Zutec Inc. Ltd – SOFTWARE LICENCE AND SERVICES AGREEMENT
TERMS AND CONDITIONS
(i) “Agreement” shall mean this agreement for the provision of the Licence, Support and Maintenance Services and Services described herein.
(ii) “Authorised Users” means the specific number of the Customer’s employees, agents and independent contractors authorised to use the Software Applications as specified in the Order Form.
(iii) “Customer” shall be as defined in the Order Form and shall include the Customer’s legal personal representatives, successors and permitted assigns.
(iv) “Documentation” shall mean the manual or manuals and other documents associated with the Software Applications supplied by ZUTEC to the Customer.
(v) “Licence” shall mean the rights granted hereunder to the Customer to use the Software Application in accordance with this Agreement.
(vi) “Order Form” means the Order Form set out in Schedule 1 of the Master Software Licence and Services Agreement for placing orders which are entered into between Customer and ZUTEC or any of it’s affiliates from time to time, including addenda and supplements thereto.
(vii) “Parties” shall mean the parties to this Agreement and “Party” shall have its respective meaning.
(viii) “Services” means the enablement packages and on-request professional services purchased by the Customer as specified in the Order Form and as set out in clause 10.
(ix) ‘Services Charge’ shall mean the charges paid to ZUTEC by the Customer for the Services as specified in the Order Form and, where applicable in accordance with the ZUTEC Rate Card.
(x) “ZUTEC” shall mean Zutec Inc (Ireland) Limited and shall include ZUTEC’s legal personal representatives, successors and assigns.
(xi) “Software Application Fee” shall mean the fee paid by the Customer to ZUTEC in consideration for the right to use the Software Applications in accordance with this Agreement and as set out in the Order Form.
(xii) ‘Support and Maintenance Charges’ shall mean the annual charge specified in the Order Terms together with any additions thereto or deductions there from agreed in writing under the Agreement payable by the Customer in consideration for the provision of the Support and Maintenance Services.
(xiii) “Software Applications” shall mean the software applications and the relevant modules as described in the Order Form.
(xiv) “Support and Maintenance Services” shall mean the preventive and/or corrective maintenance and all other work expressly stated in writing to be carried out by ZUTEC in accordance with the provisions of this Agreement.
- GRANT OF LICENCE
2.1 ZUTEC, in consideration of the payment by the Customer of the Software Application Fee as specified in the Order Form and in accordance with Clause 4, hereby grants to the Customer a non-exclusive, non-transferable licence to use the Software Applications solely for its own internal business operations on the terms and conditions contained herein.
- ADDITIONAL AUTHORISED USER SUBSCRIPTIONS
3.1 If applicable, the Customer may, from time to time during the Term, purchase additional Authorised User subscriptions in excess of the number set out in the Order Form and ZUTEC shall grant access to the Software to such additional Authorised Users in accordance with the provisions of this Agreement.
3.2 If the Customer wishes to purchase additional Authorised User subscriptions, it shall notify ZUTEC in writing. ZUTEC shall evaluate such request for additional Authorised User subscriptions and respond to the Customer with approval or rejection of the request.
3.3 Where ZUTEC approves the request:
3.3.1 ZUTEC shall activate the additional Authorised User subscriptions within seven (7) days of its approval; and
3.3.2 the Customer shall, within 21 days of the date of ZUTEC’s invoice, pay to ZUTEC the relevant fees for such additional Authorised User subscriptions as set out in the Order Form and, if such additional Authorised User subscriptions are purchased by the Customer part way through the Initial Term or any Renewal Term (as applicable), such fees shall be pro-rated from the date of activation by ZUTEC for the remainder of the Initial Term or then current Renewal Term (as applicable).
- CHARGES AND TERMS OF PAYMENT
4.1 The Customer shall pay to ZUTEC the non-refundable Software Application Fee, the Support and Maintenance Charges, the Services Charges and the Licence Fee as set out in the Order Form.
4.2 For clarity, except as otherwise specified herein or in an Order Form, (i) fees are based on the Deliverables purchased and not actual usage, (ii) payment obligations are non-cancellable and fees paid are non-refundable, and (iii) the number of Software Applications and modules purchased cannot be decreased during the relevant subscription term stated on the Order Form. Subscription fees are based on monthly periods that begin on the subscription start date and each monthly anniversary thereof; therefore, fees for subscriptions added in the middle of a monthly period will be charged for that full monthly period and the monthly periods remaining in the subscription term.
