Finclude ToS

Last updated on: March 26, 2021

This document (the “Agreement”) sets out the contract agreed between VERGE CAPITAL LIMITED t/a Finclude (hereinafter “Verge”, “we”, “us”, “our”, or the “Supplier”) and any party (“you“, “you”, “yours” or the “Customer”) which seeks to use Verge’s Services, as described in more detail herein. The Agreement details the rights and obligations of both the Supplier and the Customer with respect to relevant services, and by signalling your acceptance of the Agreement (by checking “I agree“, “I accept” or otherwise) on a website interface or other platform provided by the Supplier, the Customer undertakes to be bound by the Agreement, including to pay relevant fees, as does the Supplier.

Background

  1. The Supplier is a software company that has specific knowledge of, and experience in delivering services of the nature detailed herein to entities active in the financial services sector.
  2. The Supplier is a company limited by shares, validly incorporated in accordance with the Laws of Ireland with limited liability. The Supplier has been allocated the registration number 630528 by the Registrar of Companies in Ireland and maintains a registered office at 2 Ballymount Road Upper, Dublin 24, Ireland.
  3. The Supplier is the owner and licensor of the Software, which is provided along with certain support as part of the overall Services.
  4. The Supplier has agreed to provide and the Customer has agreed to receive and to pay for the Services subject to the terms and conditions of this Agreement.
  5. The Supplier offers services including Account Information Services where information concerning a User’s cash flows are collected through one or more payment accounts to provide a single, aggregated, unified, overview of cash flows in order to provide insights like financial behaviour assessment, financial information verification, creditworthiness and affordability assessment.
  6. Account Information Services provided are lawfully undertaken by virtue of our registration with the Central Bank of Ireland (which has attributed us Registration Number C191059) in accordance with the provisions of the European Union (Payment Services) Regulations 2018 (S.I. No. 6 of 2018). All other services, including financial behaviour assessment, are not regulated in such a manner and users are advised of such in terms of considering the scope of the activities for which we are registered with the Central Bank of Ireland.

Agreed terms

 
1. INTERPRETATION
1.1 The following definitions and rules of interpretation apply in this Agreement (including in the Recitals).
“Affiliate” means in relation to a body corporate, any other entity which directly or indirectly Controls, is Controlled by, or is under direct or indirect common Control with, that body corporate from time to time.
“Agreement” means the terms detailed in this document.
“Appropriate Safeguards” means the measures set out in Article 46 of the GDPR.
“Business Day” means a day other than a Saturday, Sunday or public holiday in Republic of Ireland when banks are open for business.
“Charges Notice” means a notice detailing the Fees which the Supplier charges for the Services, as provided by the Supplier to the Customer in accordance with the terms of this Agreement.
“Control” means that a person possesses, directly or indirectly, the power to direct or cause the direction of the management and policies of the other person (whether through the ownership of voting shares, by contract or otherwise) and “Controls” and “Controlled” shall be interpreted accordingly.
“Confidential Information” means information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information by either of the Parties.
“Data Protection Legislation” means the Data Protection Acts 1988 to 2018, the General Data Protection Regulation (EU) 2016/679 (“GDPR”), and any other applicable law or regulation relating to the Processing of Personal Data and to privacy, including the E-Privacy Directive 2002/58/EC and the European Communities (Electronic Communications Networks and Services) (Privacy and Electronic Communications) Regulations 2011 (“E-Privacy Regulations”), as such legislation shall be supplemented, amended, revised or replaced from time to time.
“DPC” Office of the Data Protection Commission, Canal House, Station Road, Portarlington, Co. Laois, R32 AP23, Ireland;
“Effective Date” means the date on which the Customer indicates its acceptance of the Terms of this Agreement.
“EU Restrictive Measures” means any restrictive measures adopted pursuant to the Treaty on European Union or to the Treaty on the Functioning of the European Union.
“Fees” means the fees payable by the Customer to the Supplier, detailed in such Charges Notices as are communicated by the Supplier to the Customer from time to time.
