Please read carefully before ordering or downloading the software solution
This contract (this "Agreement") is made between the Customer (“you” as set out in the Order Form) and FlowForma Limited whose registered office is at 1st Floor, Block E, Eastpoint Business Park, Dublin 3, Ireland (“FlowForma” or “we” or “us”) for the Service.
Your Order Form contains all the details about your purchase, including your subscription term, Service purchased and the price.
IMPORTANT NOTICE: BY ORDERING, DOWNLOADING OR OTHERWISE ACCESSING THE SERVICE OR BY CONFIRMING THE ORDER AS PART OF THE DOWNLOADING OR ORDERING PROCESS, YOU AGREE TO THE TERMS OF THIS AGREEMENT.
Table of Contents
4 Support Services
5 Customer Obligations
6 Proprietary Rights
7 Third Party Providers
8 FlowForma’s Obligations
9 Your Obligations
11 Limitation of Liability
13 Term and Termination
14 Effects of Termination
16 Data Protection
17 Force Majeure
20 Export Laws
21 Entire Agreement
24 No Partnership or Agency
25 Third Party Rights
26 Rights and Remedies
28 Governing Law & Jurisdiction
The following definitions shall apply in this Agreement:
“Access”, your own passwords, accounts and/or access and the license key(s) and any other access codes issued by us that together enable access to and use of all or part of the relevant Service (as applicable);
“Authorized Users”, those employees, agents and independent contractors of yours who are authorized by you to use the relevant Service, the limit in respect of which (subject to reasonable decoupling) is set out in the Order Form or Renewal Invoice (as applicable);
“Business Day”, any day which is not a Saturday, Sunday or public holiday in Ireland;
“Change of Control”, the direct or indirect acquisition of either the majority of the voting stock, or of all, or substantially all, of the assets, of a party by another entity in a single transaction or a series of transactions;
“Confidential Information”, information that is proprietary or confidential and is either clearly labelled as such or otherwise identified as Confidential Information;
“Customer Data”, the data inputted by you, Authorized Users, or us on your behalf for the purpose of using the Service or facilitating your use of the Service;
“Documentation”, the user manuals accessible or made available to you by us via the Service or such other means as may be notified by us to you from time to time which sets out a description of the Service and the user instructions for the Service;
“Initial Term”, the initial term of the Agreement as set out in the Order Form;
“Intellectual Property Rights”, patents, rights to inventions, copyright and neighboring and related rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, 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 and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;
“Order Form”, the document in electronic format detailing the commercial terms relating to your subscription for the Service, as part of the order/renewal process (as applicable), referred to as the “Renewal Invoice” in respect of a Renewal Term where the Initial Term has expired, also referred to as the “Quote”;
“Price” the price of the Service as set out in an Order Form or Renewal Invoice (as applicable);
“Renewal Date”, the periodical times/dates on which the Price become due and payable for commencement of a Renewal Term as set out in the Order Form or the Renewal Invoice (as applicable);
“Renewal Term”, the 12 month period after the Initial Term;
“Service” all of our web-based applications, tools and platforms that you have subscribed to under an Order Form and which are developed, operated, and maintained by us, and any ancillary products and services;
“Service List” the description of the Services provided by us which is accessible via the URL set out the Order Form;
“Standard Business Hours”, 9.00am to 5.30pm Irish time on Business Days;
“Start Date”, the date that the Access is made available by us, as set out in the Order Form;
“Term”, the Initial Term and any Renewal Terms (as applicable);
“Virus”, any thing or device (including any software, code, file or program) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any program or data, including the reliability of any program or data (whether by re-arranging, altering or erasing the program or data in whole or part or otherwise); or adversely affect the user experience, including worms, Trojan horses, worms, time-bombs, keystroke loggers, spyware, adware, viruses and other similar things or devices.
2.1 The Service you are subscribing for is set out in the Order Form and a description of the Services provided by us are set out in the Service List. Subject to the restrictions set out in this Agreement, and in consideration of the payment of the Price by you to us we hereby grant to you a non-exclusive, non-transferable license to permit the Authorized Users to use the relevant Service in respect of the number of Authorized Users, and/or other applicable features set out in the Order Form during the Term solely for your internal business operations or as otherwise agreed by the parties from time to time in writing.
2.2 In relation to the Authorized Users and Your Access, you undertake that:
2.2.1 each Authorized User shall keep details of its Access secure and confidential;
2.2.2 you shall permit us to monitor the Service remotely to verify your use of the Service, number of Authorized Users, and/or to ensure your compliance with the terms of this Agreement.
