Charges

[1] In consideration of the Services, You shall pay the Charges to Us in accordance with the Proposal. The Charges are set out exclusive of taxes and expenses. At the start of the Project, the Project Deposit Fee as set out in the Proposal will be billed by us and must be paid for by electronic bank transfer in full by You within fourteen (14) days of the date of our invoice. Subsequent Project Opening Fees and Project Interim Fees may also be required as indicated in the Proposal and shall be paid by electronic bank transfer on the date specified in the invoice. When the Project Completion Form is received and in accordance with the Proposal, the Project Closing Fee and the first Annual License Fee, as set out in the Proposal will be invoiced and shall be paid by electronic bank transfer on the date specified in the invoice. All subsequent Annual License Fees and any additional Fees will be invoiced in advance and shall be paid by electronic bank transfer on the date specified on the invoice.

In the event of late payment of any of the Charges, interest shall be charged at the rate of interest referred to in the European Communities (Late Payment in Commercial Transactions) Regulations 2002, from the date of invoice until the date of actual payment, such interest to accrue daily and both before and after judgement.

All Charges referred to in this Agreement are exclusive and net of any taxes, duties or such other additional sums which shall be paid by You including, but without prejudice to the generality of the foregoing, VAT (if applicable), excise tax, tax on sales, property or use, import or other duties levied in respect of this Agreement.

You shall reimburse us for any vouched expenses which we may reasonably incur in relation to the provision of the Services. On travel distances exceeding 2.5 hours, our senior Directors will travel business class and all hotel accommodation should b three star rated accommodation or higher.

Obligations

Our Obligations

• [1] We shall use our reasonable endeavours to ensure that the Services are supplied with reasonable skill and diligence and in accordance with the standard Digi-Sign Service Level Agreement as published at www.digi-sign.com/sla [3].
• We may suspend the Services for operational reasons such as repair, maintenance or improvement of the System or in the event of a situation which we deem to be an emergency occurring and We shall notify You as soon as is practicable in relation to such. We shall use our reasonable commercial endeavours to restore the Services as soon as is practicable after any suspension.
• We shall use appropriate experienced qualified, skilled and trained personnel in performing the Services.
• We shall use our reasonable commercial endeavours to ensure that the System is adequately secured in accordance with the Proposal.

Your obligations

• You shall carry out all actions and provide all facilities, information, support, resources, suitably qualified personnel and co-operation as may be requested by Us or as may be reasonably necessary to enable Us to carry out our obligations under this Agreement.
• You shall procure that your relevant employees, officers, agents, contractors and sub-contractors co-operate fully with Us to enable Us to carry out our obligations under this Agreement.
• You shall obtain all necessary consents, licences, certificates, examinations and all other documents and pay all taxes, fees, import and export duties in connection with the your use of the AACD™ System, your receipt of the Services and your activities which require the Services and You hereby undertake that you have complied and shall during the Term continue to comply with all applicable statutes, statutory instrument, regulations, directives, rules, voluntary codes, orders or bye-laws or any amendment or re-enactment thereof insofar as they related to your availing of the Services.

Use of Software

Use of Software

• [1] In consideration of the payment of the Charges by You and subject to the terms and conditions of this Agreement, We hereby grant a revocable, non-exclusive and non-transferable licence to You to use the AACD™ systems and any related software supplied by Us in conjunction with the Services (the "Software") for the purposes of availing of the Services in accordance with this Agreement.




• The licence granted in the top is subject to the following restrictions:




• You shall not remove or alter of our copyright and other intellectual property rights notices included in the Software;
• You shall not (except as otherwise expressly permitted by this Agreement or by applicable law) modify, adapt, translate, decompile, disassemble or reverse engineer the Software in any manner and You shall not merge or integrate the Software into any other computer program or work, and shall not create derivative works of the Software unless it has received our prior written consent;
• Subject always to any rights which You enjoy under applicable law and save as expressly provided in this Agreement, You shall not sub-licence, distribute, market, lease, sell, commercially exploit, loan or give away the Software;
• You shall notify Us forthwith if You become aware of any of any unauthorised use of the Software by any third party; and
• You shall adhere to any additional restrictions in relation to your use of the Software which We may notify to You from time to time.

Ownership and Intellectual

Ownership and Intellectual Property Warranty

• [1] All intellectual property rights in the Software belong to Us or are lawfully licensed to Us (with rights to sub-licence) and You acknowledge that You have no ownership claims or rights whatsoever in the Software.
  
  
• We undertake to defend You from and against any claim or action that the possession, use, development, modification or maintenance of the Software in accordance with the terms of this Agreement infringes the intellectual property rights of a third party (an "Infringement Claim") and we shall indemnify and hold You harmless from and against any losses, damages, reasonable costs (including all legal fees) and expenses incurred by or awarded against You as a result of or in connection with any such Infringement Claim. For the avoidance of doubt, the above indemnity shall not apply where the Infringement Claim in question is attributable to possession, use, development, modification or maintenance of the Software by You other than in accordance with the terms of this Agreement.
  