“Intellectual Property Rights” means all intellectual property rights including patents, trade marks, service marks, design rights, copyright, database rights, moral rights (whether or not any of these are registered and including any applications for registration of any such rights), inventions, know how, confidential information and trade secrets, together with all goodwill attaching or relating thereto, and all rights or forms of protection of a similar nature or having similar effect to any of these which may exist or come into existence in the future anywhere in the world.
“Normal Business Hours” means 9:00-17:30 local Irish time, each Business Day.
“Renewal Period” means the period described in Clause 15.1.
“Restricted Transfers” any transfer of Personal Data to countries outside of the European Economic Area which are not subject to an adequacy decision by the European Commission, where such transfer would be prohibited by Data Protection Legislation.
“Sanctioned Person” means any entity, individual or group of individuals designated by the European Union as subject to EU Restrictive Measures.
“Services” means the services provided by the Supplier to the Customer under this Agreement as more particularly set out in Clause 3.
“Shared Data” has the meaning given to this term in Clause 5.1.
“Standard Contractual Clauses” the contractual clauses dealing with the transfer of Personal Data outside the European Economic Area, which have been approved by (i) the European Commission under Data Protection Legislation, or (ii) by the DPC or an equivalent competent authority under Data Protection Legislation.
“Software” means the electronic system(s), platform(s), and/or programme(s) provided by the Supplier in connection with the Services, as more particularly provided for in Clause 3.
“Parties” means the Customer and the Supplier, each being a “Party” where the context requires.
“Users” means those natural persons who are clients of the Customer and referred to the Supplier by the Customer. .
1.2 Clause, Schedule and paragraph headings shall not affect the interpretation of this Agreement.
1.3 A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality), and that person’s legal and personal representatives, successors or permitted assigns.
1.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.5 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.6 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.7 A reference to a statute or statutory provision is a reference to it as it is in force as at the Effective Date.
1.8 A reference to a statute or statutory provision shall include all subordinate legislation made as at the Effective Date under that statute or statutory provision.
1.9 A reference to writing or written includes e-mail.
1.10 References to Clauses and Schedules are to the Clauses and Schedules of this Agreement; references to paragraphs are to paragraphs of the relevant Schedule to this Agreement.
2. LICENCE
2.1 Subject to the terms and conditions of this Agreement, the Supplier hereby grants to the Customer a non-exclusive, non-transferable, non-sub-licensable licence to use the Software for normal operational reasons only for the duration of the term of this Agreement on computer equipment on the Customer’s business premises.
2.2 The Customer shall not access, store, distribute or transmit any viruses, or any material during the course of its/their use of the Software that:
2.2.1 is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
2.2.2 facilitates illegal activity;
2.2.3 depicts sexually explicit images;
2.2.4 promotes unlawful violence;
2.2.5 is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
2.2.6 in a manner that is otherwise illegal or causes damage or injury to any person or property;
and the Supplier reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer’s access to any material that breaches the provisions of this Clause.
2.3 The Customer shall not, except to the extent expressly permitted under this Agreement:
2.3.1 attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Services and/or Software (as applicable)] in any form or media or by any means; or
2.3.2 attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
2.3.3 access all or any part of the Services and/or Software in order to build a product or service which competes with the Services or Software; or
2.3.4 use the Services and/or the Software to provide services to third parties; or
2.3.5 license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Software available to any third party, or
2.3.6 attempt to obtain, or assist third parties in obtaining, access to the Services and/or Software, other than as provided under this Agreement.
2.4 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and, in the event of any such unauthorised access or use, promptly notify the Supplier. The Customer shall restrict access to the Services and/or Software to such servants, agents, officers, and employees as the Customer requires, and shall monitor the activities of the same to ensure no contravention of the terms of this Agreement.
2.5 The rights provided under this Agreement are granted to the Customer only, and shall not be considered granted to any Affiliate of the Customer.