2.2.3 if you have used the Service in excess of the number of Authorized Users or features you have paid for in the Order Form, you shall pay an amount equal to such underpayment as calculated in accordance with the relevant prices set out in the Order Form or the Renewal Invoice (as applicable) within 10 Business Days of the date of our invoice.
2.3 If you register for a free trial, we will make the applicable Service available to you on a trial basis free of charge (“Free Trial Version”) until the earlier of (a) the end of the 30-day trial term (if not terminated earlier) (“Free Trial Term”) or (b) the start date of your paid subscription. Unless you purchase a subscription to the applicable Service before the end of the free trial, all your data in the Service may be permanently deleted at the end of the trial, and we will not recover it. In respect of the Free Trial Version only, either of us may, at any time during the Free Trial Term, give 14 days’ written notice to the other to terminate this Agreement. For the avoidance of doubt, you shall not use or avail of the Free Trial Version by any means following expiry or termination of the Free Trial Term. Notwithstanding the “representations, warranties, exclusive remedies and disclaimers” section and “indemnification” section below, during the Free Trial Term the Service is provided “as-is” without any warranty and we shall have no indemnification obligations nor liability of any type with respect to the services for the Free Trial Term unless such exclusion of liability is not enforceable under applicable law in which case our liability with respect to the Service provided during the Free Trial Term shall not exceed €1,000.00.
3.1 You shall pay the Price for the Service in accordance with the payment terms set out in the Order Form or the Renewal Invoice (as applicable). Unless otherwise specified, all invoices must be paid within 30 days of their being issued by us.
3.2 You will be charged the Price associated with Authorized User bands as set out in the Order Form. The Price for the Services will remain fixed during the Term unless you:
• exceed your Authorized User band or other applicable limits set out on the Services List;
• upgrade services or Authorized User band;
• subscribe to additional features or services, or
• unless otherwise agreed to in the Order Form.
In this case, the Price will increase up to the Authorized User band price which corresponds with the number of Authorized Users and a new Order Form will be sent to you for signature and the Price will increase by the corresponding prorated amount for the remainder of Term.
Once increased, the Price will not decrease, even if there is a subsequent reduction in the number of Authorized Users during the term.
You can change your Authorized Users to be inactive/expired once they are deleted from your active directory, but you can only downgrade your Authorized User band at your next Renewal Date upon completion of a new Order Form. In order to avoid additional charges, you should purchase the appropriate band of Authorized Users of the Service for your anticipated needs.
3.3 On the Start Date and before each Renewal Date, we shall issue an invoice to you for the Price as set out in the Order Form or the Renewal Invoice (as applicable).
3.4 If we have not received payment within 15 days after the due date, and without prejudice to any other rights and remedies of FlowForma:
3.4.1 we may, without liability to you, disable your Access and we shall be under no obligation to provide any or all of the Service while the invoice(s) concerned remain unpaid; and
3.4.2 interest shall accrue on such due amounts at an annual rate equal to 5% over EURIBOR at the date the relevant invoice was issued, commencing on the due date and continuing until fully paid, whether before or after judgment
3.5 The Price shall increase by 5% at the start of each Renewal Term unless otherwise agreed such Price to be set out in the Renewal Invoice. If additional Services are required, the Price will be agreed before the Renewal Term.
3.6 You shall not be entitled to withhold payment in whole or in part on the grounds that you have a claim, counterclaim or set-off against us.
4 Support Services
4.1 We will use commercially reasonable efforts to provide the Support Services which are you have subscribed for (see Service List).
4.2 If you require Support Services outside the Standard Business Hours or any other support services other than the Support Services, such Additional Support Services will be provided at the Price agreed between us.
5 Customer Obligations
5.1 You shall not access, store, distribute or transmit any Viruses, or any material during the course of your use of the Service that is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; facilitates illegal activity; depicts sexually explicit images; promotes violence; is discriminatory based on race, gender, color, religious belief, sexual orientation, disability, or any other illegal activity; or causes damage or injury to any person or property, and we reserves the right, without liability to you, to disable your access to any material that breaches the provisions of this Clause.
5.2 You shall not, except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties:
5.2.1 except to the extent expressly permitted under this Agreement, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, reuse, download, display, transmit, or distribute all or any portion of the Service (as applicable) in any form or media or by any means;
5.2.2 attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Service;
5.2.3 access all or any part of the Service in order to build a product or service which competes with the Service;
5.2.4 except as provided for in this Agreement, use the Service to provide services to third parties;
5.2.5 license, sell, rent, loan, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Service available to any third party except the Authorized Users; or
5.2.6 attempt to obtain, or assist third parties in obtaining, access to the Service, other than as provided under this Clause 4.
