Last updated: 1st Feb 2023
Protex AI Limited a private company limited by shares registered in Ireland (registered number 691369) having its registered office at Nexus Innovation Centre, Sreelane, University of Limerick, Limerick, Co. Limerick (the “Company”) has developed “ProtexAI”, a software platform more particularly described below, which it makes available to its clients for the subscription fees set out in the Memorandum of Agreement. Note for Clause references please refer to the official GENERAL TERMS AND CONDITIONS OF SERVICE document which can be requested from firstname.lastname@example.org
The Client (whose details are set out in the Memorandum of Agreement) wishes to be granted access and to and agrees to use the Protex AI Platform and obtain other services from the Company relating to its use of the Protex AI Platform subject to these terms and conditions.
- The Company owns and has developed the Protex AI Platform that is a computer-vision based software platform which provides proactive safety technology to help companies in their mission to realise an injury free workplace, which uses existing CCTV infrastructure coupled with cutting edge deep-learning and cloud-based technologies to continuously and autonomously audit in real time the safety procedures of warehouses, factories and ports.
- The Client wishes to engage the Company to deploy the Protex AI Platform for use at its premises as set out in the Memorandum of Agreement and to engage with the Company to provide various development and support services relating to the Protex AI Platform.
- The Company has agreed with the Client to provide access to the Protex AI Platform and provide related services to the Client subject to the terms and conditions of this Agreement.
NOW IT IS AGREED as follows:
- DEFINITIONS AND INTERPRETATION
- In this Agreement unless the context otherwise requires the following terms have the following meanings:
“Acceptable Use Policy” the Company’s Acceptable Use Policy in respect of the Protex AI Platform as amended from time to time by the Company;
“Additional Services” shall have the meaning given to it under clause 6.1;
“Additional Fees” means the fees to be paid by the Client to the Company for each 12 month period of the Term in respect of any Support Services and/or Additional Services to be provided;
“Agreement” means these general terms and conditions of service, the Memorandum of Agreement and any amendments, addenda, exhibits, schedules, appendices, specifications or other documents, incorporated by reference or attached hereto;
“Annual Licence Fee” means the fee to be paid by the Client to the Company for each 12 month period of the Term in respect of Services and the Hardware during the Initial Licence Term and each Renewal Period as described in the Memorandum of Agreement and in accordance with clause 10;
“Business Day” means any day (excluding Saturdays and Sundays) on which clearing banks are generally open for business in Ireland;
“Change Request” means a request to make a minor change to the Software made by the Client to the Company;
“Confidential Information” means, in relation to either party, information (whether in oral, written or electronic form) belonging or relating to that party, its business affairs or activities which is not in the public domain and which: (i) either party has marked as confidential or proprietary; (ii) either party, orally or in writing, has advised the other party of the confidential nature of the information; or (iii) due to its character or nature, a reasonable person in a like position to the recipient of such information under this Agreement and under like circumstances, would treat as confidential, including but not limited to any Client Data;
“Client Data” means the data inputted by the Client, Employees or the Company on the Client’s behalf as part of their use of the Protex AI Platform, including but not limited to any Video Data;
“Data Processing Agreement” means the data processing agreement made between the Company and the Client contained in Schedule 2 hereto;
“Data Protection Acts” means the Data Protection Acts 1988 to 2018, as amended, revised, modified or replaced from time to time;
“Data Protection Law” means all legislation and regulations relating to the protection of personal data including (without limitation) the Data Protection Acts (as amended, revised, modified or replaced from time to time), the GDPR and all other statutory instruments, industry guidelines (whether statutory or non-statutory) or codes of practice or guidance issued by the Data Protection Commissioner relating to the processing of personal data or privacy or any amendments and re-enactments thereof;
“Deployment Date” means the date on which the Protex AI Platform has been fully deployed on the Premises, as stated in the Deployment Notice;
“Deployment Notice” means the written notice provided by the Company to the Client confirming that the Deployment Services have been completed and that the Software is fully deployed and operational on the Premises;
“Deployment Fee” means the fee as set out in the Memorandum of Agreement to be paid by the Client to the Company for the Deployment Services during the Deployment Period;
