The following definitions and rules of interpretation apply in this agreement.
Additional Services: the services as set out in [Services] as updated from time to time by Trojan, being additional to the Services.
Additional Services Order: an order for Additional Services in the form of the Contract Cover Page, agreed in accordance with clause 3, describing the Additional Services to be provided by Trojan and the related matters listed in the Contract Cover Page.
Additional Services Charges: the sums payable for the Additional Services as set out in the Additional Services Order.
Business Day: a day, other than a Saturday, Sunday or public holiday in Ireland, when banks in London are open for business.
Business Hours: the period from 9.00 am to 5.00 pm on any Business Day.
Change Order: has the meaning given in clause 1.
Charges: the sums payable for the Services or the Additional Services, as set out in the Services Order Schedule, and/or the sums payable for Goods, as set out in the Goods Order Schedule.
Contract Cover Page: the cover page containing details of the Customer and the Services or Goods and including the Services Order Schedule and/or the Goods Order Schedule.
Controller, processor, data subject, personal data, personal data breach, processing and appropriate technical measures: as defined in the Data Protection Legislation.
Customer’s Equipment: any equipment, including tools, systems, cabling or facilities, provided by the Customer, its agents, subcontractors or consultants which is used directly or indirectly in the supply of the Services or the Additional Services.
Customer Materials: all documents, information, items and materials in any form, whether owned by the Customer or a third party, which are provided by the Customer to Trojan in connection with the Services or the Additional Services, including the items provided pursuant to clause 1(d).
Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in Ireland including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018 and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications).
Deliverables: any output of the Services or Additional Services to be provided by Trojan to the Customer and any other documents, products and materials provided by Trojan to the Customer in relation to the Services or the Additional Services.
Ecko-specific Customer Obligations: those obligations and other additional contractual terms on the parties that are relevant to Services, the Additional Services and/or Deliverables which include products or services licensed to Trojan from Ecko Cloud Limited as appended to this agreement as amended from time to time by Trojan in order to comply with its licence with the licensor.
End User Licence Agreement (or EULA): any end user licence agreement to be entered into between the Customer and any licensor of Trojan in order for Trojan to provide the Services, the Additional Services and/or the Deliverables which include products or services licensed by the licensor to Trojan, including any of those EULAs at [hyperlink] or the Ecko-specific Customer Obligations appended to this agreement, all as amended from time to time by the relevant licensor.
Goods: any goods agreed to be sold by Trojan to the Customer pursuant to a Goods Order.
Goods Order: an order for Goods in the form of the Contract Cover Page, agreed in accordance with clause 3, describing the Goods to be provided by Trojan and the related matters listed in the Contract Cover Page.
Intellectual Property Rights: patents, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, goodwill and the right to sue for passing off, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Reference Charges: the standard charges for the Additional Services.
Services: the services as set out in the Services Order Schedule.
Supplier’s Equipment: any equipment, including tools, systems, cabling or facilities, provided by Trojan to the Customer and used directly or indirectly in the supply of the Services or the Additional Services but excluding any such items which are the subject of a separate agreement between the parties under which title passes to the Customer.
VAT: value added tax or any equivalent tax chargeable in the Ireland or elsewhere.
1.2 Clause, Schedule and paragraph headings shall not affect the interpretation of this agreement.
1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.4 The Schedules form part of this agreement and shall have effect as if set out in full in the body of this agreement. Any reference to this agreement includes the Schedules.
1.5 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.6 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.7 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.8 This agreement shall be binding on, and enure to the benefit of, the parties to this agreement and their respective personal representatives, successors and permitted assigns, and references to any party shall include that party’s personal representatives, successors and permitted assigns.
1.9 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
1.10 A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.
1.11 A reference to writing or written includes fax and email.
1.12 Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
1.13 A reference to this agreement or to any other agreement or document referred to in this agreement is a reference of this agreement or such other agreement or document, in each case as varied from time to time.
1.14 References to clauses and Schedules are to the clauses and Schedules of this agreement and references to paragraphs are to paragraphs of the relevant Schedule.
1.15 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
2. Application of conditions
2.1 These conditions shall:
(a) apply to and be incorporated in the contract between Trojan and the Customer; and
(b) prevail over any inconsistent terms or conditions contained in, or referred to in, the Customer’s purchase order, confirmation of order, or specification, or implied by law, trade custom, practice or course of dealing.
