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TERMS

Baily Labs Terms and Conditions

Effective: 
1st October 2019

THIS AGREEMENT is between

(1) BAILY LABS T/A ACN DIGITAL HOLDINGS LIMITED with company number 526761 whose registered office is at Suite 61, 20 Harcourt Street, Dublin, 2, Ireland (the “Supplier”); and

(2) [Your Company Legal Entity] with company number [Your Company Number] whose registered office is at [Your Company Registered Address] (the “Customer”)

(each a “Party” and together the “Parties”).

Background:

A. The Supplier has developed certain software applications and platforms which it makes available to subscribers via the internet on a subscription basis.

B. The Customer wishes to procure the Supplier's software solution for use in its business operations.

C. The Supplier has agreed to provide and the Customer has agreed to take and pay for the Supplier's service all in accordance with the Order Form and the Baily Labs Terms and Conditions.

1 DEFINITIONS AND INTERPRETATION

1.1 Definitions: In these Baily Labs Terms and Conditions and the Order Form the following terms shall have the following meanings:

Agreement - the Order Form and the Baily Labs Terms and Conditions;

Baily Labs Software - the software owned by the Supplier (and/or by its licensors) that is part of and/or used to provide the SaaS Service;

Baily Labs Terms and Conditions - these terms and conditions;

Business Day - a day (excluding Saturday and Sunday) on which clearing banks are generally open for business in Dublin, Ireland;

Customer Data - the data inputted by the Customer, Permitted Users, or the Supplier on the Customer’s behalf, for the purpose of using the Services or facilitating the Customer's use of the Services;

Confidential Information - the terms of the Agreement and any information that is not public knowledge and that is obtained from the other Party in the course of, or in connection with, the performance of Agreement including information relating to a Party's operations, processes, plans, product information, know-how, designs, trade secrets, market opportunities and customers. Without limiting or affecting the foregoing, the Supplier’s Confidential Information includes the Service IP; and the Customer’s Confidential Information includes the Customer Data;

Fees - the fees payable by the Customer to the Supplier for the Services as set out in the Order Form, but which may change from time to time during the Term in accordance with clause 6.5;

Force Majeure Event - an act, event, omission or accident beyond a Party's reasonable control, including any of the following: acts of God, including fire, flood, earthquake or other natural disaster; war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, breaking off of diplomatic relations or similar actions; terrorist attack, civil war, civil commotion or riots, sabotage; nuclear, chemical or biological contamination or sonic boom; compliance with any law; fire, explosion or accidental damage; loss at sea; adverse weather conditions including windstorm; collapse of building structures, failure of plant machinery, machinery, computers or vehicles; labour disputes, including strikes, industrial action or lockouts; and interruption or failure of utility services, including electric power, gas or water;

Initial Term - the period beginning on the Start Date and continuing for such period as is specified on the Order Form;

Intellectual Property Rights - any patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered 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;

Liabilities - includes all costs, claims, demands, damages, expenses, compensation, charges, settlements, penalties, losses, fines, awards and liabilities (including reasonable legal and professional fees and costs, together with VAT) whatever;

Normal Business Hours - between the hours 9am to 5pm in Ireland during Business Days;

Objectionable - includes being objectionable, defamatory, obscene, harassing, threatening, harmful, causing damage or injury to any person or property, or unlawful in any way;

Order Form - Customer's order for the Services as set out on the first page of this Agreement;

Payment Terms - the payment terms set out in the Order Form;

Permitted Users - those personnel of the Customer who are authorised by the Customer to access and use the SaaS Service on the Customer’s behalf, as set out in the Order Form and as may be amended from time to time during the Term in accordance with clause 4.3.2;

Related Service - any service (except the SaaS Service) and including support services provided by the Supplier to the Customer under this Agreement, as set out in the Order Form;

Renewal Period - each twelve (12) month successive period commencing on the expiry of the Initial Term;

SaaS Service - the subscription service provided by the Supplier to the Customer under this Agreement via the Website as more particularly described in the Order Form (and includes, as the context admits or requires any one, more or all of them or part of any of them);

Services - the SaaS Service and any Related Service (and includes, as the context admits or requires any one, more or all of them or part of any of them);

Service IP - has the meaning given in clause 7.1.1;

Start Date - the start date set out in the Order Form, unless otherwise agreed in writing by the Parties;

Term - the Initial term and any Renewal Period;

Underlying Systems - the Baily Labs Software, information technology solutions, systems and networks (including software and hardware) used by the Supplier to provide the Services, including any third party solutions, systems and networks (other than the Customer’s solutions, systems and networks);

VAT - value added tax as provided for in under applicable tax laws;

Virus - any thing or device (including any software, code, file or programme) which may prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices;

Website - the internet site at payremotely.io or such other website as notified to the Customer by the Supplier during the Term;

Year - a 12-month period starting on the Start Date or the anniversary of that date.