“Deployment Period” means the period beginning on the Effective Date and ending on the Deployment Date, a timeline of which is set out in the Memorandum of Agreement;
“Deployment Services” means the deployment of the Hardware on the Premises and any software customisation, procuring, consulting and computer programming services required to customise and deploy the Software on the Premises during the Deployment Period;
“Effective Date” means the date of this Agreement;
“Employees” means those employees of the Client who are authorised by the Client to use the Software and the Materials;
“GDPR” means the General Data Protection Regulation ((EU) 2016/679);
“Hardware” means hardware, tools, equipment and other tangible property (including, but not limited to, mobile telephony, computers, personal digital assistance devices, monitoring devices, video cameras, data network components, diagnostic kits and machinery and engineer tools) and physical infrastructure owned by the Company and deployed on the Premises as part of the Services and as set out in the Memorandum of Agreement;
“Holding Company” means a holding company as defined in Section 8 of the Companies Act 2014;
“Initial Licence Term” means the initial term of this agreement being the period of 36 months on and from the Effective Date;
“Intellectual Property Rights” means all copyright, design rights (whether registered or unregistered), all rights in inventions (whether patentable or not), patent applications, patents, know how, trade marks, business names, domain names, databases, moral rights, trade secrets and all goodwill acquired in relation to same and all rights of an equivalent nature whether registered or registrable and which exist now or in the future anywhere in the world;
“Materials” means the documentation and information provided by the Company to the Client in connection with the Protex AI Platform and the Software;
“Material Change” means a variation of 10% or more to the overall scope, cost and/or amount of work required to be undertaken by the Company in providing the Deployment Services as set out in the Memorandum of Agreement as determined by the Company;
“Memorandum of Agreement” the document entitled ‘Memorandum of Agreement’ that has been executed by the Parties and which contains terms and conditions provided by the Company to the Client which provides a summary of the scope of estimated works to be carried out by the Company as part of the Services and on which the Deployment Fee has been based and also containing the agreed Initial Licence Term, among other relevant details;
“NDA” means the non-disclosure agreement previously made between the Company and the Client;
“Normal Business Hours” means 9.00 am to 5.00 pm local Irish time each Business Day;
“Renewal Period” the period described in clause 14.1;
“Plans” means all documents, plans, drawings, architectural documents, specifications, maps and other documentation that are provided by or on behalf of the Client to the Company in respect of the Premises;
“Premises” means the Client’s premises as set out in the Memorandum of Agreement;
“Protex AI Platform” means the Company’s proprietary software platform for real-time intelligent tracking and monitoring of workplace safety and provided by the Company to the Client via the internet under the terms of this Agreement;
“Year” means each successive period of twelve months during the term of this Agreement beginning on the Effective Date;
“Schematics” means all plans and specifications created, developed or produced by the Company in respect of the Premises based on the Company’s survey of the Premises or other information provided by the Client and such Schematics are used in the Software;
“Services” means the Deployment Services, Support Services and Additional Services (as applicable);
“Service Level Agreement” means the Company’s terms and conditions in respect of the provision of the Support Services contained in Schedule 1 hereto as may be amended from time to time by the Company;
“Software” means the software (including but not limited to the Protex AI Platform and any software relating to the Protex AI Platform) provided by the Company to the Client under the terms of this Agreement;
“Specified Devices” means the computers and/or devices of the Client, including operating systems, on which the Software is to function as directed by the Company to the Client;
“Subsidiary” means a subsidiary as defined in Section 7 of the Companies Act 2014;
“Support Services” means those services to be provided by the Company to the Client for providing support in connection with the maintenance and deployment of the Protex AI Platform and the Hardware at the Premises as set out in the Service Level Agreement;
“Term” has the meaning given in clause 14.1;
“Users” means the Employees and any other third parties who are authorised to use the Protex AI Platform;
“User Access” means the number of individual User access details and accounts granted to the Client which entitle Users to access and use the Protex AI Platform in accordance with this Agreement and the term “User Accesses” shall be construed accordingly; and
“Video Data” means any pictoral or videographic data, recordings, images and any other kind of recording or reproduction of still or moving visual images uploaded to or hosted on the Protex AI Platform.