3. SERVICES
3.1 The Supplier shall, during the period during which this Agreement shall continue in effect, provide the Services to the Customer on and subject to the terms of this Agreement, said services comprising:
3.1.1 access to Software which provides the Customer access to financial performance data and metrics with respect to each of the Users as the Customer selects; and
3.2.1 maintenance, updating and development of the Software.
3.2 The Supplier shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:
3.2.1 planned maintenance performed outside Normal Business Hours;
3.2.2 unscheduled maintenance performed during Normal Business Hours where necessary; and
3.2.3 disruption to Services as a result of third-party acts or omissions which disable or otherwise significantly restrict the ability of the Supplier to provide the Services for a short period, such acts or omissions including distributed denial of service attacks, etc.
3.3 The Supplier will, as part of the Services and at no additional cost to the Customer, provide the Customer with the Supplier’s standard customer support services during Normal Business Hours in accordance with the Supplier’s Support Services Policy in effect at the time that the Services are provided. The Supplier may amend the Support Services Policy in its sole and absolute discretion from time to time. The Customer may purchase enhanced support services separately at the Supplier’s then current rates.
4. SERVICES INVOLVING LIAISON WITH USERS
4.1 In addition to the Services provided to the Customer under the terms of this Agreement, the Supplier shall also provide, to Users an SMS prompt (where relevant details are provided by the Customer) directing Users to the Customer’s secure communication route and portal through which they can provide financial performance data and metrics and other Personal Data and information related to the User (the “User Information”) to the Supplier to allow the Supplier to discharge its obligations as set out in Clause 3 above. The Supplier shall provide such SMS to each and every User as the Customer shall request as soon as reasonably practicable, and to use telephone number or other contact mechanism as the Customer shall direct.
4.2 The Supplier shall be under no obligation to provide such services with respect to Sanctioned Persons.
5. DATA PROTECTION REQUIREMENTS
5.1 To the extent that the User Information contains Personal Data of the User (“Shared Data”), then such Personal Data will be Processed by the parties in accordance with Data Protection Legislation and the succeeding provisions of this Clause 5.
5.2 Each Party shall be individually responsible, as an independent Controller, for its own Processing of the Shared Data, which means that each Party determines the purposes and means of its respective Processing of the Shared Data.
5.3 Each Party warrants and undertakes to the other Party that it has and will continue to comply with its own obligations as an independent Controller under Data Protection Legislation in respect of the Shared Data.
5.4 Neither Party shall be construed as a Processor in relation to the other Party, unless the conditions for Processing of the Shared Data change such that one Party Processes Personal Data on behalf of and on the instructions of the other Party.
5.5 The Parties shall not be construed as joint Controllers unless the conditions for Processing of the Shared Data change such that the Parties in conjunction with one another jointly, in a collaborative fashion, determine the purposes and means of Processing the Shared Data.
5.6 Each of the Parties will inform the other of them as soon as possible of any requests from Data Subjects regarding rectification or erasure of Shared Data, or restriction of or objection to the Processing of Shared Data for the purposes of this Agreement. Each of the Parties shall, to the extent that such a request affects the Processing of Shared Data, provide reasonable assistance to the other of them to enable compliance with Data Protection Legislation. Notwithstanding the foregoing, each of the Parties shall remain responsible itself for dealing with requests from Data Subjects in respect of Shared Data, to the extent that such requests are directed by the Data Subject to the relevant Party (or any of its agents, employees or sub-contractors).
5.7 Each of the Parties shall notify the other of them immediately if it becomes aware of, or suspects: (i) any breach of this Agreement; or (ii) a Personal Data Breach which is likely to affect or invoke the other Party’s obligations under Data Protection Legislation, or (iii) any situation or envisaged development that shall in any way influence, change or limit the Processing of the Shared Data for the Agreed Purpose. Each of the Parties shall document all Personal Data Breaches in accordance with Data Protection Legislation and fully cooperate with the other Party to ensure compliance with Data Protection Legislation. Each of the Parties shall use reasonable endeavours to mitigate any damage suffered by a Data Subject in these circumstances.