4.3 If an authority imposes a duty, tax, levy or fee upon the Software Application Fee and/or the Support and Maintenance /Services Charges, then the Customer agrees to pay that amount or supply exemption documentation.
4.4 Where the Customer is required by law to deduct an amount as a tax which is otherwise payable to ZUTEC by the Customer, the Customer shall immediately submit to ZUTEC tax receipts issued by the relevant tax authorities evidencing the payment by the Customer of such taxes on behalf of ZUTEC.
4.5 All sums due under this Agreement will be paid by the Customer in advance except unless stated otherwise in an Order Form. .
4.6 If any sums payable to ZUTEC under this Agreement is unduly delayed by the Customer, ZUTEC reserves the right without prejudice to any of its other rights or remedies to: (i) charge interest on such overdue sums on a day to day basis from the original due date until paid in full at a rate of 5% above the then current base lending rate of the Bank of Ireland; and/or (ii) suspend the provision of the Software Applications, Support and Maintenance Services and/or the Services.
4.7 In the event that a dispute arises between the Parties in relation to any amount payable in relation to the Software Application Fee and/or the Support and Maintenance/Services Charges, the Customer shall pay any undisputed amount of Software Application Fee and/or the Support and Maintenance/Services Charges, in accordance with this Clause 4, and any dispute in relation to the outstanding balance of the Software Application Fee and/or the Support and Maintenance/Services Charges due and payable shall be dealt with in accordance with Clause 25.
5.1 Acceptance of the Software Applications shall be deemed to take place on commission.
5.2 Acceptance of any Services Deliverables shall be deemed to take place 10 days after delivery, unless Customer raises a valid dispute in writing identifying specific failures in relation to the Deliverable in this time, following which acceptance shall take place once the issues have been rectified by ZUTEC.
6.2 The Customer shall follow all reasonable instructions given by ZUTEC from time to time with regard to the Licence. The Customer shall permit ZUTEC from time to time to verify that the use of the Software Applications and/or the Support and Maintenance Services/Services is within the terms of the Agreement.
6.3 The Customer shall not make copies of the Documentation without ZUTEC’s prior written agreement. At the request of the Customer, ZUTEC may provide such additional copies of the Documentation as the Customer may reasonably require for the normal operation of its business, at ZUTEC’s then current standard scale of charges.
6.4 The Customer shall not attempt to duplicate, modify or distribute any portion of the Software, attempt to reverse compile, reverse engineer, disassemble or otherwise reduce any of the Software except as may be permitted by any applicable law.
6.5 Third party software, if any, is licenced to the Customer on the third party supplier’s standard terms and conditions and in the event that no terms and conditions are provided, the Licensor and any third party supplier of associated software and software components disclaim any and all liability for consequential damages and implied warranties (including, as permitted by law, the implied warranties of non-infringement, satisfactory quality, merchantability and fitness for purpose). For the sake of clarity, the Customer has selected any third party Deliverables or devices by its own volition and is not relying on any recommendation made by ZUTEC.
- THE CUSTOMER’S OBLIGATIONS
7.1 The Customer shall:-
7.1.1 comply with all applicable laws, rules and regulations;
7.1.2 provide ZUTEC with all reasonable assistance, materials and accurate information required by ZUTEC for the purposes of enabling it to provide the licence and Support and Maintenance Services and the Services;
7.1.3 it shall ensure that all users, administrators and personnel assigned by it to provide assistance to ZUTEC shall have the requisite skills, qualifications and experience to perform the tasks assigned to them.
8.1 ZUTEC warrants that it is a company, duly registered and validly existing in its jurisdiction of organisation.
8.2 ZUTEC warrants that it has the right to enter into this Agreement and to grant the Customer the Licence to use the Software Applications as provided in this Agreement.
8.3 ZUTEC warrants that: (i) provided it is operated in accordance with the Documentation and ZUTEC’s instructions, the Software Applications will perform in all material respects in accordance with the Software Application specifications and the Documentation for a period of 90 days from commission; (ii) the Documentation will describe how the Customer may access and use the Software Applications.