- In this Agreement, unless the context otherwise requires:
- any reference to "persons" includes individuals, firms, partnerships, companies, corporations, associations, organisations, foundations and trusts (whether or not having separate legal personality);
- a "party" shall be construed as a party to this Agreement;
- use of the singular shall include the plural and vice versa and words denoting any gender shall include all genders;
- any reference to any statute, statutory provision, subordinate legislation, code or guideline ("legislation") shall be construed as referring to such legislation as the same may from time to time be amended, modified, extended, varied, superseded, replaced, substituted, re-enacted or consolidated (whether before or after the date of this Agreement) and all statutory instruments, regulations and orders from time to time made thereunder or deriving validity therefrom; and
- any phrase introduced by the terms "including", "include", "in particular" or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
- Clause headings are for ease of reference only and shall not affect the interpretation of this Agreement.
- DEPLOYMENT OF THE HARDWARE
- The Company shall:
- provide the Client with the Deployment Services for the purpose of deploying the Hardware, the Protex AI Platform and the Software on the Premises;
- set up, install and test the Hardware on the Premises;
- set up, install and test the Software on the Specified Devices;
- carry out any Additional Services as may be agreed between the parties from time to time.
- The representatives of the Company shall attend the Premises as required in order to carry out such reviews of the Hardware as are required to develop, test and review the deployment of the Hardware on the Premises.
- On the Deployment Date the Company shall send the Client the Deployment Notice. This date shall constitute the end of the Deployment Period.
- The Client shall be responsible for maintaining the Hardware in good condition (ordinary wear and tear excepted) while the Hardware is deployed on the Premises. The Client shall reimburse the Company on demand for all costs and expenses incurred by the Company for any damage to or loss of the Hardware whether due to accident, operation of the Hardware in contravention of the instructions of the Company or otherwise caused by the Client or any of its officers, employees, agents, contractors or sub-contractors.
- GRANT OF LICENCE
- Subject to compliance by the Client with the terms of this Agreement, the Company hereby grants to the Client a non-exclusive, non-transferable right to access and use the Protex AI Platform, the Software and the Materials during the Licence Term for the purposes of its operations at the Premises but not otherwise.
- The Client shall not, and the Client shall procure that each Employee shall not:
- except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties:
- and except to the extent expressly permitted under this Agreement, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Protex AI Platform, the Software and/or Materials (as applicable) in any form or media or by any means; or
- attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software or the Protex AI Platform; or
- access all or any part of the Protex AI Platform, the Software and/or Materials in order to build a product or service which competes with the Software, the Protex AI Platform and/or the Materials; or
- use the Protex AI Platform, the Software and/or Materials to provide services to third parties; or
- subject to clause 14.3, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Protex AI Platform, the Software and/or Materials available to any third party; or
- attempt to obtain, or assist third parties in obtaining, access to the Protex AI Platform, the Software and/or Materials, other than as provided under this clause 3.
- The Client shall use best endeavours to prevent any unauthorised access to, or use of, the Software and/or Materials and, in the event of any such unauthorised access or use shall promptly notify the Company.
- For the avoidance of doubt, the rights granted to the Client hereunder with respect to the Protex AI Platform, the Software and the Hardware are specific to the Client entity and the Premises.
- The Company shall solely be responsible for and have the ability to provide access to the Protex AI Platform to Users. The Client shall provide details of each User and the Company shall create a unique, non-transferrable User profile for each User to enable such User to access the Protex AI Platform.
- In relation to the Users, the Client undertakes to the Company that:
- the Users that it authorises to access and use the Protex AI Platform, the Services and the Documentation shall not exceed the number of User Accesses that the Company has authorised for the Client;
- it will not allow or suffer any User Access to be used by more than one individual User unless it has been reassigned in its entirety to another individual User and such reassignment has been approved by the Company, in which case the prior User shall no longer have any right to access or use the Protex AI Platform, the Services and/or Documentation;
- each User shall ensure that their password or relevant login or access details used for accessing the Services and Documentation shall be kept secure and confidential;
- it shall maintain a written, up to date list of current Authorised Users and provide such list to the Company within 2 Business Days of the Company's written request at any time or times;
- it shall permit the Company or the Company's designated auditor to audit the Services and access to the Protex AI Platform in order to establish the number of Users, relevant details and data relating to each User and User Access and the Client's data processing facilities to audit compliance with this Agreement. Each such audit may be conducted no more than once per quarter, at the Company's expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Client's normal conduct of business;
- if any of the audits referred to in clause 4.2.5 reveal that any password has been provided to any individual who is not an Authorised User, then without prejudice to the Company's other rights, the Client shall promptly disable such passwords and the Company shall not issue any new passwords to any such individual;
- if any of the audits referred to in clause 4.2.5 reveal that the Client has underpaid the Licence Fees to the Company, then without prejudice to the Company's other rights, the Client shall pay to the Company an amount equal to such underpayment as calculated in accordance with the prices set out in the Memorandum of Agreement.
