Whereas the Parties hereto have entered into a Software as a Service Master Agreement (the “Original Agreement” which incorporates the Supplier’s Order Form, Data Processing Agreement, Privacy and Cookies Policy and Support Terms) dated April 2021 for the licensing or supply of Software by the Supplier to the Client, this Agreement along with any Schedules / SOWs hereto shall govern the provision of any Professional Services by Supplier to the Client.
NOW IT IS HEREBY AGREED AS FOLLOWS:
In this Agreement the following definitions apply:
“Client Content” means any content provided by the Client to the Supplier to be used, or incorporated into, the Professional Services output and / or any content created by the Client utilising the Software
“Documentation” shall mean specific software user manuals and technical literature as shall be provided by the Supplier for use of the Software;
“Fees” shall mean the Professional Service Fees as set out in either the SOW or the Fees Schedule appended to this Agreement.
“Final Payment” shall mean a sum equal to 50% (fifty per cent) of the aggregate of the Fees
“Initial Payment” shall mean a sum equal to 50% (fifty per cent) of the aggregate of the Fees.
“Intellectual Property Rights” shall mean all intellectual property rights including without limitation, patents, inventions, copyright (including but not limited to all rights in respect of software), trademarks, database rights, design rights, topography rights, whether or nor any of these is registered and including any applications for registration of any such rights, know-how, confidential information and trade secrets (including designs, processes or products which are to become or may become the subject of an application as aforesaid) and all rights or forms of protection of a similar nature of having similar effect to any of these which may exist anywhere in the world.
“Premises” shall mean the physical premises of the Client the details of which (if required) shall be set out in the Original Agreement or any relevant Schedule or SOW hereto,
“Professional Services” shall mean agreed customisation / implementation / integration / content creation services related to the Software to be provided by the Supplier to the Client as set out in the SOW hereto;
“Project Manager” the person to be designated by both the Client and Supplier as the main point of contact between the other in relation to the Services.
“Professional Service Fees” shall mean the fees to be charged by Supplier to the Client, or the Fee calculation basis, in respect of the Professional Services the details of which are set out in the SOW hereto;
“Review Period” means the period of 30 days from the date of this Agreement.
“Services” shall mean the Professional Services to be provided by the Supplier to the Client pursuant to the terms of this Agreement the details of which are set out in the SOW hereto;
“Software” shall mean the object code programs in machine readable form being licensed by Supplier to the Client pursuant to the terms of the Original Agreement;
“SOW” shall mean the document scheduled to this Agreement setting out the Services to be provided by Supplier and the Fees to be paid by the Client (if such Fees are not stated in this Agreement);
Headings in this Agreement are inserted for convenience only and shall not affect interpretation.
In this Agreement the singular shall be deemed to include a reference to the plural and vice versa;
2.1 Fees are payable as set out below, on production of invoices by Supplier to the Client or as otherwise stated and agreed in a SOW.
2.2 On signing of this Agreement the Supplier shall issue to Client an invoice in respect of the Initial Payment and such invoice is payable within 2 days of receipt by the Client. The Supplier will not be oblige to commence supply of any part of the Services until such time as the invoice for the Initial Payment is paid in full.
2.3 Upon the Supplier and the Client executing a certificate (in such format as may be agreed by the parties) confirming that the Services have been supplied by the Supplier in accordance with the SOW, or in the absence of the Client signing such certificate at such time as the Supplier, in its reasonable opinion, regards the Services as having been supplied in full in accordance with the Sow the Supplier shall issue and invoice to the Client in respect of the Final Payment. This invoice for the Final Payment shall be payable within 30 days of receipt by the Client.
2.4 Fees stated in this Agreement are exclusive of all reasonable expenses incurred by Supplier in implementing this Agreement including, but not limited to, travel and airfares in accordance with Supplier’s travel policy from time to time, international class hotel accommodation acceptable to Supplier, and Supplier’s daily expense rate for employees in accordance with its current policy from time to time. The Client will reimburse all expenses incurred by Supplier’s personnel in connection with the provision of Services within fourteen days of being invoiced for same. Unless agreed otherwise by Supplier flights and hotel accommodation for Supplier’s personnel as outlined above shall be arranged and paid for by the Client.
