL
    • Entire Agreement
      This Agreement constitutes the entire agreement between the Parties with respect to its subject matter and supersedes all prior promises, representations, understandings, arrangements, practices, agreements, letters of intent, correspondence, proposals or heads of agreement and other communications, whether written or oral, concerning the same which are hereby revoked by mutual consent of the Parties. Each Party acknowledges that in entering into this Agreement it has not relied on any warranty, representation, collateral contract or assurance (written or oral, express or implied) by the other Party to this Agreement or by any other person that is not set out in this Agreement or the documents referred to in it.  Nothing in this clause 24.1 shall operate to limit or exclude any liability for fraud or fraudulent misrepresentation.
    • Assignment
      The Customer shall not assign, novate or otherwise deal with or encumber any right or obligation under or in connection with this Agreement except with the prior written consent of the Supplier.
      The Supplier may from time to time assign, novate or otherwise transfer or sub-contract its rights and/or obligations under this Agreement in whole or in part without the consent of the Customer. The Customer shall execute all documents necessary to give effect to any novation or assignment permitted under this clause 24.3.
    • Relationship of Parties
      The Customer and the Supplier are independent contractors, and nothing in this Agreement shall constitute the creation, establishment or relationship of partnership, or of principal and agent, or joint venture or employer and employee between the Parties, and nothing herein shall give the Customer the authority to negotiate or conclude the sale of any goods or services for or on behalf of the Supplier.
    • Rights and Remedies
      The rights and remedies of the Supplier provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
    • Amendment
      Subject to clause 10 and clause 11.8, this Agreement may only be modified or amended with the written agreement of the authorised representative of both Parties.
    • General Warranty
      Each Party represents and warrants to the other that:
    • it is validly existing under the laws of its place of incorporation and has the power and authority to carry on its business as that business is now being conducted;
    • it has the power and authority to enter into and perform its obligations under this Agreement; and
    • entering into and performing its obligations under this Agreement will not breach any contractual obligations it owes to any other person.
    • Third Party Rights
      Unless this Agreement expressly provides otherwise, it contains no stipulations for the benefit of a third party which could be invoked by a third party against any of the Parties to this Agreement.
    • Counterparts
      This Agreement and any SOW hereto: (a) may be executed in counterparts, each of which shall be deemed to be an original and all of which, taken together, shall constitute a single agreement binding on the Parties; and (b) will be considered executed by a Party when the signature of such Party is delivered physically or electronically to the other Party. The Parties agree that any signature delivered physically or electronically shall have the same force and effect as an original signature.
    • Severability
      If any of the provisions of this Agreement (or part thereof) is found by a court of competent jurisdiction or any other competent authority to be void, invalid or unenforceable, it shall be deemed to be deleted from this Agreement and the remaining provisions (or part thereof) shall not be affected and shall continue to apply.
    • Waiver
      No failure or delay by a Party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
    • Governing Law and Jurisdiction
      The formation, existence, interpretation, operation and termination of the Agreement, and all matters and Disputes arising out of or in connection with this Agreement (including non-contractual disputes or claims) is or are (as applicable) subject to Irish law and the Parties each irrevocably submit to the exclusive jurisdiction of the Irish courts.