- SUPPORT SERVICES
- The Company shall, during the Licence Term, provide the Support Services and make available the Materials to the Client on and subject to the terms of this Agreement and the SLA.
- The Company will provide the Client with such client support services during Normal Business Hours as stated in the Memorandum of Agreement and in accordance with the SLA in effect at the time that the Services are provided. The Company may amend the SLA in its sole and absolute discretion from time to time. The Client may purchase any additional Support Services separately at the Company's then current rates and subject to the Company’s written agreement.
- ADDITIONAL SERVICES AND ADDITIONAL HARDWARE
- Subject to clause 3.2, the Client may in addition to those services set out in clause 5 of this Agreement, from time to time during the Licence Term, request certain additional services to be provided by the Company in connection with the use of the Protex AI Platform, including but not limited to the addition of one or more Premises at which the Protex AI Platform and Hardware shall be deployed (the “Additional Services”) and/or any or additional Hardware and the Company may, in its absolute discretion, provide such Additional Services and/or additional Hardware as it deems fit and in accordance with the provisions of this Agreement, at a cost to be mutually agreed between the parties. Any such Additional Services and/or additional Hardware to be provided shall be evidenced in an updated and amended set of Memorandum of Agreement or recorded in an invoice provided by the Company to the Client.
- The Company may, at its sole discretion, deem any Change Request to constitute the provision of “Additional Services” if, in the reasonable opinion of the Company, the implementation of such Change Request would require a significant amount of time and/or resources of the Company to implement.
- THE COMPANY’S OBLIGATIONS
- The Company undertakes that:
- the Protex AI Platform, the Software and the Services will be provided substantially in accordance with this Agreement; and
- the Protex AI Platform and Software will work substantially as intended and as set out in the Materials.
- The undertakings at clause 7.1 shall not apply to the extent of any non-conformance which is caused by use of the Protex AI Platform or the Software contrary to the Materials, the Company's instructions, or modification or alteration of the Software or the Materials by any party other than the Company or the Company's duly authorised contractors or agents. If the Protex AI Platform and/or the Software does not conform with the foregoing undertakings, the Company will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Client with an alternative means of providing the Software or access to the Protex AI Platform (as applicable). Such correction or substitution constitutes the Client's sole and exclusive remedy for any breach of the undertakings set out in clause 6.1.
- Notwithstanding the foregoing, the Company:
- does not warrant that the User’s use of the Software will be uninterrupted or error-free; nor that the Software, the Protex AI Platform, Materials and/or the information obtained by the User through the Software will meet the Client's requirements;
- does not warrant the accuracy of any of the information and documentation contained in the Software or the Materials or provided through the Protex AI Platform. The Software, Materials and information provided on the Protex AI Platform have been provided for informational and educational purposes only and are not to be relied on by any User for any other purpose. Accordingly, the Software and the Materials should only be used to support and assist the User. It is not intended to override the personal or professional judgment of the User or be used in place of any Plans, policies or procedures of the Client regarding the Premises for any purpose. The User must utilise their own judgment in using the Protex AI Platform, the Software and Materials and the Company shall not be responsible or liable for any actions taken by the Client or a User based on any information provided via the Protex AI Platform;
- is not required to check or verify the accuracy, contents or validity of the Plans, Client Data and/or all other data and information provided to the Company in connection with the Software and the Services. Accordingly, the Company has no liability or responsibility howsoever arising directly or indirectly to the Client or any User in respect of the use of the Protex AI Platform, the Software and Materials;
- has no liability or responsibility howsoever arising directly or indirectly in respect of the Users’ use of the Protex AI Platform, the Software or Materials or any actions taken by such Users on foot of any information provided to such Users by the Software or in the Materials;
- has deployed the Protex AI Platform, the Software and the Hardware on the Premises for use by the Client as a data gathering and monitoring tool. Accordingly, the Company is not responsible for and has no liability or responsibility howsoever arising directly or indirectly in respect of any accidents or injuries that occur on the Premises to any third party, due to the Client’s use of the the Protex AI Platform, the Software and the Hardware on the Premises or otherwise, which shall remain the sole and absolute responsibility of the Client. The Client shall indemnify and keep indemnified the Company on demand 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 any third party claim brought against the Company in respect of any accident, death or injury at the Premises;
- is not responsible for and has no liability or responsibility howsoever arising directly or indirectly in respect of any access, use or dissemination of any Video Data caused by a User or other third party (other than an employee or contractor of the Company) which accesses such Video Data;
- 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 Protex AI Platform or the internet, and the Client acknowledges that the Protex AI Platform, the Software and Materials may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
- This Agreement shall not prevent the Company from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this Agreement.