5.3 You shall use all reasonable endeavors to prevent any unauthorized access to, or use of, the Service and, in the event of any such unauthorized access or use, promptly notify us.
5.4 You will comply with our instructions regarding your Access and use of the Service.
5.5 The rights provided under this Agreement are granted to you only, and shall not be considered granted to any subsidiary or holding company.
5.6 You may use the Documentation to assist in your use of the Service but you may not make the Documentation available to anyone other than the Authorized Users.
6 Proprietary Rights
6.1 You acknowledge and agree that we and/or our licensors own all Intellectual Property Rights in the Service and have all the rights in relation to the Service that are necessary to grant all the rights it grants hereunder. Except as expressly stated herein, this Agreement does not grant you any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licenses in respect of the Service.
6.2 You shall ensure that all titles, logos, trademarks, copyright and other notices applied by us to the Service, or any materials provided or produced by us or the Service in connection with this Agreement shall be reproduced and not deleted or removed.
6.3 We own the statistical usage data derived from the operation of the Service, including anonymized trend data relating to how the Service is being used, data regarding web applications utilized in connection with the Service, configurations, log data, and the performance results for the Service (“Usage Data”). Nothing herein shall be construed as prohibiting us from utilizing the Usage Data to optimize and improve the Service or otherwise operate our business; provided that if we provide Usage Data to third parties, such Usage Data shall be de-identified and presented in the aggregate so that it will not disclose your identity or any Authorized User(s) to any third party.
7 Third Party Providers
8 FlowForma’s Obligations
8.1 We warrant that the Service will conform in all material respects with the Documentation.
8.2 The warranty at Clause 8.1 shall not apply to the extent of any non-conformance which is caused by use of the Service contrary to our instructions, or modification or alteration of the Service by any party other than us or our duly authorized contractors or agents. If you believe there has been a breach of this warranty, you must notify us in writing promptly stating in reasonable detail the nature of the alleged breach. If the Service does not conform with the foregoing warranty, we will, at our expense, use all reasonable commercial endeavors to correct any such non-conformance promptly, or provide you with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes your sole and exclusive remedy for any breach of the warranty set out in Clause.
8.3 Notwithstanding the foregoing, we:
8.3.1 do not warrant that your use of the Service will be uninterrupted or error-free; nor that the Service and/or the information obtained by you through the Service will meet your requirements; and
8.3.2 are not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and you acknowledge that the Service may be subject to limitations, delays, and other problems inherent in the use of such communications facilities.
8.4 All warranties, representations, conditions, and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement.
9 Your Obligations
9.1 You shall:
9.1.1 provide us with:
(a) all necessary co-operation in relation to this Agreement; and
(b) all necessary access to such information as may be required by us in order to render the Service and other services as may be required from time to time and in relation to security and configuration services;
9.1.2 comply with all applicable laws and regulations with respect to your activities under this Agreement;
9.1.3 ensure that the Authorized Users use the Service in accordance with the terms and conditions of this Agreement and shall be responsible for any Authorized User's breach of this Agreement;
9.1.4 obtain and shall maintain all necessary licenses, consents, and permissions necessary for us its contractors and agents to perform their obligations under this Agreement, including without limitation the Service;
9.1.5 ensure that your network and systems comply with the relevant specifications provided by us from time to time as set out in the Service List; and
9.1.6 be solely responsible for procuring and maintaining your network connections and telecommunications links from your systems to FlowForma’s data centers, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer's network connections or telecommunications links or caused by the internet.
10.1 Each party represents, warrants, and undertakes that it has full capacity and authority and all necessary consents to enter into and to perform this Agreement and to grant the rights and licenses referred to in this Agreement and that this Agreement is executed by its duly authorized representative and represents a binding commitment on it.
10.2 Except as expressly and specifically provided in this Agreement you assume sole responsibility for results obtained from the use of the Service by you, and for conclusions drawn from such use. We shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to us by you in connection with the Service, your Customer Data, or any actions taken by us at your direction.
11 Limitation of Liability
11.1 Nothing in this Agreement limits or excludes the liability of either party: (i) for death or personal injury caused by negligence; (ii) for fraud or fraudulent misrepresentation; or (iii) for any other liability to the extent that it cannot be lawfully excluded.