  
• You agree that:


• You shall as soon as reasonably practicable notify Us in writing of any Infringement Claim of which You have notice;
• You shall not make any admission as to liability or compromise or agree to any settlement of any Infringement Claim without our prior written consent; and
• We shall, on our written request and at our own expense, be entitled to have the conduct of or settle all negotiations and litigation arising from any Infringement Claim and You shall, at our request and reasonable expense, give Us all reasonable assistance in connection with those negotiations and such litigation.




• If any Infringement Claim is made, or in our reasonable opinion is likely to be made, against You, We may at our sole option and absolute discretion:


• Procure for You the right to continue using, developing, modifying or maintaining the Software (or any part thereof) in accordance with the terms of this Agreement; or
• Modify the Software so that it ceases to be infringing; or
• Replace the Software with non-infringing software.

Limitation of Liability

Limitation of Liability and indemnity

• [1] You shall indemnify Us in full and hold Us harmless in respect of any loss, damages, proceedings, suits, third party claims, judgements, awards, expenses and costs (including legal costs) incurred by or taken against Us, as a result of the negligence, fault, error, omission, act or breach by You or your employees, staff, contractors, agents or representatives in any way connected with the Services and for any breach of this Agreement whatsoever




• We shall not be liable for any economic, special, incidental, indirect, punitive or consequential loss and which shall, without limitation, include loss of business, revenue or profits, loss of use or data, loss of savings or anticipated savings, loss of investments or loss of reputation or goodwill, loss of capital and loss of administrative costs incurred by or taken against You or any third party arising howsoever from this Agreement, and whether arising under contract, tort, statute, equity or otherwise.




• Notwithstanding any other provision of this Agreement, our aggregate liability for or in respect of all breaches of our contractual obligations under this Agreement and all representations, statements and tortious acts or omissions (including negligence but excluding negligence causing loss of life or personal injury) arising under or in connection with this Agreement shall in no event exceed 50% of the aggregate Charges paid by you pursuant to this Agreement in the previous 12 months prior to such breach or act causing such loss or liability.




• We do not warrant that the operation of the Software or Services will be uninterrupted or error or interruption free.




• The express terms of this Agreement are in lieu of all warranties, conditions, undertakings, terms of obligations implied by statute, common law, trade usage, course of dealing or otherwise, all of which are hereby excluded to the fullest extent permitted by law.




• Without prejudice to the generality of clause 7.5 and for the avoidance of doubt, all terms implied by Sections 13, 14 and 15 of the Sale of Goods Act, 1893 are hereby excluded and all terms implied by the Sale of Goods and Supply of Service Act, 1980 including, without prejudice to the generality of the foregoing, Section 39, are hereby excluded to the extent that such is fair and reasonable.

Information & Security

CONFIDENTIAL information and security

• [1] During and after this Agreement, the parties will keep in confidence and use only for the purposes of this Agreement all Confidential Information. Confidential Information means information belonging or relating to the parties, their business or affairs, including without limitation, information relating to customers, finances, personal data, personnel and other material or information considered confidential and proprietary by the parties or which either party is otherwise informed is confidential or might or ought reasonably expect that the other party would regard as confidential or which is marked "Confidential".

  Confidential Information does not include any information (i) which one party knew before the other party disclosed it to that party; (ii) which has become publicly known through no wrongful act of either party, or either parties’ employees or agents; or (iii) which either party developed independently, as evidenced by appropriate documentation; or (iv) which is required to be disclosed by law.




• The parties will procure and ensure that each of its employees, agents, servants, sub-contractors and advisers will comply with the provisions contained in this clause.




• This clause shall survive the termination of this Agreement.

Term and Termination

Term and Termination

• [1] This Agreement shall take effect from the date on which these terms and conditions are signed and shall apply for an initial term of three (3) years (the "Initial Term") and shall continue to be automatically renewed annually thereafter unless either party gives the other party 90 days notice in writing of its intention to terminate.




• Either Party shall be entitled to terminate this Agreement with immediate effect at any time, by giving written notice to the other if:


• The other Party (the "Defaulting Party") is in material breach of any of its obligations under this Agreement and where the breach is capable of remedy, such breach has continued un-remedied for a period of 30 days after notice has been given to the Defaulting Party specifying the breach and the steps required to remedy it; or




• The other Party goes into liquidation, either compulsory or voluntarily (except a solvent voluntary liquidation for the purposes of and immediately followed by a reconstruction or amalgamation on terms approved by the other party), or a resolution is passed for its winding up or if a receiver, examiner, administrator or manager is appointed in respect of the whole or any material part of its assets, or if the other party makes a composition with its creditors generally or it suffers any other similar consequence under the bankruptcy laws of the country in which it is incorporated or where it is based.