2.2 No addition to, variation of, exclusion or attempted exclusion of any term of this agreement shall be binding on Trojan unless in writing and signed by a duly authorised representative of Trojan.
3. Effect of Customer’s purchase order (if any)
3.1 A Customer’s purchase order constitutes an offer by the Customer to purchase the Services or Goods specified in it on these conditions. Accordingly, the execution of the Contract Cover Page, or Trojan’s commencement or execution of Services, or the execution of an Additional Services Order or a Goods Order shall establish a contract for the supply and purchase of those Services or Goods on these conditions. The Customer’s standard terms and conditions (if any) attached to, enclosed with, or referred to in, any Customer purchase order shall not govern the contract between Trojan and the Customer.
4.1 This agreement shall be deemed to have commenced on the date on which Trojan commenced providing Services to the Customer and shall continue, unless terminated earlier in accordance with clause 17 (Termination), until the fifth anniversary of the commencement of this agreement when it shall terminate automatically without notice unless renewed by the parties with renewed pricing.
4.2 Trojan shall provide the Services to the Customer in accordance with this agreement.
4.3 The Customer may procure any of the Additional Services by agreeing an Additional Services Order pursuant to clause 5.
4.4 The Customer may procure Goods by agreeing a Goods Order pursuant to clause 6.
5. Additional Services
5.1 Each Additional Services Order shall be agreed in the following manner:
(a)the Customer shall ask Trojan to provide any or all of the Additional Services and provide Trojan with as much information as Trojan reasonably requests in order to prepare a draft Additional Services Order for the Additional Services requested;
(b)following receipt of the information requested from the Customer Trojan shall, as soon as reasonably practicable either:
(i) inform the Customer that it declines to provide the requested Additional Services; or
(ii) provide the Customer with a draft Additional Services Order.
(c) if Trojan provides the Customer with a draft Additional Services Order pursuant to clause 1(b)(ii), Trojan and the Customer shall discuss and agree that draft Additional Services Order; and
(d) both parties shall sign the draft Additional Services Order when it is agreed.
5.2 Unless otherwise agreed, the Additional Services Charges shall be calculated in accordance with the Reference Charges.
5.3 Once an Additional Services Order has been agreed and signed in accordance with clause 1(d), no amendment shall be made to it except in accordance with clause 10 (Change control) or clause 21 (Variation).
5.4 Each Additional Services Order shall be part of this agreement and shall not form a separate contract to it.
6.1 Each Goods Order shall be agreed in the following manner:
(a) Trojan shall provides the Customer with a draft Goods Order, and Trojan and the Customer shall discuss and agree that draft Goods Order; and
(b) both parties shall sign the draft Goods Order when it is agreed.
6.2 Once a Goods Order has been agreed and signed, no amendment shall be made to it except in accordance with clause 10 (Change control) or clause 21 (Variation).
6.3 Each Goods Order shall be part of this agreement and shall not form a separate contract to it.
7. Supplier’s responsibilities
7.1 Trojan shall use reasonable endeavours to supply the Services, the Additional Services and the Goods, and deliver the Deliverables (if relevant) to the Customer, in accordance with this agreement in all material respects.
7.2 Trojan shall use reasonable endeavours to meet any performance dates but any such dates shall be estimates only and time for performance by Trojan shall not be of the essence of this agreement.
7.3 Trojan shall appoint a manager for the Services. That person shall have authority to contractually bind Trojan on all matters relating to this agreement (including by signing Change Orders). Trojan may replace that person from time to time where reasonably necessary in the interests of Trojan’s business.
7.4 Trojan shall use reasonable endeavours to observe all health and safety and security requirements that apply at any of the Customer’s premises and that have been communicated to it under clause 1(e) provided that it shall not be liable under this agreement if, as a result of such observation, it is in breach of any of its obligations under this agreement.
7.5 Trojan makes no representations, warranties, guarantees or other commitments with respect to the specifications, features or capabilities of Services, the Additional Services, the Goods and/or Deliverables re-sold by Trojan that are inconsistent with the representations, warranties, guarantees or other commitments made by the producer of such Services, Additional Services, Goods and/or Deliverables or which are inconsistent with the relevant EULA or any Ecko-specific Customer Obligations.