- The Company warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this Agreement.
- CLIENT’S OBLIGATIONS
- The Client shall:
- provide the Company with:
- all necessary co-operation in relation to this Agreement, including access to the Premises as required by the Company for the creation of the Schematics and development and testing of the Software; and
- all necessary access to such information as may be required by the Company in order to develop the Software and provide the Services, including but not limited to Client Data, security access information and configuration services.
- comply with all applicable laws and regulations with respect to its activities under this Agreement including all relevant Data Protection Laws;
- carry out all other Client responsibilities set out in this Agreement in a timely and efficient manner. In the event of any delays in the Client's provision of such assistance as agreed by the parties, the Company may adjust any agreed timetable or delivery schedule as reasonably necessary;
- obtain and shall maintain all necessary licences, consents, and permissions necessary for the Company, its contractors and agents to perform their obligations under this Agreement, including without limitation the Services;
- ensure that the Users use the Software and the Materials in accordance with the terms and conditions of this Agreement and shall be responsible for any User’s breach of this Agreement;
- ensure that its network and systems comply with the relevant specifications provided by the Company from time to time;
- be solely responsible for verifying the accuracy and validity of the Client Data and all other documentation and information provided and uploaded to the Protex AI Platform;
- procure that any Users or other third parties do not record, store, transmit, copy or otherwise obtain or disseminate any Video Data and being solely responsible for any such breach of this clause 8.1.8 by any such User;
- be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to the internet and the Protex AI Platform, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Client's network connections or telecommunications links or caused by the internet.
- INTELLECTUAL PROPERTY RIGHTS
- The Intellectual Property Rights in the Client Data are and shall remain the property of the Client. The Client hereby grants to the Company an irrevocable, perpetual, non-exclusive, worldwide, royalty-free licence (with the ability to sub-licence to any Subsidiary, Holding Company or Subsidiary of a Holding Company of the Company) to use anonymised Client Data for information and reference purposes in its business and for use in improvements to the Protex AI Platform.
- The Client acknowledges that all Intellectual Property Rights in the Protex AI Platform, the Software and the Materials belong to and shall remain vested in the Company. The Company reserves the right to grant permissions and licences to use the Protex AI Platform, the Software and/or the Materials to third parties.
- The Client shall notify the Company immediately if the Client becomes aware of any unauthorised use of the whole or any part of the Protex AI Platform, the Software and/or the Materials by any person.
- The Client shall not remove any of the Company’s notices of copyright or other Intellectual Property Rights contained in the Protex AI Platform, the Software and/or the Materials.
- The Client shall pay the Deployment Fee to the Company on the Effective Date.
- In circumstances where there is a Material Change to the Deployment Services as set out in the Memorandum of Agreement, then the parties agree that the Company may at any time review and amend the Deployment Fee as is reasonably necessary in order to reflect such increase or decrease in cost and/or work in providing the Deployment Services. The Company shall notify the Client in writing immediately of any such amendment to the Deployment Fee.
- The Annual Licence Fee for each 12 month period during the Initial Licence Term together with any applicable fees in respect of the Support Services or any Additional Services shall be as set out in the Memorandum of Agreement.
- Subject to clause 14.1, the Client shall pay the first Annual Licence Fee to the Company on the Effective Date or otherwise in accordance with the payment timeframes as set out in the Memorandum of Agreement.
- The Annual Licence Fee payable in respect of each Renewal Period shall be the Annual Licence Fee set out under clause 10.3, unless otherwise specified by the Company pursuant to clause 10.9. The Client shall pay the Annual Licence Fee payable in respect each Renewal Period on the first Business Day following each annual recurrence of the Effective Date.