8.4 The preceding warranty (clause 8.3) will not apply if: (i) the Software Application is not used in accordance with this Agreement or the Documentation; (ii) the Software Application or any part thereof has been modified without the prior written consent of ZUTEC; (iii) a malfunction in the Software Application has been caused by any of the Customer’s equipment or third party software.
8.5 The Customer’s sole remedy for any breach by ZUTEC of the warranty in clause 8.3 will be limited exclusively to the correction of any defect or error of the Software Application or, the replacement of the Software Application. To the extent permitted by the applicable law, ZUTEC, for itself and its suppliers, disclaims all other warranties or conditions, either express or implied, including but not limited to satisfactory quality, performance, or fitness for the purpose of the Software Applications or Documentation or any part of them. ZUTEC does not warrant that the operation of the Software Applications will be uninterrupted or error-free. The foregoing states ZUTEC’s entire liability whether in contract or tort for any breach of warranty and for any defects or errors in the Software Applications or Support and Maintenance Services/Services supplied.
- SUPPORT SERVICES
9.1 The Support and Maintenance Services, shall be provided from the Subscription Period Start Date. ZUTEC agrees to provide the Support and Maintenance Services to the Customer as set out in this Agreement.
9.2 The Customer undertakes to: (i) designate appropriately qualified and trained personnel authorised to request Support and Maintenance Services, and inform ZUTEC accordingly, (ii) maintain procedures to facilitate reconstruction of any lost or altered files, data or programs to the extent deemed necessary by the Customer.
9.3 In the event that the Customer shall request ZUTEC to provide technical support over and above that specified in the Support Services, ZUTEC shall: (i) use its reasonable endeavours to respond promptly to the request, and (ii) have the right to make an additional charge to the Customer on a time and materials basis.
9.4 Save for any events caused by ZUTEC’s material default, ZUTEC reserves the right (at its discretion) to either refuse to support the Software Applications or to make an additional charge on a time and materials basis: (i) if, despite reasonable efforts by ZUTEC, the problem cannot be replicated or otherwise identified; (ii) if the problem is caused by (or its extent or impact worsened by) any design issues, data loading/interfaces and/or custom code changes caused by someone other than ZUTEC or if the cause of the problem is the occurrence of an event of Force Majeure (as defined in clause 20) (including, for example, power interruption or communication problems.)
9.5 If requested by the Customer, ZUTEC shall provide training in the use of the Software Applications for the Customer’s employees. Such training shall be charged in accordance with the ZUTEC Rate Card
- PROFESSIONAL SERVICES
10.1 The Parties shall consult with each other to determine the nature and scope of specific Services required by the Customer and will sign an Order Form for each services engagement.
10.2 Any additional Services (other than those agreed in an Order Form) required by the Customer shall be agreed between the Parties and delivered in accordance with the ZUTEC Rate Card.
10.3 ZUTEC shall provide the services with appropriately experienced, qualified and trained professional personnel with reasonable skill and care.
10.4 ZUTEC for itself and its Sub-Contractors, disclaims all other service or product warranties or conditions, either express or implied, including but not limited to warranties or conditions of satisfactory quality or fitness for a particular purpose.
10.5 All completion dates will be extended by a reasonable period and reasonable additional costs paid to ZUTEC in line with it’s Rate Card if any delay or stoppage is caused by any act or omission of the Customer.
11.1 Title, copyright and all other proprietary rights in the Software Applications including third party software, the Support and Maintenance Services/Services and the Documentation and all parts and copies thereof shall remain vested in and be the absolute property of ZUTEC and the relevant third party as applicable. ZUTEC shall own all copyright and all other intellectual property rights in any modifications or additions to the Software Applications.
11.2 The Customer shall follow all reasonable instructions given by ZUTEC from time to time with regard to the use of trade-marks owned by ZUTEC and other indications of the property and rights of ZUTEC.
11.3 The Customer shall grant or procure the grant of a Licence to ZUTEC to utilise such information, services, materials or assets of the Customer to the extent required for the provision of the Support and Maintenance Services/Services.
11.4 The Customer shall execute all further documents as may be necessary or desirable to give full effect to the provisions of this Clause and to protect the rights of ZUTEC.
11.5 ZUTEC shall be free to use its general knowledge, skills and experience, and any ideas, concepts, know-how, formats, templates, methodologies and techniques that are acquired or used in the course of the provision of the Support and Maintenance Services or other Services.