8.1 The Customer shall:
(a) co-operate with Trojan in all matters relating to the Services or the Additional Services;
(b) appoint a manager for the Services. That person shall have the authority to contractually bind the Customer on matters relating to this agreement (including by signing Change Orders);
(c) provide, for Trojan, its agents, subcontractors, consultants and employees, in a timely manner and at no charge, access to the Customer’s premises, office accommodation, data and other facilities as required by Trojan;
(d) provide to Trojan in a timely manner all documents, information, items and materials in any form (whether owned by the Customer or third party) reasonably required by Trojan in connection with the Services or the Additional Services and ensure that they are accurate and complete;
(e) inform Trojan of all health and safety and security requirements that apply at any of the Customer’s premises;
(f) ensure that all the Customer’s Equipment is in good working order and suitable for the purposes for which it is used and conforms to all relevant European Union standards or requirements;
(g) obtain and maintain all necessary licences and consents and comply with all relevant legislation as required to enable Trojan to provide the Services, the Additional Services or the Goods, including (if relevant) in relation to the installation of Trojan’s Equipment, the use of all Customer Materials and the use of the Customer’s Equipment insofar as such licences, consents and legislation relate to the Customer’s business, premises, staff and equipment, in all cases before the date on which the Services or the Additional Services are to start;
(h) keep, maintain Trojan’s Equipment in accordance with Trojan’s instructions from time to time and shall not dispose of or use Trojan’s Equipment other than in accordance with Trojan’s written instructions or authorisation;
(i) enter into and comply with any relevant EULA or Ecko-specific Customer Obligations;
(j) allow, for the purpose of auditing compliance with this agreement, Trojan or any relevant licensor, on reasonable notice, access to, and (physical and remote electronic) inspection of, all accounts and records relating to the Services, the Additional Services and/or Deliverables and all facilities of the Customer in which the Customer performs its obligations under this agreement (including the Customer’s data processing facilities) and allow Trojan or any relevant licensor to meet with the Customer’s personnel whom the Customer will procure to provide all explanations reasonably necessary to perform the audit effectively; or
(k) not modify, dissemble, decrypt or decompile any software forming part of the Services, the Additional Services and/or Deliverables without the written consent of Trojan.
8.2 If Trojan’s performance of its obligations under this agreement is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants or employees, then, without prejudice to any other right or remedy it may have, Trojan shall be allowed an extension of time to perform its obligations equal to the delay caused by the Customer.
The Customer shall not, without the prior written consent of Trojan, at any time from the date of this agreement to the expiry of 12 months after the termination or expiry of this agreement, solicit or entice away from Trojan or employ or attempt to employ any person who is, or has been, engaged as an employee, consultant or subcontractor of Trojan in the provision of the Services or the Additional Services.
10. Change control / bolt-ons
10.1 Either party may propose additions to or changes to the scope or execution of the Services or the Additional Services (after an Additional Services Order has been entered into) but no proposed changes shall come into effect until a Change Order has been signed by both parties. A Change Order shall be a document setting out the proposed changes and the effect that those changes will have on:
(a) the Services or the Additional Services;
(b) Trojan’s existing charges;
(c) the timetable of the Services or the Additional Services; and
(d) any of the terms of this agreement.
10.2 If Trojan wishes to make a change to the Services or the Additional Services it shall provide a draft Change Order to the Customer.
10.3 If the Customer wishes to make a change to the Services or the Additional Services:
(a) it shall notify Trojan and provide as much detail as Trojan reasonably requires of the proposed changes, including the timing of the proposed changes; and
(b) Trojan shall, as soon as reasonably practicable after receiving the information at clause 3(a), provide a draft Change Order to the Customer.
10.4 If the parties:
(a) agree to a Change Order, they shall sign it and that Change Order shall amend this agreement; or
(b) are unable to agree a Change Order, either party may require the disagreement to be dealt with in accordance with the dispute resolution procedure in clause 29 (Multi-tiered dispute resolution procedure).
11. Charges and payment
11.1 In consideration of the provision of the Services, the Additional Services or Goods by Trojan, the Customer shall pay the Charges.