5.8 A Restricted Transfer may only be made by either of the Parties where there are Appropriate Safeguards in place with regard to the rights of Data Subjects (including but not limited to the Standard Contractual Clauses, binding corporate rules, or any other model clauses or transfer mechanism approved by the DPC). Any Restricted Transfer made by one Party (“Data Exporter”) to the other Party (“Data Importer”) shall be made subject to the provisions set out in the Standard Contractual Clauses and such Standard Contractual Clauses (except for any optional provisions contained in same, which shall not apply) are hereby specifically incorporated into this Agreement by reference for such purpose. The Party who is entering into the Appropriate Safeguards with a Data Importer shall comply with the guidance of any relevant regulatory authority on Restricted Transfers in particular with respect to the use of Standard Contractual Clauses and any additional or supplementary measures required to be taken in the context of any such Restricted Transfers including the requirement to carry out risk assessments and to adopt mitigating measures to ensure essentially equivalent protection for Data Subjects in the jurisdiction of the Data Importer. These requirements shall not apply to a Restricted Transfer if other compliance steps (which may include, but shall not be limited to, obtaining explicit consents from Data Subjects) have been taken to allow the relevant Restricted Transfer to take place without breach of applicable Data Protection Legislation.
5.9 In the event that (i) either party is required to enter into the Standard Contractual Clauses in accordance with Clause 5.8, and (ii) there is any conflict or ambiguity between any provision contained in this Agreement and any provision contained in such Standard Contractual clauses, ,the Standard Contractual Clauses shall take precedence in respect of such conflict (other than in respect of legislative references etc. which have been updated pursuant to Data Protection Legislation since the date of approval of such Standard Contractual Clauses).
5.10 The Customer hereby indemnifies the Supplier against all claims, liabilities, costs, expenses, damages and losses suffered or incurred by the Supplier arising out of or in connection with any breach by the Customer (or any of its employees/agents/sub-contractors) of any terms of this Clause 5, or its obligations under Data Protection Legislation, or any use by the Supplier of the Shared Data.
5.11 The Customer hereby agrees and undertakes to disclose the following notice (or a variant thereof agreed with the Supplier) to all Users, and to indemnify and hold harmless the Supplier with respect to any failure to provide such notice to, or otherwise obtain the consent of, any one or more User:
“In order to use our services, you must consent on an ongoing basis to your personal data being shared with Verge Capital Limited t/a Finclude to perform credit referencing services. We will disclose your personal data to Verge Capital Limited t/a Finclude on that basis, and note that Verge Capital Limited will provide services in accordance with the Privacy Policy detailed at https://www.finclude.ai/privacy-policy”
5.12 Where used in this clause, the expressions “Controller”, “Data Subject”, “Personal Data Breach”, “Processor”, “Personal Data” and “Processing” shall bear their respective meanings given in the Data Protection Legislation.
6. THIRD PARTY DATA
6.1 Beyond the Personal Data obtained and held by the Supplier as Controller, the Supplier does not and shall not seek to own any data, information or material that the Customer submits to the Supplier in the course of using the Services (“Received Data”). The Customer, not the Supplier, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Received Data, including Personal Data, and the Supplier shall not be responsible or liable for any infringement of Intellectual Property Rights of any third party or for the deletion, correction, destruction, damage, loss or failure to store any Received Data. The Supplier reserves the right to withhold, remove and/or discard Received Data without notice for any breach, including, without limitation, non-payment by the Customer. Upon termination for cause, the Customer’s right to access or use Received Data immediately ceases, and the Supplier shall have no obligation to maintain or forward any Received Data.
7. SUPPLIER’S OBLIGATIONS
7.1 The Supplier undertakes that the Services will be performed with reasonable skill and care.
7.2 The undertaking at Clause 7.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to the Supplier’s instructions, or modification or alteration of the Services by any party other than the Supplier or the Supplier’s duly authorised contractors or agents.