12.1 ZUTEC shall defend the Customer from any claim by a third party alleging that the use or possession of the Software Applications or Documentation by the Customer (as contemplated by this Agreement) infringes any patent, copyright or trade secret of a third party.
For the avoidance of doubt, this Clause 12.1 shall not apply where the Claim in question arises from the possession, use, development, modification or maintenance of the Software Applications (or any part) by the Customer other than in accordance with the terms of this Agreement or use of a non-current release of the Software Applications.
12.2 As a condition of obtaining an indemnity, the Customer shall:
12.2.1 fully and promptly notify ZUTEC of any claim, or threatened infringement claim, but failure to do so shall not release ZUTEC of its obligations under this Clause 12.2 except to the extent that it is actually prejudiced;
12.2.2 not make any admission as to liability or compromise or agree to any settlement of any infringement claim without the prior written consent of ZUTEC, which consent shall not be unreasonably withheld or delayed;
12.2.3 permit the ZUTEC to take full control of such infringement claim, including settling it at the ZUTEC’s expense; and
12.2.4 give reasonable assistance in the investigation and defence of such infringement claim.
12.3 If any infringement claim is made, or in ZUTEC’s reasonable opinion is likely to be made, against the Customer, ZUTEC may at its sole option and expense:
12.3.1 procure for the Customer the right to continue using, developing, modifying or maintaining the Software Applications (or any part) in accordance with the terms of this Agreement;
12.3.2 modify the Software Applications so that it ceases to be infringing; or replace the Software Applications with non-infringing software.
12.4 The indemnity provided in sub-clause 12.1 shall not apply in the event that an infringement claim arises which relates to information including but not limited to design criteria or functional requirements provided to ZUTEC by the Customer. For the sake of clarity, ZUTEC shall have no liability in respect of such claims.
12.5 This Clause 12 states ZUTEC’s sole liability and the Customer’s exclusive remedy for infringement claims.
- LIMITATION OF LIABILITY
13.1 ZUTEC’s aggregate liability (including any liability for the acts and omissions of its employees, consultants or agents of ZUTEC and its sub-contractors), with respect to any and all subject matters of this Agreement (excluding the subject matter of Clause 13.3 below) or any attachment, appendices, schedules or terms and conditions related thereto and including for any loss arising by virtue of any exclusion clause in this Agreement being held by a competent court to be invalid, will be limited to the amount of the Software Application Fee paid by the Customer for the Software Application giving rise to the liability.
13.2 ZUTEC’s aggregate liability (including any liability for the acts and omissions of its employees, consultants or agents of ZUTEC and its sub-contractors) for loss or damages from any cause of action whatsoever relating to ZUTEC’s obligations to provide Support and Maintenance Services or Services under this Agreement shall be limited to the amount paid by the Customer for such Support and Maintenance Services or Services for the applicable year.
13.3 Neither Party excludes or restricts liability for:
13.3.1 death or personal injury caused by the negligence of that Party or its employees; or fraud or fraudulent misrepresentation or any other liability which cannot by applicable law be excluded or restricted.
13.3.2 any infringement of the other Party’s Intellectual Property Rights
13.3.3 any breach of confidentiality as detailed in clause 16.
13.4 In no event shall ZUTEC be liable in contract, tort (including, without limitation, negligence) or otherwise to the other arising out of or relating to this Agreement or the Services for:
- any indirect losses; and
- any consequential losses; or
- any loss of profit, revenue, business, anticipated savings, wasted management or other staff time, cost of substituted services, goodwill or reputation or losses arising out of any claims by the Customer (for the avoidance of doubt whether direct or indirect and whether reasonably foreseeable and even if advised of its possibility).
- TERM AND TERMINATION
14.1 The term and termination provisions shall be as set out in clause 5 of the Master Software Licence Subscription and Services Agreement and the start date and end date of each engagement shall be as specified in the relevant Order Form.
- RECORDS AND AUDIT
15.1 The Customer shall keep the Records during the Term and for a period of three (3) years after its expiry or termination and shall ensure that the Records are sufficient to enable ZUTEC to verify the Customer’s compliance with its obligations under this Agreement.