11.2 Unless otherwise agreed by the parties in writing, the Charges exclude the cost of hotel, subsistence, travelling and any other ancillary expenses reasonably incurred by the individuals whom Trojan engages in connection with the Services, the Additional Services or the installation or delivery of the Goods, which shall be payable by the Customer monthly in arrears, following submission of an appropriate invoice.
11.3 Trojan shall invoice the Customer for the Charges at the intervals specified in the Services Order Schedule or the Goods Order Schedule, as relevant. If no intervals are so specified Trojan shall invoice the Customer at the end of each month for Services or Additional Services performed during that month or for Goods supplied during that month.
11.4 The Customer shall pay each invoice submitted to it by Trojan within 30 days of receipt to a bank account nominated in writing by Trojan from time to time.
11.5 Without prejudice to any other right or remedy that it may have, if the Customer fails to pay Trojan any sum due under this agreement on the due date Trojan may suspend all or part of the Services or the Additional Services until payment has been made in full.
11.6 All sums payable to Trojan under this agreement:
(a) are exclusive of VAT, and the Customer shall in addition pay an amount equal to any VAT chargeable on those sums on delivery of a VAT invoice; and
(b) shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
12. Intellectual property rights
12.1 In relation to the Deliverables:
(a) Trojan and its licensors shall retain ownership of all Intellectual Property Rights in the Deliverables, excluding the Customer Materials;
(b) to the extent not inconsistent with any relevant EULA or Ecko-specific Customer Obligations, Trojan grants the Customer, or shall procure the direct grant to the Customer of, a fully paid-up, worldwide, non-exclusive, royalty-free licence during the term of this agreement to copy and modify the Deliverables (excluding the Customer Materials) for the purpose of receiving and using the Services or the Additional Services and the Deliverables in its business; and
(c) the Customer shall not sub-license, assign or otherwise transfer the rights granted in clause 1(b).
12.2 In relation to the Customer Materials, the Customer:
(a) and its licensors shall retain ownership of all Intellectual Property Rights in the Customer Materials; and
(b) to the extent not inconsistent with any relevant EULA or Ecko-specific Customer Obligations, grants Trojan a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify the Customer Materials for the term of this agreement for the purpose of providing the Services or the Additional Services to the Customer.
(a) warrants that the receipt, use and onward supply of the Services, the Additional Services, the Goods and the Deliverables by the Customer and its permitted sub-licensees shall not infringe the rights, including any Intellectual Property Rights, of any third party;
(b) shall, subject to clause 16 (Limitation of liability), indemnify the Customer in full 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 reasonable professional costs and expenses) suffered or incurred by the Customer arising out of or in connection with any claim brought against the Customer for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of, or in connection with, the receipt, use or supply of the Services, the Additional Services, the Goods and the Deliverables; and
(c) shall not be in breach of the warranty at clause 3(a), and the Customer shall have no claim under the indemnity at clause 12.3(b), to the extent the infringement arises from:
(i) the use of the Customer Materials in the development of, or the inclusion of the Customer Materials in any Deliverable;
(ii) any modification of the Deliverables, Services, Additional Services or Goods, other than by or on behalf of Trojan; and
(iii) compliance with the Customer’s specifications or instructions.
12.4 The Customer:
(a) warrants that the receipt and use of the Customer Materials in the performance of this agreement by Trojan, its agents, subcontractors or consultants shall not infringe the rights, including any Intellectual Property Rights, of any third party; and
(b) shall indemnify Trojan in full 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 reasonable professional costs and expenses) suffered or incurred by Trojan arising out of or in connection with any claim brought against Trojan, its agents, subcontractors or consultants for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of, or in connection with:
(i) the receipt or use in the performance of this agreement of the Customer Materials; or
(ii) the performance by Trojan of the Services or the Additional Services.