- The Client shall on the Effective Date provide to the Company valid, up-to-date, complete and approved purchase order information acceptable to the Company and any other relevant valid, up-to-date and complete contact and billing details and, if the Client provides:
- its invoicing details to the Company, the Client hereby authorises the Company to bill such on the Effective Date and on each payment date as set out in the Memorandum of Agreement:
- its approved purchase order information to the Company, the Company shall invoice the Client:
- on the Effective Date for the Deployment Fee and the Annual Licence Fee payable in respect of the first 12 month period of the Initial Licence Term as stated in the Memorandum of Agreement; and
- subject to clause 14.1, at least 30 days prior to each anniversary of the Effective Date for the Annual Licence Fee payable in respect of the next Renewal Period,
and the Client shall pay each invoice within 30 days after the date of such invoice.
- If the Company has not received payment within 30 days after the due date, and without prejudice to any other rights and remedies of the Company:
- the Company may, without liability to the Client, disable the User Licences and the Client’s and each Authorised User’s password, account and access to all or part of the Services and the Company shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
- interest shall accrue on such due amounts at monthly rate equal to 1.5% over the then current base lending rate of the Company’s bankers in the Ireland at the date the relevant invoice was issued, commencing on the due date and continuing until fully paid, whether before or after judgment.
- All amounts and fees stated or referred to in this Agreement:
- shall be payable in euro;
- are exclusive of value added tax and, accordingly, are to be construed as a reference to that amount plus any value added tax payable in respect of such amounts or fees;
- shall not be reduced by any right of set off or counterclaim, recoupment, defence or other right which the Client may have, whether in connection with this Agreement, or otherwise; and
- shall be free of all withholdings of whatsoever nature except to the extent otherwise required by law, and if any withholding is so required the Client shall pay to the Company an additional amount such that after deduction of all amounts required to be withheld, the net amount actually received by the Company shall equal the amount which the Company would have received if the relevant withholding had not been required.
- are, subject to clause 13.4.2, non-cancellable and non-refundable.
- The Company shall be entitled to increase the Annual Licence Fee at the start of each Renewal Period upon 90 days' prior notice to the Client and the Annual Licence Fee shall be deemed to have been amended accordingly.
- Each party agrees to and shall maintain the confidentiality of the other party’s Confidential Information and shall not, without the prior written consent of the other, use, disclose, copy or modify the other party’s Confidential Information (or permit others to do so) other than as is necessary for the performance of its rights and obligations under this Agreement.
- Each party is permitted to disclose the other party’s Confidential Information only to those of its officers, employees and agents to whom, and to the extent to which such disclosure is necessary for the purposes contemplated under this Agreement provided always that it shall procure that each such person is made aware of and maintains the confidentiality of the other party’s Confidential Information. In respect of the Client, the Client shall be solely responsible for procuring that each User and each employee of the Client keeps all Confidential Information secure.
- Each party shall give notice to the other of any authorised misuse, disclosure, theft or loss of the other party’s Confidential Information immediately upon becoming aware of the same.
- The provisions of this clause 11 shall not apply to information which:
- is in or comes into the public domain through no fault of the recipient, its officers, employees or agents;
- is lawfully received from a third party free of any obligation of confidence at the time of its disclosure;
- is independently developed by the recipient, its officers, employees or agents;
- is required by law, by court or governmental order to be disclosed provided that, to the extent permitted by law, prior to any disclosure, the recipient notifies the disclosing party and, at the disclosing party’s request and cost, assists the disclosing party in opposing any such disclosure.
- Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
- The Client acknowledges that details of the Services, and the results of any performance tests of the Services and the documentation constitute the Company's Confidential Information.
- This clause 11 shall survive termination of this Agreement, however arising.
- The Client shall indemnify and keep indemnified the Company on demand 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 Client's use of the Software, provided that:
- the Client is given prompt notice of any such claim;
- the Company provides reasonable co-operation to the Client in the defence and settlement of such claim, at the Client’s expense; and
- the Client is given sole authority to defend or settle the claim.