7.2.1 does not warrant that the Customer’s use of the Services will be uninterrupted or error-free; or that the Services and/or the information obtained by the Customer through the Services will be error free or will meet the Customer’s requirements; and
7.2.2 is 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 the Customer acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
7.3 This Agreement shall not prevent the Supplier from entering into similar Agreements with third parties, or from independently developing, using, selling or licensing documentation, products, software and/or services which are similar to those provided under this Agreement.
7.4 The Supplier warrants that it has and will maintain all necessary licences, consents, and permissions required for the performance of its obligations under this Agreement.
8. CUSTOMER’S OBLIGATIONS
8.1 The Customer shall
8.1.1 provide the Supplier with all necessary co-operation in relation to this Agreement;
8.1.2 provide the Supplier with all necessary access to such information and Customer systems as may be required by the Supplier;
8.1.3 ensure that it has all appropriate consents and notices in place or other lawful basis for processing to enable lawful transfer of the Personal Data to Supplier for the duration and purposes of this Agreement;
8.1.4 comply with all applicable laws and regulations with respect to its activities under this Agreement;
8.1.5 carry out all other Customer responsibilities set out in this Agreement in a timely and efficient manner. In the event of any delays in the Customer’s provision of such assistance as agreed by the Parties, the Supplier may adjust any agreed timetable or delivery schedule as reasonably necessary;
8.1.6 obtain and shall maintain all necessary licences, consents, and permissions necessary for the Supplier, its contractors and agents to perform their obligations under this Agreement, including without limitation the provision of the Services;
8.1.7 ensure that no Users who are Sanctioned Persons are referred to the Supplier for the purposes of this Agreement;
8.1.8 ensure that its network and systems comply with the relevant specifications provided by the Supplier from time to time; and
8.1.9 be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to the Supplier’s data centres, 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.
9. CHARGES AND PAYMENT
9.1 The Customer shall pay the Fees to the Supplier for the Services in accordance with this Clause 9.
9.2 The Customer shall pay Fees to the Supplier in the manner, and at the frequency detailed in a Charges Notice, with arrangements varying depending on and service structures agreed.
9.3 All amounts and fees stated or referred to in this Agreement:
9.3.1 shall be payable in Euro;
9.3.2 are, subject to Clause 15, non-cancellable and non-refundable;
9.3.3 are exclusive of value added tax (to the extent applicable).
9.4 Where the Supplier and the Customer have agreed to a means of billing for and paying Fees which involves provision of invoices (and a Charges Notice issues to that effect):
9.4.1 The Supplier shall invoice the Customer on a monthly basis for the Fees payable, as set out in a Charges Notice provided by the Supplier to the Customer, such invoices shall be due as of their date of issue, and the Customer shall pay each invoice immediately. Where the Customer does not pay any invoice within 30 days after the date of such invoice, the Supplier shall be entitled to charge, and the Customer shall pay, interest on the outstanding balance calculated by the Supplier on the basis of the number of days outstanding, in accordance with the rates detailed in the European Communities (Late Payment in Commercial Transactions) Regulations 2012, as amended, restated, or superseded from time to time.
9.4.2 If the Supplier has not received payment within 30 days after the due date, and without prejudice to any other rights and remedies of the Supplier may, without liability to the Customer, disable the Services and the Supplier shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid. In the event of disconnection, the Customer may be required to pay a reconnection fee as a condition of reactivation of access to the Services in addition to full payment of all amounts due under this Agreement. Further,
9.4.3 interest shall accrue on a daily basis on such due amounts at an annual rate equal to 3% over the then current base lending rate of the Supplier’s bankers in Ireland from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
10. PROPRIETARY RIGHTS AND IP
10.1 The Customer acknowledges and agrees that the Supplier and/or its licensors own all intellectual property rights in the Services and the Software. Except as expressly stated herein, this Agreement does not grant the Customer any Intellectual Property Rights, or any other rights or licences in respect of the Services or the Software.
10.2 The Supplier confirms that it has all the rights in relation to the Services and the Software that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this Agreement.