12.5 If either party (the Indemnifying Party) is required to indemnify the other party (the Indemnified Party) under this clause 12, the Indemnified Party shall:
(a) notify the Indemnifying Party in writing of any claim against it in respect of which it wishes to rely on the indemnity at clause 3(b) or clause 12.4(b) (as applicable) (IPRs Claim);
(b) allow the Indemnifying Party, at its own cost, to conduct all negotiations and proceedings and to settle the IPRs Claim, always provided that the Indemnifying Party shall obtain the Indemnified Party’s prior approval of any settlement terms, such approval not to be unreasonably withheld;
(c) provide the Indemnifying Party with such reasonable assistance regarding the IPRs Claim as is required by the Indemnifying Party, subject to reimbursement by Trojan of the Indemnified Party’s costs so incurred; and
(d) not, without prior consultation with the Indemnifying Party, make any admission relating to the IPRs Claim or attempt to settle it, provided that the Indemnifying Party considers and defends any IPRs Claim diligently, using competent counsel and in such a way as not to bring the reputation of the Indemnified Party into disrepute.
13. Security and passwords
13.1 Each party shall ensure that any data belonging to the other or its licensors or agents or contractors are kept secure and in an encrypted form, and shall use the best available security practices and systems applicable to the use of such data to:
(a) enforce the territorial and use restrictions of this agreement or the relevant EULA or Ecko-specific Customer Obligations; and
(b) prevent, and take prompt and proper remedial action against, unauthorised access, copying, modification, storage, reproduction, display or distribution of such data.
13.2 If a party (the Affected Party) becomes aware of any misuse of any such data, or any security breach in connection with this agreement that could compromise the security or integrity of such data or otherwise adversely affect the Affected Party or its licensors or if the other party learns or suspects that any security feature has been revealed to or obtained by any unauthorised person:
(a) the other party shall, at its expense, promptly notify the Affected Party and fully co-operate with the Affected Party to remedy the issue as soon as reasonably practicable; and
(b) the Affected Party may suspend the other party’s rights under this agreement until the misuse or security breach or unauthorised disclosure of the security feature is remedied.
13.3 The other party agrees to co-operate with the Affected Party’s and its licensors reasonable security investigations.
13.4 The provisions of this clause are additional to any similar provisions in any relevant EULA or Ecko-specific Customer Obligations. In the event of a conflict between the provisions of this clause and a relevant EULA or Ecko-specific Customer Obligations, the terms of the relevant EULA or Ecko-specific Customer Obligations shall prevail.
14.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 14 (Data protection) is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.
14.2 The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the controller and Trojan is the processor. The Services Order Schedule sets out the scope, nature and purpose of processing by Trojan, the duration of the processing and the types of personal data and categories of data subject.
14.3 Without prejudice to the generality of clause 1, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to Trojan for the duration and purposes of this agreement.
14.4 Without prejudice to the generality of clause 1, Trojan shall, in relation to any personal data processed in connection with the performance by Trojan of its obligations under this agreement:
(a) process that personal data only on the documented written instructions of the Customer unless Trojan is required by Data Protection Legislation to otherwise process that personal data;
(b) ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Customer, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
(c) ensure that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential; and
(d) not transfer any personal data outside of the European Economic Area unless the prior written consent of the Customer has been obtained and the following conditions are fulfilled:
(i) the Customer or Trojan has provided appropriate safeguards in relation to the transfer;
(ii) the data subject has enforceable rights and effective legal remedies;
(iii)Trojan complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and
(iv)Trojan complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the personal data;
(e) assist the Customer, at the Customer’s cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(f) notify the Customer without undue delay on becoming aware of a personal data breach;
(g) at the written direction of the Customer, delete or return personal data and copies thereof to the Customer on termination of the agreement unless required by Data Protection Legislation to store the personal data; and
(h)maintain complete and accurate records and information to demonstrate its compliance with this clause 14 (Data protection) and immediately inform the Customer if, in the opinion of Trojan, an instruction infringes the Data Protection Legislation.
14.5 Without prejudice to clause 20 (Assignment and other dealings), the Customer consents to Trojan appointing any third party processor nominated in the Services Order Schedule as a third party processor of Personal Data under this agreement. Trojan confirms that it has entered or (as the case may be) will enter with the third party processor into a written agreement substantially on that third party’s standard terms of business and in either case which Trojan confirms reflect and will continue to reflect the requirements of the Data Protection Legislation. As between the Customer and Trojan, Trojan shall remain fully liable for all acts or omissions of any third party processor appointed by it pursuant to this clause 14].
15.1 Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs, except as permitted by clause 2.