2.5 Professional Service Fee rates are based on a seven hour working day. Extra hours in a day are charged pro rata at the daily rate. Public Holidays, weekend days, and any work carried out between the hours of midnight and 8 am in the country of Premises location are charged at twice the daily rate. Waiting time and days traveling to and from the Premises incurred by Supplier in connection with the provision of services is charged at the relevant daily service fee rate. If any work to be carried out by Supplier has been scheduled and agreed and the Client cancels this work without giving Supplier two weeks written notice, then the Client agrees to pay 25% of the fee quoted for this work.
2.6 Payment of Fees shall be made direct to Supplier or to its principal bank account or by such other standard payment process as Supplier may from time to time request, and time of payment shall be of the essence of this Agreement. If the Client fails to pay any amount payable by it under this Agreement by the due date for payment, the Supplier may charge the Client interest on the overdue amount (payable by the Client immediately on demand) from the due date up to the date of actual payment, after as well as before judgment, at the rate of 5% per annum. Such interest shall accrue on a daily basis at the rate of 0,022% and be compounded quarterly.
2.7 Fees stated in this Agreement are stated and payable net. The costs of all Government or statutory duties, charges, levies, sales tax or impositions without limitation, arising in relation to this Agreement and the Licence hereby granted shall be borne by the Client.
3. Provisions of Services
3.1 In relation to the provision of any Professional Services the parties will endeavour to agree the SOW in relation to the project prior to any installation work being carried out remotely or on Premises.
3.2 For any installation services provided as part of the Services the Client will ensure that a suitably qualified employee or agent of the Client will be at the Premises or available via remote communication on the date of installation of the Software and that the Premises is prepared (if the Services are not delivery remotely) (including without limitation, the installation of any specified operating environment) so that Supplier can commence uninterrupted installation of the Software. The Client will pay all costs incurred by Supplier by reason of the Client’s failure to prepare the Premises in accordance with this Clause 3.2.
3.3 The Client shall facilitate Supplier in the provision of all Services under this Agreement. This shall include (but is not limited to) the provision of access to equipment and data and the provision of adequate facilities (either remotely or at any Premises, which Supplier’s personnel may attend to provide services and the provision of the Client’s personnel where necessary. The Client shall also provide assistance and advice regarding visa, permits, accommodation, personal security and such other matters as may arise to enable Supplier’s personnel to provide mutually agreed services at whatever location of the Client the same need to be performed (if Services at the Client’s Premises are required). The Client shall also provide assistance and advice to facilitate such personnel wishing, for any reason and at any time, to return home.
3.4 The Client shall have no cause of action against personnel of Supplier under or in connection with this Agreement, irrespective of the basis of claim, without the express consent in writing of Supplier.
3.5 Where the Services include development of integration application, equipment or software between the Software and other hardware or software systems (“External Systems”) in use by the Client, then: -
3.5.1 the Client shall provide Supplier with access to detailed documentation of those systems and all needed technical specifications; and
3.5.2 the Client shall provide access to a test Back Office system and install operative copies of all relevant software, databases, and development utilities or software (such as compilers, editors, etc.) on dedicated hardware for development and test purposes at a location nominated by Supplier; and
3.5.3 assistance in development from the Client or third parties is to be provided at the Client’s cost. The Client will make all reasonable endeavours to procure the full co-operation of any third parties, including software suppliers in providing necessary assistance, granting of temporary licences, or additional detailed documentation as required to effect the above provision; and
3.5.4 the Client shall be responsible for ensuring that no third party Intellectual Property Rights are breached in the integration of the Software to External Systems; and
3.5.5 All communications passing between the parties hereto in relation to the operation and performance of this Agreement are channelled through each parties Project Manager and that all requests by Supplier for information relating to the proper performance of its obligations herein shall be promptly responded to by the Client through the Client’s Project Manager; and
3.5.6 The Client’s Project Manager is at all material times available remotely or at the Premises;
3.6 If the Client does not comply with its access, assistance information obligations (following reasonable notice from the Supplier if relevant) as set out in clause 3.5 above the Supplier cannot guarantee that it will be able to provide the Services in accordance with the SOW and in such circumstances the Supplier shall not have any liability (of whatsoever nature) for any failure to provide the Services (in full or in part, or in accordance with any timelines set out in the SOW).