10.3 The Customer grants to the Supplier a non-exclusive licence for the term of this Agreement, subject to, and in accordance with, the terms of this Agreement reproduce any and all logos, symbols, and common designs associated with the Customer, including where subject to trademark, copyright, or other protection against infringement (together the “Customer Marks”), whether or not such form part of the Intellectual Property Rights of the Customer, in any business standard advertising or promotional material relating to the Supplier and/or the Services.
10.4 The Supplier acknowledges and agrees that all copyright and rights in the nature of copyright subsisting in any part of the world in any Customer Marks shall vest in the Customer. The Supplier shall:
10.4.1 comply with any reasonable specifications, standards or directions relating to the promotional or advertising material insofar as they concern the Customer Marks where such are notified in writing by the Customer from time to time; and
10.4.2 procure that every place in which a Customer Mark is displayed shall be accompanied by a statement or representation, where applicable, which indicates the protection which such Customer Mark enjoys, e.g. ®™© or otherwise.
10.4.3 immediately notify the Customer in writing giving full particulars if any of the following matters come to its attention:
(a)any actual, suspected or threatened infringement of the Customer Mark(s);
(b)any claim made or threatened that the Customer Mark(s) infringes the rights of any third party; or
(c)any other form of attack, charge or claim to which the Customer Mark may be subject.
10.5 The Customer warrants that:
10.5.1 it is the sole legal and beneficial owner of, and owns all the Customer Marks; or at least has authority to use and grant the Supplier right to use them;
10.5.2 Where the Customer Marks form part of the Intellectual Property Rights of an entity related to the Customer, including part of the same corporate group as the Customer, it has ensured that the Customer as requisite authority and permission to provide the licence detailed in this clause 10; and
10.5.3 it indemnifies the Supplier against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by the Supplier arising out of or in connection with its use of the Customer Marks in accordance with the provisions of this Agreement, and such indemnity shall extend beyond the termination of this Agreement.
11. CONFIDENTIALITY
11.1 Each Party may be given access to Confidential Information from the other Party in order to perform its obligations under this Agreement. A Party’s Confidential Information shall not be deemed to include information that:
11.1.1 is or becomes publicly known other than through any act or omission of the receiving Party;
11.1.2 was in the other Party’s lawful possession before the disclosure;
11.1.3 is lawfully disclosed to the receiving Party by a third party without restriction on disclosure;
11.1.4 is independently developed by the receiving Party, which independent development can be shown by written evidence; or
11.1.5 is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
11.2 The Supplier shall not provide the Services with respect to any User after such User withdraws their consent to share relevant information with the Customer, and both Parties acknowledge and accept that such is fair and proper and such an action on the part of the Supplier shall not constitute a breach or other transgression of this Agreement.
11.3 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.
11.4 Each Party shall 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.
11.5 Neither Party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
11.6 This Clause 11 shall survive termination of this Agreement, howsoever arising.
11.7 Either Party shall be entitled to, and shall have the consent of the other Party hereto, to advise any and all third parties, including the public at large and any section thereof, of their having entering into this Agreement, the name and nature of the Parties, and a summary overview of the services of which it relates.
11.8 Subject to the general right to engage in high-level publicity, as detailed at 10.7 above, no Party shall make, or permit any person to make, any public announcement concerning this Agreement without the prior written consent of the other Party (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
12. INDEMNITY
12.1 The Customer shall defend, indemnify and hold harmless the Supplier against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer’s use of the Services or Customer’s discharge of its duties under this Agreement, provided that:
12.1.1 on the Supplier becoming aware of any such claim, the Customer is given prompt notice same;
12.1.2 the Supplier provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer’s expense; and
12.1.3 the Customer is given sole authority to defend or settle the claim.
12.2 In the defence or settlement of any claim referred to in Clause 12.1, the Supplier may procure the right for the Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this Agreement on two (2) Business Days’ notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.
12.3 In no event shall the Supplier, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:
12.3.1 a modification of the Services or Software by anyone other than the Supplier; or
12.3.2 the Customer’s use of the Services or Software in a manner contrary to the instructions given to the Customer by the Supplier; or
12.3.3 the Customer’s use of the Services or Software after notice of the alleged or actual infringement from the Supplier or any appropriate authority.