15.2 Each party may disclose the other party’s confidential information:
(a) to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with this agreement. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 15; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
15.3 No party shall use any other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this agreement.
16.1 Background to the limits and exclusions on Trojan’s liability. Trojan has obtained insurance cover in respect of its own legal liability for individual claims not exceeding €[AMOUNT] per claim. The limits and exclusions in this clause reflect the insurance cover Trojan has been able to arrange and the Customer is responsible for making its own arrangements for the insurance of any excess loss.
16.2 Scope of this clause. References to liability in this clause 16 include every kind of liability arising under or in connection with this agreement including but not limited to liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
16.3 No limitations in respect of deliberate default. Neither party may benefit from the limitations and exclusions set out in this clause in respect of any liability arising from its deliberate default.
16.4 No limitation of the Customer’s payment obligations. Nothing in this this clause 16 shall limit the Customer’s payment obligations under this agreement.
16.5 Liability under identified clauses. Nothing in this agreement shall limit the Customer’s liability under clause 4 (IPR indemnities).
16.6 Liabilities which cannot legally be limited. Nothing in this agreement limits any liability which cannot legally be limited.
16.7 Cap on Trojan’s liability. Subject to clause 3 (no limitations in respect of deliberate default) and clause 16.6 (liabilities which cannot legally be limited), Trojan’s total liability to the Customer shall be limited to the sums outlined in clause 14.1.
16.8 Specific heads of excluded loss. Subject to clause 3 (No limitations in respect of deliberate default), clause 16.4 (No limitation on the customer’s payment obligations), clause 16.5 (liability under identified clauses) and clause 16.6 (Liabilities which cannot legally be limited), this clause 16.8 specifies the types of losses that are excluded:
(a) loss of profits;
(b) loss of sales or business;
(c) loss of agreements or contracts;
(d) loss of anticipated savings;
(e) loss of use or corruption of software, data or information;
(f) loss of or damage to goodwill; and
(g) indirect or consequential loss.
16.9 Exclusion of statutory implied term. Trojan has given commitments as to compliance of the Services, the Additional Services and the Goods with relevant specifications in clause 7 (Supplier’s responsibilities). In view of these commitments, the terms implied by sections 13, 14 and 15 of the Sale of Goods Act 1893 as amended by the Sale of Goods and Supply of Services Act 1980 are, to the fullest extent permitted by law, excluded from this agreement.
17.1 Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if:
(a) 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 or is deemed unable to pay its debts;
(b) 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 any of its creditors other than (being a company) 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;
(c) the other party enters examinership;
(d) 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 (being a company) 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;
(e) an application is made to court, or an order is made, for the appointment of an administrator, or a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party;
(f) the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;
(g) a person becomes entitled to appoint a receiver over all or any of the assets of the other party or a receiver is appointed over all or any of the assets of the other party;
(h) 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 28 days;
(i) 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 1(a) to clause 14.1(i) (inclusive);
(j) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or
(k) the other party’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of this agreement is in jeopardy.
17.2 Without affecting any other right or remedy available to it, Trojan may terminate this agreement with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 30 days after being notified to make such payment.
18. Obligations on termination and survival
18.1 Obligations on termination or expiry
On termination or expiry of this agreement:
(a) the Customer shall immediately pay to Trojan all of Trojan’s outstanding unpaid invoices and interest and, in respect of the Services, Additional Services or Goods supplied but for which no invoice has been submitted, Trojan may submit an invoice, which shall be payable immediately on receipt; and
(b) the Customer shall return all of Trojan’s Equipment. If the Customer fails to do so, then Trojan may enter the Customer’s premises and take possession of Trojan’s Equipment. Until they have been returned or repossessed, the Customer shall be solely responsible for their safe keeping.
(a) On termination or expiry of this agreement, the following clauses shall continue in force: clause 1 (Interpretation), clause 9 (Non-solicitation), clause 12 (Intellectual property rights), clause 15 (Confidentiality), clause 16 (Limitation of liability), clause 18 (Consequences of termination), clause 22 (Waiver), clause 24 (Severance), clause 26 (Conflict), clause 29 (Multi-tiered dispute resolution procedure), clause 30 (Governing law) and clause 31 (Jurisdiction).
(b) Termination or expiry of this agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination or expiry.