- The Company shall, subject to clause 11.5, defend the Client, its officers, directors and employees against any claim that the normal operation and use of the Software by the Client in accordance with the provisions of this Agreement infringes any European patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Client for any amounts awarded against the Client in judgment or settlement of such claims, provided that:
- the Company is given prompt notice of any such claim;
- the Client provides reasonable co – operation to the Company in the defence and settlement of such claim, at the Company’s expense; and
- the Company is given sole authority to defend or settle the claim.
- In the defence or settlement of any claim, the Company may procure the right for the Client to continue using the Software, replace or modify the Software so that it becomes non-infringing or, if such remedies are not reasonably available, terminate this Agreement on 2 Business Days’ notice to the Client without any additional liability or obligation to pay liquidated damages or other additional costs to the Client.
- In no event shall the Company, its employees, agents and sub-contractors be liable to the Client to the extent that the alleged infringement is based on:
- a modification of the Software by anyone other than the Company;
- the Client’s use of the Services, Software or Materials in a manner contrary to the instructions given to the Client by the Company; or
- the Client’s use of the Services, Software or Materials after notice of the alleged or actual infringement from the Company or any appropriate authority.
- The foregoing states that the Client's sole and exclusive rights and remedies, and the Company's (including the Company’s employees', agents' and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
- LIMITATION OF LIABILITY
- This clause 13 prevails over all other clauses and sets forth the entire liability of the Company and (together with clause 12) the sole and exclusive remedies of the Client in respect of:
- the performance, non-performance, the purported performance or delay in performance of this Agreement;
- any breach of this Agreement;
- any use made by the Client of the Software or any part thereof;
- any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Agreement; or
- otherwise in relation to this Agreement or the entering into or performance of this Agreement.
- The Company does not purport to limit or exclude any liability which cannot be excluded or limited by applicable law.
- Except as expressly and specifically provided in this Agreement:
- each User assumes sole responsibility for results and information obtained from the use of the Protex AI Platform and Software by the User, and for conclusions drawn from such use. The Company shall have no liability for any damage caused by errors or omissions in the Client Data or in any information, instructions or scripts provided to the Company by the Client in connection with the Protex AI Platform, Software, or any actions taken by the Company at the Client's direction;
- all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement; and
- access to the Protex AI Platform and the Software are provided to the Client and the Users on an "as is" basis.
- Subject to the provisions of clause 12.2 and 12.3:
- the Company shall not be liable to the Client, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or for any special, indirect or consequential loss, loss of goodwill, loss of business, loss of anticipated savings, loss of goods, loss of use, any destruction or corruption of data, or special damage, costs or expenses arising under or in connection with this Agreement; and
- the Company’s total liability to the Client in respect of all losses arising under or in connection with this Agreement and whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall not exceed the aggregate of the Annual Licence Fee paid by the Client to the Company in the twelve month period immediately preceding the date that the liability arises.
- TERM AND TERMINATION
- This Agreement shall, unless otherwise terminated as provided in this clause 14, commence on the Effective Date and shall continue for the Initial Licence Term and, thereafter, this Agreement shall be automatically renewed for successive periods of 36 months (each a “Renewal Period”), unless:
- either party notifies the other party of termination, in writing, at least 30 days before the end of the Initial Licence Term or any Renewal Period, in which case this agreement shall terminate upon the expiry of the applicable Initial Licence Term or Renewal Period; or
- it is otherwise terminated in accordance with the provisions of this Agreement;
and the Initial Licence Term together with any subsequent Renewal Periods shall constitute the “Term”.
- Either party (the "Non-Defaulting Party") may terminate this Agreement (without prejudice to its other rights and remedies) with immediate effect by written notice to the other party (the "Defaulting Party") if:
- the Defaulting Party fails to make any payment due by it under clause 10 or otherwise commits a material breach of any of the provisions of this Agreement and (if such a breach is remediable) fails to remedy that breach within 14 days of the Defaulting Party being notified in writing of the breach; or
- an order is made or resolution is passed for the winding up of the Defaulting Party, or circumstances arise which entitle a court of competent jurisdiction to make a winding up order in relation to the Defaulting Party; or
- the Defaulting Party enters into liquidation (whether compulsory or voluntary) or the Defaulting Party is unable to pay its debts or becomes or is deemed insolvent or has any examiner, receiver, administrator, administrative receiver or similar officer appointed in respect of the whole or any part of its assets or business; or
- the Defaulting Party makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for protection from its creditors in any way; or
- the Defaulting Party ceases, or threatens to cease, to carry on its business; or
- the Defaulting Party suffers or there occurs in relation to the Defaulting Party any event which is analogous to the events set out in clauses 14.2.2 to 14.2.5.