15.2 The Customer shall permit ZUTEC and its third-party representatives at any time, on reasonable notice during Normal Business Hours (but without notice in case of any reasonably suspected breach of this Agreement) to:
15.2.1 gain (physical and remote electronic) access to, and take copies of, the Records and any other information held at the Customer’s premises or on its system; and
15.2.2 inspect all Records and systems relating to the use of the Software for the purpose of auditing the Customer’s compliance with its obligations under this Agreement. Such audit rights shall continue for three (3) years after termination of this Agreement. The Customer shall give all necessary assistance to the conduct of such audits during the term of this Agreement and for a period of three (3) years after termination of this Agreement.
“Normal Business Hours” shall mean 9.00 am to 5.30 pm GMT on a business day;
“Records” shall mean detailed, accurate and up-to-date records demonstrating the steps that the Customer has taken to comply with the provisions of this Agreement in the previous three (3) years (including without limitation training records, internal notifications to staff and IT manuals and policies);
16.1 During the term of this Agreement, and for a period of 5 years after its expiry or termination, each party shall keep confidential, and not use for its own purposes nor without the prior written consent of the other disclose to any third party any, all and any information of a confidential nature, including trade secrets and information of commercial value, which may become known to such party from the other party and which relates to the other party or any of its affiliates, unless such information is public knowledge or already known to such party at the time of disclosure, or subsequently becomes public knowledge other than by breach of this Agreement, or subsequently comes lawfully into the possession of such party from a third party.
- DATA PROTECTION
17.1 For the purposes of this Clause 17:
“Data Protection Legislation” shall mean the Data Protection Acts, 1988, 2003 and 2018 and the General Data Protection Regulation ((EU 2016/679) (“GDPR”) or any replacement legislation applicable in Ireland from time to time.
“Controller”, “Processor”, and “Personal Data”, shall have the same meanings as defined within Article 4 of GDPR.
“Sub-Processor” shall mean “another processor” as defined within Article 28 of GDPR.
17.2 This Agreement places obligations on ZUTEC in relation to Data Protection where it acts as a data processor of the Customers personal data. In this regard, the Parties agree to comply with the Data Protection provisions set out in this Clause 17 in respect of all personal data processed under this Agreement.
17.3 With respect to the Parties’ obligations under the Agreement and Data Protection Legislation, the Parties shall give each other such assistance as is reasonable to enable each other to comply with such obligations and both Parties acknowledge that the Customer shall be the Controller and ZUTEC shall be the Processor.
17.4 As required by Article 28(3) of GDPR, the subject-matter and duration of the processing, the nature and purpose of the processing, the type of personal data and categories of data subjects shall be as set out in Appendix 1
17.5 Where the Processor is required to process Personal Data under the Agreement, it shall:
17.5.1 process the Personal Data only on documented instructions from the Controller, including with regard to transfers of Personal Data to a third country or an international organisation, unless required to do so by law to which the Processor is subject; in such a case, the Processor shall inform the Controller of that legal requirement before processing, unless that law prohibits such information on important grounds of public interest;
17.5.2 take all reasonable steps to ensure the reliability of its personnel who have access to the Personal Data, and ensure that any of its personnel who have access to the Personal Data have entered into appropriate contractually-binding confidentiality agreements;
17.5.3 have in place appropriate technical and organisational security measures to protect the Personal Data against accidental or unlawful destruction, loss, alteration, unauthorised disclosure or access. The Controller confirms that it has reviewed these measures and confirms that same are appropriate;
17.5.4 not engage a Sub-Processor to process the Personal Data without the prior written consent of the Customer and shall ensure that any Sub-Processor engaged is bound by requirements equivalent to those set out herein;
17.5.5 taking into account the nature of the processing, assist the Controller by appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the Controller’s obligation to respond to requests from data subjects exercising their rights under Chapter III of GDPR. The Processor may charge the Controller its reasonable costs for its time spent and expenses incurred in providing the Controller with co-operation and assistance as may be required;
17.5.6 notify the Controller without undue delay if it receives a request from a data subject and/or any other competent authority under Data Protection Legislation. For the sake of clarity, the Processor will not itself respond to any such data subject request;
17.5.7 notify the Controller without undue delay upon becoming aware of or reasonably suspecting a Personal Data breach. The Processor will provide the Controller with sufficient information to allow the Controller to meet any obligations to report a Personal Data breach under Data Protection Legislation;
17.5.8 taking into account the nature of the processing and the information available to it, assist the Controller in ensuring compliance with the obligations pursuant to Articles 32 to 36 of GDPR. The Processor may charge the Controller its reasonable costs for its time spent and expenses incurred in providing the Controller with co-operation and assistance as may be required;
17.5.9 make available to the Controller, upon request, all information necessary to demonstrate compliance with Data Protection Legislation and allow for, and contribute to audits, including inspections by the Controller or another auditor mandated by the Controller of any premises where the processing of Personal Data takes place. The Controller shall give the Processor reasonable notice of any audit and will be fully liable for any associated costs;
17.5.10 At the choice of the Controller, delete or return the Personal Data to the Controller once the Services relating to the processing have completed and shall delete existing copies of Personal Data save where required otherwise by law.