3.7 In the case of significant projects (as determined by Supplier) the Client shall convene Steering Committee meetings at such times as may be agreed between the parties (but at least once a month) at which relevant senior executives of the Client shall attend.
4.1 Access by or on behalf of either party to any premises, equipment or data of the other shall be subject to the other’s written security and safety regulations.
4.2 The Client is responsible for all security aspects of the Premises and the Client’s operating environment including but not limited to, access to the Premises and the operating environment, configuration of firewalls, routers, switches, web-servers etc.
5. Reservation of Rights
5.1 Other than as specified in clause 5.3 in relation to Client Content, all Intellectual Property Rights arising from any work done in the course of this Agreement (including all work relating to or incorporated in future releases or in any parameterisation, modification, translation or integration) shall automatically vest exclusively in Supplier and Supplier shall be entitled to retain and use copies of any such work in electronic or digital format.
5.2 The Client acknowledges that all the Intellectual Property Rights vest and shall remain vested exclusively in Supplier, that the Client’s rights in respect of the Software and the Documentation are confined solely to the Licence expressly granted under the Original Agreement.
5.3 The parties agree and acknowledge that all Intellectual Property Rights in Client Content vest and shall remain vested exclusively in the Client.
5.4 The Client warrants to the Supplier that it has the legal right to use the Client Content in the manner as may specified to the Supplier and hereby agrees to indemnify the Supplier, and hold the Supplier harmless, in relation to any claim by a third party that the use by the Supplier of the Client Content in the provision of the Professional Services infringes the Intellectual Property Rights of such third party.
6. Confidential Information
6.1 Each party undertakes to treat as confidential all confidential information disclosed to it in the course of this Agreement relating to the business, products and services of the other. Each party shall protect any such information received by using the same care and precautions as are or ought to be used in keeping confidential its own confidential information. The undertakings of the parties in this sub-clause do not apply to the extent that through documentary or other substantial proof the recipient can show that;
6.1.1 the information was already properly in the possession of the recipient and at its free disposal prior to receipt hereunder;
6.1.2 the information is hereafter disclosed to the recipient without any obligation of confidence by a third party which has not derived it directly or indirectly from the disclosing party; or
6.1.3 the information was or becomes generally available to the public in publications in general circulation through no act or default on the part of the recipient
6.2 Either party may disclose information to such authorities as may be empowered by law to demand disclosure to the extent that such disclosure is required provided however that each party will provide each other with as much notice as is possible in relation to such disclosure obligations, will provide each other with reasonable assistance in dealing with such request and will use reasonable endeavours to avoid any such disclosure.
7. Limitation of Liability
7.1 Except for conditions, warranties and representations expressly stated in this Agreement or which by Law may not be excluded, all express or implied conditions, warranties and representations howsoever arising are hereby expressly excluded.
7.2 The cumulative maximum liability of Supplier under or in connection with this Agreement irrespective of the basis of claim shall be limited in each successive year of this Agreement to the Fees received hereunder by Supplier in that year (a year for this purpose is the twelve month period expiring on the anniversary of the date of this Agreement).
7.3 Supplier does not purport to exclude or limit liability where such exclusion or limitation is precluded by the law applicable to this Agreement.
7.4 The parties agree that the limitations and exclusions contained in this Agreement are reasonable having regard among other things to their respective businesses, to the nature of the work involved, to their respective capacities to protect and insure against risk and to the fees arising under this Agreement.
7.5 the Supplier shall not in any circumstances have any liability for any losses or damages which may be suffered by the Client (or any person claiming under or through the Client), whether the same are suffered directly or indirectly or are immediate or consequential, and whether the same arise in contract, tort (including negligence) or otherwise howsoever, which fall within any of the following categories;
7.5.1 special damage even if the Supplier was aware of the circumstances in which such special damage could arise;
7.5.2 loss of anticipated savings;
7.5.3 loss of business opportunity;
7.5.4 loss of goodwill; and
7.5.6 loss or corruption of data.