12.4 The foregoing constitutes the Customer’s sole and exclusive rights and remedies, and the Supplier’s (including the Supplier’s employees’, agents’ and/or sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
13. LIMITATION OF LIABILITY
13.1 This Clause 13 sets out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer:
13.1.1 arising under or in connection with this Agreement;
13.1.2 in respect of any use made by the Customer of the Services or any part of them; and
13.1.3 in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Agreement.
13.1.4 The Parties expressly acknowledge and agree that the Supplier’s Services are provided to the Customer on an “as is” basis.
13.2 Nothing in this Agreement excludes the liability of the Supplier:
13.2.1 for death or personal injury caused by the Supplier’s negligence; or
13.2.2 for fraud or fraudulent misrepresentation.
13.3 Subject to Clause 13.2 and Clause 13.3:
13.3.1 the Supplier shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this Agreement;
13.3.2 the Supplier’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to the total Fees paid during the six (6) months immediately preceding the date on which the claim arose.
14. NON-SOLICITATION
14.1 The Customer hereby covenants to the Supplier that it shall not, and it shall procure that its Affiliates shall not, during the period of three (3) years from the Effective Date, solicit the services of, or endeavour to entice away from the Supplier any director, employee or consultant of the Supplier who at the Effective Date or at any time during the period of twelve (12) months prior to the Effective Date was a director, employee or consultant of the Supplier (whether or not such person would commit any breach of his contract of employment or engagement by reason of leaving the service of the Supplier).
15. TERM AND TERMINATION
15.1 This Agreement shall, unless otherwise terminated as provided in this Clause 15, commence on the Effective Date and, other than where a minimum term is agreed between the parties, shall continue until terminated by one or other of the Supplier or the Customer. Where a minimum term is agreed, the Agreement shall last for such term and thereafter, shall be automatically renewed for successive periods of one (1) month (each a “Renewal Period”), unless:
15.1.1 either Party notifies the other Party of termination, in the case of the Supplier by way of electronic notice, and in the case of the Customer, by way of deselecting the auto-renewal feature provided for in the Customer’s dedicated online portal as provided by the Supplier; or
15.1.2 otherwise terminated in accordance with the provisions of this Agreement.
15.2 Where a minimum term has been agreed between the Parties, as described in greater detail in Clause 15.1 above, either Party may terminate the Agreement with immediate effect by giving written notice to the other Party if:
15.2.1 the other Party fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment;
15.2.2 the other Party commits a material breach of any other term of this Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so. For the avoidance of doubt, the parties acknowledge and agree that a failure by a Customer to discharge an invoice within 30 days of issue shall constitute a material breach and the Supplier shall be entitled to consider such as a material breach and terminate the Agreement accordingly;
15.2.3 the other Party repeatedly breaches any of the terms of this Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Agreement;
15.2.4 the other Party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts;
15.2.5 the other Party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other Party with one or more other companies or the solvent reconstruction of that other Party;
15.2.6 a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other Party other than for the sole purpose of a scheme for a solvent amalgamation of that other Party with one or more other companies or the solvent reconstruction of that other Party;
15.2.7 an application is made to court, or an order is made, for the appointment of an examiner, or if a notice of intention to appoint an examiner is given or if an examiner is appointed, over the other Party;
15.2.8 the holder of a qualifying floating charge over the assets of that other Party has become entitled to appoint or has appointed a receiver;
15.2.9 a person becomes entitled to appoint a receiver over the assets of the other Party or a receiver is appointed over the assets of the other Party;
15.2.10 a creditor or encumbrancer of the other Party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other Party’s assets and such attachment or process is not discharged within 14 days;
15.2.11 any event occurs, or proceeding is taken, with respect to the other Party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in Clause 15.2.4 to Clause 15.2.10 (inclusive);
15.2.12 the other Party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
15.3 Where no minimum term has been agreed between the Parties, as described in more detail in clause 15.1 above, either the Customer or Supplier may terminate this Agreement immediately on notice to the other; and non-payment of Fees due, when arising, may be considered, by the Supplier, as notice of termination by the Customer.