11.2 We shall not in any circumstances be liable whether in tort (including for negligence or breach of statutory duty howsoever arising), contract, misrepresentation (whether innocent or negligent) or otherwise for: (i) loss of profits; (ii) loss of business; (iii) depletion of goodwill or similar losses; (iv) loss of anticipated savings; (v) loss or corruption of data or information; or (vi) any special, indirect, consequential, or pure economic loss, costs, damages, charges or expenses. In no event shall we have any liability in any circumstances whatever for any data loss or corruption relating to your data or otherwise.
11.3 Our total aggregate liability in contract, tort (including without limitation negligence or breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with this Agreement shall in all circumstances be limited to the Price paid for the Service in the 12-month period prior to any claim.
11.4 This Clause 11 shall survive expiry or termination of this Agreement for any reason.
12.1 We shall, subject to Clause 11.3, defend you against any claim that the Service infringes any third-party Intellectual Property Rights, and shall indemnify you for any amounts awarded against you in judgment or settlement of such claims, provided that:
12.1.1 we are given prompt notice of any such claim;
12.1.2 you provide reasonable co-operation to us in the defense and settlement of such claim, at our expense; and
12.1.3 we are given sole authority to defend or settle the claim.
12.2 In the defense or settlement of any claim, we may procure the right for you to continue using the Service, replace or modify the Service so that it becomes non-infringing or, if such remedies are not reasonably available, terminate this Agreement on 2 Business Days' notice to you without any additional liability or obligation to pay liquidated damages or other additional costs to you.
12.3 In no event shall we our employees, agents and sub-contractors be liable to you to the extent that the alleged infringement is based on:
12.3.1 a modification of the Service by anyone other than us; or
12.3.2 your use of the Service in a manner contrary to this Agreement or the instructions given by us; or
12.3.3 your use of the Service after notice of the alleged or actual infringement from us or any appropriate authority.
12.4 The foregoing states your sole and exclusive rights and remedies, and our entire obligations and liability, for infringement of any Intellectual Property Rights.
13 Term and Termination
13.1 This Agreement shall commence on the Start Date. Unless terminated earlier in accordance with its terms, this Agreement shall continue for the Initial Term, the Renewal term or the Free Trial Term (as applicable). The Free Trial term shall automatically expire 30 days after the Free Trial Start Date. Unless you provide written notice to us 90 days prior to the expiry of the Initial Term or Renewal Term, this Agreement shall continue for rolling 12-month periods unless terminated by either of us giving to the other 90 days’ notice in writing prior to the anniversary of the Start Date.
13.2 Without affecting any other right or remedy available to it, either of us may terminate this Agreement with immediate effect by giving written notice to the other if:
13.2.1 either of us commits a material breach of any term of this Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
13.2.2 either of us becomes insolvent or has a liquidator, examiner, receiver, manager, administrative receiver or administrator (or other similar officer) appointed of it or over any part of its undertaking or assets or passes a resolution for winding up (otherwise than for the purpose of a good faith scheme of solvent amalgamation or reconstruction) or a court of competent jurisdiction makes an order to that effect or if either of us enters into any voluntary arrangement with its creditors or becomes subject to an administration order or suffers or undergoes any analogous or similar process to any of the above anywhere in the world; or
13.2.3 either of us suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
14 Effects of Termination
14.1 Upon termination or expiry of this Agreement for any reason:
14.1.1 the Access and all licenses and permissions granted under this Agreement shall immediately terminate;
14.1.2 If you wish to make a written request for temporary Access to the Service within thirty (30) days after termination or expiration of this Agreement, we will provide you with temporary Access to the Service upon payment of a re-activation fee. Thirty (30) days after termination or expiration of this Agreement we will delete all Customer Data in our systems or otherwise within our control.
14.1.3 you shall promptly return to us, or otherwise dispose of as we may instruct, all equipment, property, Documentation, confidential information, and other items (and all copies of them) belonging to us which you may have in your possession or under your control; and
14.1.4 the accrued rights of the parties as at termination or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination shall not be affected or prejudiced.
15.1 Each party may have access to Confidential Information of the other party under this Agreement. A party's Confidential Information shall not include information that:
15.1.1 is or becomes publicly known through no act or omission of the receiving party; or
15.1.2 was in the other party's lawful possession prior to the disclosure; or
15.1.3 is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
15.1.4 is independently developed by the receiving party, which independent development can be shown by written evidence; or
15.1.5 is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
15.2 Each party shall hold the other's Confidential Information in confidence and, unless required by law, not make the other's Confidential Information available to any third party or use the other's Confidential Information for any purpose other than the implementation of this Agreement.