17.6 The Controller warrants, represents and undertakes to the Processor that it has lawful grounds for processing the Personal Data and shall indemnify and keep indemnified the Processor against any liability, fines, claims, demands, expenses and costs (including legal fees) arising as a result of any breach of Data Protection Legislation by the Controller or the Processor acting in accordance with any instruction, policy or procedure of the Controller.
17.7 Notwithstanding anything to the contrary in the Agreement if any of the following occur:
- any changes/modifications to Data Protection Legislation (including the requirement to amend, update, modify or replace any systems the Processor uses to process the Personal Data;
- any new, clarified or amended guidance or polices issued by a supervisory authority;
- any direction or instruction issued by a supervisory authority (whether relating to the Controller or the Processor) in respect of the Services;
- any additional services are required outside of the scope of the Services in order to enable the Controller to comply with its obligations under Data Protection Legislation;
then any increased effort or costs incurred by the Processor in association with the aforementioned shall be additionally chargeable to the Controller and shall be agreed in writing and signed by both Parties and in default of Agreement, shall be provided in accordance with the ZUTEC Rate Card. For the sake of clarity, the Processor shall not be obliged to provide any additional services unless and until a Change Request has been agreed and executed by both Parties.
- CHANGE REQUEST
18.1 No change to this Agreement will be effective unless it is in writing and signed by both Parties, a “Change Request”. Each Change Request shall document the scope of work, the costs associated with the change and any effect the requested change will have on existing timelines.
19.1 The Agreement is personal to the Customer and the Customer may not assign, novate or otherwise transfer its rights or obligations under this Agreement without the prior written consent of ZUTEC.
19.2 ZUTEC may assign, novate or otherwise transfer its rights or obligations under this Agreement without the prior written consent of the Customer including to successor or purchaser of any part of ZUTEC’s business.
- FORCE MAJEURE
20.1 Neither party shall be liable for failure or delay in the performance of any of its obligations under this Agreement if such failure or delay results from Force Majeure, but any such failure or delay shall be remedied as soon as practicable.
21.1 A failure to exercise or delay in exercising a right or remedy provided by this Agreement or by law does not constitute a waiver of the right or remedy or a waiver of other rights or remedies. No single or partial exercise of a right or remedy provided by this Agreement or by law prevents further exercise of the right or remedy or the exercise of another right or remedy.
22.1 The notices provisions shall be in line with clause 8 of the Master Licence Subscription and Services Agreement.
- NO THIRD PARTY RIGHTS
23.1 Nothing in this Agreement shall confer, nor is it intended to confer, any enforceable right on any third party except as otherwise expressly so stated.
- ENTIRE AGREEMENT
24.1 This Agreement constitutes the entire agreement and understanding between the Parties with respect to their subject matter, and except as expressly provided, supersede all prior representations, writings, negotiations or understandings with respect to that subject matter.
- DISPUTE RESOLUTION
25.1 In the event of any dispute between the Parties arising out of the Agreement, the Parties shall first each use its respective reasonable endeavours in good faith to resolve any such dispute by escalation as follows: (i) initially, by negotiation between the Parties’ nominated representatives; and (ii) if the nominated representatives shall fail to resolve the dispute within 7 days of the dispute being referred to them, by the referral to, and negotiation between senior management of the Parties; and (iii) if the senior management shall fail to resolve the dispute within 7 days of the dispute being referred to them, by the referral to, and negotiation between the senior representative appointed by the Parties; and (iv) if the said senior representative shall fail to resolve the dispute within 7 days of the dispute being referred to them, by referring to a mediator approved by mutual agreement or failing mutual agreement, chosen by CEDR (Centre for Effective Dispute Resolution) in Dublin, Ireland who shall consider the resolution of the dispute in a prompt and expeditious manner. Both Parties agree to co-operate fully with such mediator, provide such assistance as is necessary to enable the mediator to discharge his duties and to bear equally between them the fees and expenses of the mediator; and (v) if the Parties fail to agree terms of settlement of their dispute or difference or a Party refuses to participate in the mediation procedure then either Party may litigate the matter, without prejudice to either Party’s rights at any time to obtain immediate interim court relief. This Clause is without prejudice to either Party’s rights to proceed to the courts in respect of any dispute at any time. For the sake of clarity, any dispute shall not entitle the Customer to delay in making any payments under this Agreement.