8. Force Majeure
Neither party shall be liable for failure or delay in the performance of its obligations under this Agreement to the extent that such failure or delay is caused by matters beyond that party’s reasonable control including but not limited to destruction arising out of war, rebellion, civil commotion, strikes, lockouts and industrial disputes, fire, explosion, earthquake and/or other seismic activity, acts of God, flood, drought or bad weather, the unavailability or other media or other acts or orders of any government department, council or other constituted body. Notice of these circumstances shall be given to the other party as soon as practicable. For so long as performance of those obligations is suspended the other party may similarly suspend performance of its obligations.
9. Duration and Termination
9.1 This Agreement commences on the date specified at the head of this Agreement and continues until terminated on the date of termination of the Original Agreement or if earlier by (a) notice in writing from either party as herein provided (b) as may be provided for in the SOW.
9.2 The Client may terminate this Agreement at any time within the Review Period upon 7 days’ notice to the Supplier. If the Client terminates the Agreement pursuant to this clause 9.2 the Initial Payment shall not be refunded to the Client but the Client shall not be obliged to thereafter pay any portion of the Final Payment.
9.3 The Client may terminate this Agreement by three (3) months’ notice in writing to Supplier at any time after the Review Period. If the Client terminates the Agreement pursuant to this clause 9.3 the Client shall be immediately obliged to make payment of the Final Payment to the Supplier
9.4 Either party may terminate this Agreement forthwith by notice in writing: -
9.4.1 if the other party breaches or is in breach of any provision of this Agreement and does not, within 30 days of being notified of the breach, remedy the same (if capable of remedy) or (if incapable of remedy) offer adequate compensation thereof; or
9.4.2 if an administrator, receiver or liquidator is appointed in connection with the other party or any part of its business, or it is otherwise insolvent.
9.5 If the Supplier terminates the Agreement pursuant to clause 9.4 the Client shall be obliged to immediately pay such portion of the Final Payment as represents that portion of the Services as have been supplied by the Supplier to the Client up to the date of termination.
9.6 Termination, for any cause, shall it prejudice those obligations and limitations (including Clauses 5, 6, 7, 9 and 10) which of their nature and meaning survive.
10. Law and Jurisdiction
10.1 This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of Ireland.
10.2 The Parties irrevocably agree that the courts of Ireland shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims)..
Any notice to be given hereunder shall be in writing delivered to the relevant party at its address contained in the SOW (or such other address as shall have been notified to the other party) by registered or recorded delivery, post or email. Notices sent by registered or recorded delivery post shall be deemed to have been delivered ten days after the date on which the notice is posted, notices sent by international courier shall be deemed to have been delivered three working days after the date on which it is dispatched, notices sent by email shall be deemed delivered when the sender’s network records delivery of the email to the receivers network
12. Status of Agreement
12.1 This Agreement (including its Schedules and SOWs) shall be the complete and exclusive statement between the parties governing the subject matter of this Agreement, superseding all related proposals, statements and arrangements and any other written or other communication between the parties. No amendment of this Agreement shall be effective unless in writing, stated to be an amendment to this Agreement and signed by an authorised signatory of each party.
12.2 No failure, delay, or indulgence on the part of either party in exercising any right of that party pursuant to this Agreement shall operate as a waiver of that right.
12.3 Where any provision in this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable then the provision shall be given effect to in such reduced form as may be agreed between the parties. Where that agreement is not made and so recorded in writing then this Agreement shall continue as if the relevant provision did not exist.
The Client shall not assign, sublicense or transfer this Agreement or any of its rights or obligations hereunder without the prior written consent of Supplier. Supplier may assign this Agreement to any associate company, subsidiary, holding company or to any successor to its business or relevant part of that business.
14. Execution of Agreement
Each party and the signatories of the respective parties to this Agreement warrant authority to execute this Agreement by signature of the various signatories hereto.
As set out in the SOW