• The right to terminate this Agreement given by this clause 9 and any termination of this Agreement howsoever will be without prejudice to any other accrued right or remedy of either Party including accrued rights or remedies in respect of the breach concerned (if any) or any other breach, or which the Parties have accrued prior to termination.




• In the event of termination occurring prior to the expiration to the Initial Term and where such termination is a result of a default or breach by You or where You have terminated this Agreement without cause during the Initial Term, then on such termination, You shall be liable to pay Us liquidated damages which shall amount to the unpaid portion of the aggregate Charges payable by You during the Initial Term.




• You acknowledge that the amount of liquidated damages provided herein is fair and reasonable and represents a fair and genuine pre-estimate of our resulting loss when termination occurs in accordance with clause 9.4. You confirm that You understand that our initial costs equate approximately with the aggregate amount of Charges payable during the Initial Term.

Force Majeure

Force Majeure

• [1] If either party is affected by any circumstances beyond the reasonable control of that party (including, without prejudice to the foregoing generality, any strike, lockout or other form of industrial actions or prohibitive governmental regulation or order, acts of God, walk-outs, riots, acts of war, epidemics, power failures, failures in the infrastructure of the internet or other telecommunication systems, earthquakes or other disasters) ("Force Majeure"), it shall, as soon as reasonably practicable, notify the other party of the nature and extent thereof.




• Neither party shall be deemed to be in breach of this Agreement or otherwise be liable to the other (save for Your obligations to pay the Charges pursuant to this Agreement), by reason of any delay in performance, or non-performance, if due to any Force Majeure which has been notified to the other party within forty-eight (48) hours of the onset of such Force Majeure.




• The obligations of both parties shall be suspended during any period of Force Majeure. If the Force Majeure in question continues to prevail for a period in excess of twenty (20) calendar days, the parties shall enter into bona fide discussions with a view of alleviating its effects, or to agreeing upon such alternative arrangements as may be fair and reasonable.




• If the Force Majeure in question prevails for a continuous period in excess of forty (40) days, then either party shall be entitled to terminate this Agreement forthwith without incurring any liability therefore to the other.

General

General

• [1] This Agreement is personal to You and You shall not assign, sub-licence or otherwise transfer this Agreement or any part of its rights or obligations hereunder whether in whole or in part save in accordance with this Agreement and with the prior written consent of Us and You shall not allow the Software to become the subject of any charge, lien or encumbrance of whatever nature. Nothing in this Agreement shall preclude Us from assigning the Software or our rights and obligations under this Agreement to a third party and You hereby consent to any such future assignment.




• If any provisions of the Agreement are held to be unenforceable, illegal or void in whole or in part, the remaining portions of the Agreement shall remain in full force and effect and both parties shall negotiate in good faith in such event or in the event of a change in any rule, regulation or law which has a material impact on the performance of the obligations of both parties out of this Agreement.




• This Agreement and all relationships created hereby and all disputes arising out of or in any way related to this Agreement will in all respects be governed by and construed in accordance with the laws of Ireland. The parties hereby submit to the exclusive jurisdiction of the Irish Courts.




• A waiver by either party to this Agreement of any breach by the other party of any of the terms of this Agreement or the acquiescence of such party in any act which but for such acquiescence would be a breach as aforesaid, will not operate as a waiver of any rights or the exercise thereof.




• Any notice required or permitted under this Agreement shall be sent in writing by registered post (or some equivalent service) to the address of the other party as set out in this Agreement (unless otherwise notified in writing by the other party). Any notice so given shall be deemed to have been received on the third day following the day it was posted.




• In this Agreement, the masculine gender shall include the feminine and neuter and the singular number shall include the plural and vice versa and words importing persons shall include firms, individuals or companies and the section headings shall not be considered as part of or affect the construction or interpretation of this Agreement.




• Amendments to or modifications of this Agreement may be made only by agreement of the Parties in writing and signed by the Parties’ authorised representatives.




• This Agreement represents the entire of the understanding of the Parties concerning the subject matter hereof and, overrides and supersedes all prior promises, representations, understandings, arrangements, agreements, concerning the same which are hereby revoked by mutual consent of the Parties.




• This Agreement shall become effective only upon the same being executed by or on behalf of all Parties hereto.




• The contents of the Proposal form part of this Agreement and shall have as full effect as if they were incorporated into the body of this Agreement. In the event of any conflict arising between the provisions of the clauses of the Agreement and any Section of the Proposal, the provisions of the clauses of this Agreement shall take precedence.