- FAIR AND REASONABLE RESTRICTIONS
26.1 ZUTEC and the Customer expressly acknowledge and agree that the terms and conditions of this Agreement including, without limitation, the limitations on liability and the warranties have been individually negotiated and agreed, and that the fees payable by the Customer have been specifically calculated on the basis of and take into account such limitations and restrictions.
- INVALIDITY AND SEVERABILITY
27.1 If any provision in this Agreement is deemed to be, or becomes invalid, illegal, void or unenforceable under applicable laws, such provision will be deemed amended to conform to applicable laws so as to be valid and enforceable, or if it cannot be so amended without materially altering the intention of the Parties, it will be deleted, but the validity, legality and enforceability of the remaining provisions of this Agreement shall not be impaired or affected in any way.
- NON SOLICITATION
28.1 It is agreed that neither of the Parties hereto shall approach directly or indirectly employees of the other with offers of employment for the duration of this Agreement and for a period of one (1) year thereafter. This will not restrict either Party from employing staff who apply unsolicited in response to general advertising or other general recruitment campaigns.
- SURVIVING PROVISIONS
29.1 The following obligations will survive termination of the Agreement for any reason (i) all obligations relating to non-disclosure of confidential information (Clause 16) for a period of the longer of five (5) years following termination, or the maximum period permitted by law; (iii) all obligations relating to protection of proprietary rights (Clause 11); (iv) all obligations to make payments of amounts that are or become due under Agreement prior to termination (Clause 4); (v) all provisions regarding the limitations of liability (Clause 13); (vi) all obligations relating to non-solicitation for a period of one (1) year post termination (Clause 28) and all other clauses by their nature should survive termination; all obligations and provisions, so far as they are relevant, under clause 12 (Indemnity).
- PARTIES BOUND
30.1 This Agreement shall be binding upon and run for the benefit of the Parties, their successors and permitted assigns.
- FURTHER ASSURANCE
31.1 Each party shall do and execute, or arrange for the doing and executing of, each necessary act, document and thing reasonably within its power to implement this Agreement.
32.1 ZUTEC shall have the right to use the Customer’s names and logos in its marketing materials including any use in any client list, prospectus for investors, press release, advertisement, or any other marketing or promotional material.
33.1 This Agreement may be executed in any number of counterparts, each of which when so executed shall be deemed to be an original and all of which when taken together shall constitute this Agreement.
34.1 This Agreement shall be subject to Irish law and the Parties agree to submit to the non-exclusive jurisdiction of the Irish courts. Notwithstanding the other provisions of this Agreement, ZUTEC shall be entitled to bring an action in any jurisdiction where this relates to the protection of its intellectual property rights.
APPENDIX 1 DATA PROTECTION
DETAILS OF PROCESSING OF CONTROLLER PERSONAL DATA
This Appendix 1 includes certain details of the processing of the Controller Personal Data.
- Subject matter and duration of the processing of Controller Personal Data:
Provision of the services and related technical support for the term of the Agreement
- The nature and purpose of the processing of Controller Personal Data:
Personal Data may be processed for the purposes of providing the services and related technical support. Such processing activities may include collection, storage, alteration, retrieval, consulting and/or erasure
- The types of Controller Personal Data to be processed:
Username, Name, email address and phone number of the Software Application Users
The Customer, acting as the Controller, shall notify ZUTEC, acting as the Processor, in the event the processing involves other types of Personal Data which are not listed above.
- The categories of Data Subject to whom the Controller Personal Data relates:
End users of the Software Applications described in the Order Form and the personal data of subjects entered into the Software Applications by the end users directly or under instruction.