- Termination of this Agreement shall not prejudice either party from pursuing any other remedies available to it, including injunctive relief, nor shall such termination relieve the Client of its obligation to pay any fees that have accrued prior to such termination.
- If, at any time during the Term the Client terminates this Agreement for any reason other than by reason of the Company being a Defaulting Party under clause 14.2, then, without prejudice to the Company’s other rights and remedies in this regard, the Client shall be liable to pay the Company on demand an amount equal to the total Annual Licence Fees in respect of the remainder of the Term.
- On the expiration of this Agreement or the termination of this Agreement for any reason:
- all licences granted under this Agreement shall immediately terminate;
- the Client make no further use of the Hardware and shall be responsible for returning the Hardware to the Company or permitting the Company to enter the Premises to retrieve the Hardware in accordance with clause 14.5.4. If the Hardware is broken or damaged (other than normal wear and tear or mechanical fault) the Client shall pay for the cost of repairing and replacing such Hardware as the Company may at its reasonable opinion determine;
- the Client shall make no further use of the Software and any Materials and documentation and other items (and all copies of them) belonging to the Company;
- the Client shall permit the Company to enter the Premises and remove the Hardware and ensure that the Software has been removed from the Specified Devices; and
- the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced.
- The provisions of clauses 9, 10, 11, 12, 13, 14 and 15 shall survive the termination or expiry of this Agreement.
- Force Majeure: The Company shall have no liability to the Client 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 circumstances beyond its reasonable control.
- Entire Agreement: This Agreement constitutes the entire agreement and understanding of the parties and supersedes any previous agreement between the parties relating to the subject matter of this Agreement. Each of the parties acknowledges and agrees that in entering into this Agreement it does not rely on, and shall have no remedy in respect of, any statement, representation, warranty, understanding, promise or assurance (whether negligently or innocently made) of any person (whether party to this Agreement or not) other than as expressly set out in this Agreement as a warranty. Nothing in this clause shall operate to limit or exclude any liability for fraud.
- Assignment: The Client has no right to sub-license or to assign the benefit or burden of this Agreement in whole or in part without the prior written consent of the Company.
- Data Protection: Each Party shall comply with the provisions of the Data Protection Laws insofar as such Laws relate to its obligations hereunder and shall process any data in accordance with the Data Processing Agreement.
- Notices: Any notices or other communication required or permitted to be given under this Agreement shall be in writing and shall be delivered or transmitted to the intended recipient’s address as specified above or to such other address as either party may notify to the other from time to time in accordance with this sub-clause. Any notice shall be treated as having been served on delivery if delivered by hand and two Business Days after posting if sent by prepaid post.
- Modification: No addition to, or modification of, any provision of this Agreement shall be binding on the parties unless made by a written instrument and signed by a duly authorised representative of each of the parties.
- Waiver: The failure to exercise or delay in exercising a right or remedy under this Agreement shall not constitute a waiver of the right or remedy or a waiver of any other rights or remedies and no single or partial exercise of any right or remedy under this Agreement shall prevent any further exercise of the right or remedy or the exercise of any other right or remedy. The rights and remedies contained in this Agreement are cumulative and not exclusive of any rights or remedies provided by law.
- Severability: If any provision of this Agreement is judged to be invalid, illegal or unenforceable, this shall not affect or impact the continuation in full force and effect of the remainder of the provisions.
- No Partnership or Agency: Nothing in this Agreement shall be construed as creating a partnership or joint venture of any kind between the parties or as constituting either party as the agent of the other party for any purpose whatsoever and neither party shall have the authority or power to bind the other party or to contract in the name of or create a liability against the other party in any way or for any purpose.
- Counterparts: This Agreement may be executed in any number of counterparts each of which when executed and delivered shall be an original but all the counterparts together shall constitute one and the same instrument.
- Third Party Rights: No term of this Agreement is intended to confer a benefit on, or to be enforceable by, any person who is not a party to this Agreement.
- Governing Law and Jurisdiction: This Agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of Ireland. The parties agree that the courts of Ireland shall have non-exclusive jurisdiction in any such dispute or claim.