15.3 Each party agrees to take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement.
15.4 This Clause 14 shall survive expiry or termination of this Agreement for any reason.
16 Data Protection
16.1 You shall own all rights, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data used in conjunction with the Service.
16.2 You hereby:
16.2.1 agree and confirm that all relevant third parties whose data are contained in the Customer Data agree that we may store the Customer Data in jurisdictions outside the European Economic Area;
16.2.2 agree that we may access and disclose Customer Data as required by applicable law, as permitted by you, and as is required to provide the Service; and
16.2.3 agree to comply with the terms of our third-party providers as is required to use the Service.
16.3 The following definitions apply with regard to the processing of personal data by us under this Agreement:
16.3.1 "Customer Personal Data" means any personal data contained in the Customer Data;
16.3.2 "Data Protection Legislation" means any data protection data security and data privacy requirements imposed by law including the Data Protection Acts 1988 to 2018 (as may be amended from time to time and the General Data Protection Regulation (EU) 2016/679 (the "GDPR”) and other data protection or privacy legislation in force from time to time in any relevant jurisdiction which is applicable to the provision of the Services;
16.3.3 "Security Breach" the accidental or unlawful destruction, loss, alternation, unauthorized disclosure or, or access to the Customer Data; and
16.3.4 "controller", "data subject", "personal data", "processing", "processor" and "supervisory authority" shall have the meanings given to those terms in the GDPR.
16.4 If we process any Customer Personal Data on your behalf when performing our obligations under this Agreement, the parties record their intention that you shall be the data controller and we shall be a data processor.
16.5 You, as the controller, are solely responsible for establishing the lawful basis for the processing of Customer Personal Data by us under this Agreement and will ensure that you have all necessary appropriate consents and notices in place to enable lawful transfer of the Customer Personal Data to us for the duration and purposes of this Agreement. You, as the controller, are further solely responsible for the accuracy and quality of the Customer Personal Data.
16.6 To the extent that we process Customer Personal Data pursuant to this Agreement, we shall:
16.6.1 process the Customer Personal Data in accordance with the terms of this Agreement and your instructions (unless we are required to process the Customer Personal Data by applicable European Union ("EU") or EU Member State law in which case we shall notify you of that legal requirement before such transfer or access occurs or is permitted, unless that law prohibits such notification on important grounds of public interest);
16.6.2 ensure that all personnel authorized to process the Customer Personal Data are party to confidentiality obligations in respect of the Customer Personal Data;
16.6.3 cooperate as reasonably requested by you (at your sole expense):
(a) to assist you in complying with any exercise of rights by a data subject under the Data Protection Legislation in respect of Customer Personal Data; and
(b) where you conduct a data protection impact assessment;
16.6.4 notify you if we receive a request from a data subject to have access to that data subject’s personal data. We shall not respond directly to such data subject unless it is instructed to do so by you;
16.6.5 implement and maintain appropriate technical and organizational measures in place to ensure the security of the Customer Personal Data taking into account: (i) the state of the art; (ii) the costs of implementation; (iii) the nature, scope, context and purposes of the processing; and (iv) the inherent risk of the processing activities to data subjects;
16.6.6 notify you without undue delay after becoming aware of any Security Breach; and
16.6.7 cooperate with the Data Protection Commission (or, to the extent reasonably required by you, any other supervisory authority) in the performance of its tasks where required.
16.7 You hereby agree to the transfer of Customer Personal Data processed under this Agreement outside of the EU if necessary, PROVIDED that in effecting any international transfer of Customer Personal Data, we shall ensure that:
16.7.1 we have provided appropriate safeguards in relation to the transfer which may include EU standard contractual clauses; and
16.7.2 data subjects continue to have enforceable rights and effective legal remedies following the transfer.
16.8 You hereby authorize us to use third parties ("sub-processors") to provide services under this Agreement provided:
16.8.1 we shall notify you in advance of any proposed use of a sub-processor, and any replacement or addition to them and you shall have the right to object on reasonable grounds to the use of or change to any sub-processor within 14 days of us notifying you of the change. In the event of you raising such an objection, we may terminate part or all of this Agreement on 14 days' notice;
16.8.2 in engaging any sub-processor Few agree adequate data protection arrangements that are in all material respects similar to those set out in this Clause 15; and
16.8.3 we shall at all times remain liable for the acts and omissions of any sub-processor as if such acts and omissions were ours.