15.4 Irrespective of any other right to terminate under this Agreement, the Customer may terminate this Agreement within 30 days of receipt of a Charges Notice which details an increase in Fees as against that in effect at the Effective Date, or the last Charges Notice, whichever is later. Where the Customer does not terminate this Agreement within such a 30 day period, the Supplier shall be entitled to consider the Customer as being in agreement with the charges detailed in the Charges Notice and to levy fees accordingly.
15.5 The Supplier may suspend the provision of the Services and/or terminate this Agreement at any time on notice to the Customer where: (i) a financial regulator, regulatory agency, or law enforcement agency posts a warning with regard to the Customer: (ii) any governmental, regulatory, or judicial authority directs the Supplier to suspend or terminate this Agreement; (iii) or the Supplier reason to believe that the Customer is engaged in fraud, money laundering, or terrorist financing.
15.6 On termination of this Agreement for any reason:
15.6.1 all licences granted under this Agreement shall immediately terminate; and
15.6.2 any rights, remedies, obligations or liabilities of the Parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination shall not be affected or prejudiced.
16. FORCE MAJEURE
The Supplier shall have no liability to the Customer under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), 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, provided that the Customer is notified of such an event and its expected duration.
17. CONFLICT
If there is an inconsistency between any of the provisions in the main body of this Agreement and the Schedules, the provisions in the main body of this Agreement shall prevail.
18. VARIATION
18.1 The Supplier may modify this Agreement, including any documents incorporated into the same by reference, from time to time provided that the Supplier shall first provide notice of such modifications to the Customer. Such notice shall provide an overview of the relevant modifications to the Customer, with such changes being set out in documentary form as against the terms of the Agreement in force prior to such modification taking effect.
18.2 The Supplier shall have no power to make changes of a retroactive nature.
18.3 Where the Supplier exercises such a right to alter the terms of this Agreement, the Customer shall be entitled to terminate the Agreement in accordance with its terms prior to relevant modifications becoming effective.
18.4 Any continued use of the Services by the Customer after the Supplier’s notification of any modifications shall be considered acceptance of said modification(s) to the Agreement by the Customer, and the Customer agrees to and acknowledges the same.
19. WAIVER
No failure or delay by a Party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it 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.
20. RIGHTS AND REMEDIES
Except as expressly provided in this Agreement, the rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
21. SEVERANCE
21.1 If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
21.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the Parties.
22. ENTIRE AGREEMENT
22.1 This Agreement, and any documents referred to in it, constitute the whole agreement between the Parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.
22.2 Each of the Parties acknowledges and agrees that in entering into this Agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this Agreement or not) relating to the subject matter of this Agreement, other than as expressly set out in this Agreement.
23. ASSIGNMENT
23.1 The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
23.2 The Supplier may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
24. NO PARTNERSHIP OR AGENCY
Nothing in this Agreement is intended to or shall operate to create a partnership between the Parties, or authorise either Party to act as agent for the other, and neither Party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
25. NOTICES & CONTACT DETAILS
25.1 Any notice required to be given under this Agreement, including with respect to payments, alterations to the Agreement, etc., shall be in writing and shall be delivered by email to the other Party at the address provided by the Customer at the outset of this Agreement, in the case of the Customer; and the address provided on the Supplier’s website, in the case of the Supplier, or such other address as may have been notified by that Party for such purposes.
25.2 The Parties shall be entitled to use, and rely on use of, the contact details provided by each other at the outset of this Agreement, until advised of changes thereto in accordance with the terms of this Clause 26. For the avoidance of doubt, either Party’s communicating to or through an email inbox notified as being associated with the other party at the outset shall, other conditions being adhered to, be considered appropriate notice until such time as the communicating party is advised of an alternate email mailbox, etc.
26. GOVERNING LAW
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 law of the Republic of Ireland.
27. JURISDICTION
Each Party irrevocably agrees that the courts of the Republic of Ireland shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).