19.1 Force Majeure Event means any circumstance not within a party’s reasonable control including, without limitation:
(a) acts of God, flood, drought, earthquake or other natural disaster;
(b) epidemic or pandemic;
(c) terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations;
(d) nuclear, chemical or biological contamination or sonic boom;
(e) any law or any action taken by a government or public authority, including imposing an export or import restriction, quota or prohibition;
(f) collapse of buildings, fire, explosion or accident;
(g) non-performance by suppliers or subcontractors (other than by companies in the same group as the party seeking to rely on this clause); and
(h) interruption or failure of utility service.
19.2 Provided it has complied with clause 4, if a party is prevented, hindered or delayed in or from performing any of its obligations under this agreement by a Force Majeure Event (Affected Party), the Affected Party shall not be in breach of this agreement or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.
19.3 The corresponding obligations of the other party will be suspended, and its time for performance of such obligations extended, to the same extent as those of the Affected Party.
19.4 The Affected Party shall:
(a) as soon as reasonably practicable after the start of the Force Majeure Event notify the other party of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of its obligations under the agreement; and
(b) use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.
19.5 If the Force Majeure Event prevents, hinders or delays the Affected Party’s performance of its obligations for a continuous period of more than 10 weeks, the party not affected by the Force Majeure Event may terminate this agreement by giving 12 weeks’ written notice to the Affected Party.
20. Assignment and other dealings
20.1 This agreement is personal to the Customer and the Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under this agreement.
20.2 Trojan may at any time assign, mortgage, charge, declare a trust over or deal in any other manner with any or all of its rights under this agreement, provided that Trojan gives prior written notice of such dealing to the Customer.
Subject to clause 10 (Change control), no variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
22.1 A waiver of any right or remedy under this agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
22.2 A failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under this agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.
The rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
24.1 If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement.
24.2 If any provision or part-provision of this agreement is deemed deleted under clause 1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
25.1 This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
25.2 Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation [or negligent misstatement] based on any statement in this agreement.
If there is an inconsistency between any of the provisions of this agreement and the provisions of the Schedules, the provisions of this agreement shall prevail.
27.1 Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
27.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
28.1 Any notice given to a party under or in connection with this agreement shall be in writing and shall be:
(a) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
(b) sent by email to the following addresses:
(i)Supplier: [ ]
(b) Customer: the address on the Contract Cover Page.
28.2 Any notice shall be deemed to have been received:
(a) if delivered by hand, at the time the notice is left at the proper address;
(b) if sent by pre-paid first-class post or other next working day delivery service, at 11.00 am on the second Business Day after posting; or
(C)if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 2(c), business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
28.3 This clause does not apply to the service of any proceedings or any documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
29. Multi-tiered dispute resolution procedure
29.1 If a dispute arises out of or in connection with this agreement or the performance, validity or enforceability of it (Dispute) then the parties shall follow the procedure set out in this clause:
(a) either party shall give to the other written notice of the Dispute, setting out its nature and full particulars (Dispute Notice), together with relevant supporting documents. On service of the Dispute Notice, the Managing Director of the Customer and Managing Director of Trojan shall attempt in good faith to resolve the Dispute; and
(b) if the Managing Director of the Customer and Managing Director of Trojan are for any reason unable to resolve the Dispute within 30 days of it being referred to them, the parties will attempt to settle it by mediation in accordance with the CEDR Model Mediation Procedure. Unless otherwise agreed between the parties, the mediator shall be nominated by CEDR. To initiate the mediation, a party must serve notice in writing (ADR notice) to the other party to the Dispute, requesting a mediation. A copy of the ADR notice should be sent to CEDR. The mediation will start not later than 14 days after the date of the ADR notice.
29.2 No party may commence any court proceedings under clause 31 (Jurisdiction) (in relation to the whole or part of the Dispute until 30 days after service of the ADR notice, provided that the right to issue proceedings is not prejudiced by a delay.
29.3 If the Dispute is not resolved within 30 days after service of the ADR notice, or either party fails to participate or to continue to participate in the mediation before the expiration of the said period of 30 days, or the mediation terminates before the expiration of the said period of 30 days, the Dispute shall be finally resolved by the courts of Ireland in accordance with clause 31 (Jurisdiction).
This agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of Ireland.
Each party irrevocably agrees that the courts of Ireland shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this agreement or its subject matter or formation.