16.9 For the purpose of this Agreement, you consent to the use of the sub-processors listed in the Service List.
16.10 We shall make available all information reasonably requested by you to satisfy yourself that we are complying with our data protection obligations under this Agreement. You (and your third-party representatives) shall be permitted to audit our premises, systems, and facilities during normal business hours PROVIDED THAT:
16.10.1 you shall provide at least 14 days' prior written notice of its intention to carry out an audit;
16.10.2 you shall ensure (and shall procure that each of its representatives) minimal disruption to our business in the course of such an audit or inspection;
16.10.3 all expenses incurred by us shall be promptly discharged by you;
16.10.4 we may request that any third-party representative performing an audit on your behalf shall provide written confidentiality undertakings to our reasonable satisfaction and we shall be entitled to refuse access to any of its premises or records until such time as it has received such undertakings;
16.10.5 we need not contribute or allow for an inspection or audit more than once in any calendar year, except for any additional audits or inspections which are required or requested be carried out in connection with the Data Protection Laws or a supervisory authority;
16.10.6 we may object in writing to an auditor or representative mandated by you if the auditor or representative is, in our reasonable opinion, not suitably qualified or independent, a competitor of ours, or otherwise manifestly unsuitable (in the event of such an objection, you shall appoint another auditor or conduct the audit itself); and
16.10.7 nothing in this Clause 16.10 shall entitle you to access or inspect any records which contain information relating to any other client or customer of ours and We shall be entitled to restrict or prevent access to any part of our premises which we consider in our sole discretion could compromise the security of any information or data relating to such other clients or customers.
16.10.8 We will inform you if it comes to our attention that any instructions received in respect of this clause infringe the provisions of any applicable EU or EU Member State data protection law.
17 Force Majeure
17.1 Neither party shall in any circumstances be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure results from events, circumstances or causes beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes, failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations, provided that if the period of delay or non-performance continues for 6 months, the party not affected may terminate this Agreement by giving 30 days' written notice to the other party.
18.1 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 prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
19.1 If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this Clause 18 shall not affect the validity and enforceability of the rest of this Agreement.
20 Export Laws
20.1 You acknowledge that the Service may be subject to export and import control laws (including United States export and import laws) and agree to fully comply with any such laws in connection with the Service.
21 Entire Agreement
21.1 This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations, and understandings between them, whether written or oral, relating to its subject matter. Each party acknowledges that in entering into this Agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance, or warranty (whether made innocently or negligently) that is not set out in this Agreement.
22.1 No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorized representatives).
23.1 Neither of us shall, without the prior written consent of the other, assign, transfer, charge, sub-contract, or deal in any other manner with all or any of our rights or obligations under this Agreement.
24 No Partnership or Agency
24.1 Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, nor authorize any party to make or enter into any commitments for or on behalf of any other party except as expressly provided herein. Each party confirms it is acting on its own behalf and not for the benefit of any other person.
25 Third Party Rights
25.1 No one other than a party to this Agreement, their successors and permitted assignees, shall have any right to enforce any of its terms.
26 Rights and Remedies
26.1 The rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
27.1 All notices to or by the respective parties shall be in writing in the English language and shall be deemed to have been duly given when (a) delivered by hand, (b) posted by recorded delivery post (postage prepaid), (c) sent by reputable overnight courier, or (d) sent by email to the party to which such notice is required to be given under this Agreement addressed to the parties as provided for in this Agreement; or to such other address, fax number or email address as either party may subsequently notify to the other in writing. Notices delivered by hand, or by overnight courier shall be deemed received the first Business Day following such delivery or sending. Notices, which have been posted as above, shall be deemed received on the third Business Day following posting. Notices sent by email shall only be deemed delivered at 9:00am on the next Business Day after transmission. You shall ensure that all contact details (including address, and email address) provided to us are at all times complete, accurate and up to date.
28 Governing Law & Jurisdiction
28.1 This Agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by and construed in accordance with the laws of Ireland and are subject to the exclusive jurisdiction of the Irish courts.
29.1 Clause and paragraph headings shall not affect the interpretation of this Agreement. References to Clauses and Parts are to the Clauses and Parts of this Agreement. A reference to writing or written includes faxes and e-mail. The words “includes” and “including” are to be construed without limitation.
29.2 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality). A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established. A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
29.3 Unless the context otherwise requires, words in the singular shall include the plural and, in the plural, include the singular and a reference to one gender shall include a reference to the other genders.