1.2 Interpretation: In the Agreement unless the context other requires:

1.2.1 clause and other headings are for ease of reference only and do not affect the interpretation of the Agreement;

1.2.2 words in the singular include the plural and vice versa;

1.2.3 any obligation accepted by a Party not to do something includes an obligation not to agree or allow that thing to be done;

1.2.4 a reference to:

(2.4.a) a person (including a Party) includes a natural person, corporate or unincorporated body (whether or not having separate legal personality), and includes a reference to that person's legal and personal representatives, successors and permitted assigns;
(2.4.b) personnel includes officers, employees, contractors and agents, but a reference to the Customer’s personnel does not include the Supplier;
(2.4.c) including and similar words do not imply any limit; and
(2.4.d) a statute includes references to regulations, orders or notices made under or in connection with the statute or regulations and all amendments, replacements or other changes to any of them.

1.2.5 If there is any conflict or inconsistency between a provision or part provision of the Order Form and the Baily Labs Terms and Conditions, the Order Form shall prevail in respect of such conflict or inconsistency.

2 LICENSE

2.1 Subject to the Customer paying the Fees in accordance with clause 6, the restrictions set out in clause 4 and the other terms and conditions of this Agreement, the Supplier hereby grants to the Customer a non-exclusive, non-transferable right, without the right to grant sub-licenses, to permit the Permitted Users to use the SaaS Service during the Term solely for the Customer’s internal business operations.

2.2 The rights provided under this clause 2 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer.

3 SERVICES

3.1 General: The Supplier shall use reasonable endeavours to supply the Services:

3.1.1 in accordance with the terms of the Agreement and the applicable laws of Ireland;

3.1.2 with reasonable care, skill and diligence; and  

3.1.3 using skilled, experienced and qualified personnel.  

3.2 Non-exclusive: The Supplier’s provision of the Services to the Customer is and shall be on a non-exclusive basis. Nothing in the Agreement prevents the Supplier from providing the Services or any other services to any other person.

3.3 Availability: The Supplier will use reasonable endeavours to make the SaaS Service available during Normal Business Hours, except for:

3.3.1 planned maintenance carried out during a maintenance window, provided the Supplier will use reasonable endeavours to give the Customer at least 24 Normal Business Hours notice in advance; and

3.3.2 unscheduled maintenance performed outside Normal Business Hours, provided the Supplier will use reasonable endeavours to give the Customer at least 6 Normal Business Hours notice in advance.

The Supplier is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges and agrees that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

3.4 Change to Services: The Supplier may, from time to time and without prior notice, change the Services in order to comply with any applicable regulatory or statutory requirements; and where practicable, it will give the Customer notice of any such change.

4 CUSTOMER OBLIGATIONS

4.1 General use: Without limiting or affecting clause 2.1, the Customer, its personnel and the Permitted Users must use the Services in accordance with the Agreement solely for the Customer’s own internal business purposes; and must not resell or make available the Services to any other person, or otherwise commercially exploit the Services.

4.2 Access conditions: When accessing the SaaS Service, the Customer, its personnel and Permitted Users must not:

4.2.1 impersonate another person or misrepresent authorisation to act on behalf of others or the Supplier;

4.2.2 attempt to undermine the security or integrity of the Underlying Systems;

4.2.3 access, store, distribute or transmit any Viruses, and shall not use, or misuse, the SaaS Service in any way which impairs or may impair the functionality of the Underlying Systems or impair the ability of any other user to use the SaaS Service;

4.2.4 attempt to view, access or copy any material or data other than: (a) the Customer Data; (b) information which the Customer is expressly authorised by the Supplier to access; and (c) to the extent necessary for the Customer and Permitted Users to use the SaaS Service in accordance with this Agreement;

4.2.5 except as may be permitted by mandatory law: (i) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the SaaS Service (as applicable) in any form or media or by any means; (ii) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the SaaS Service; (iii) access all or any part of the SaaS Service in order to build a product or service which competes with the SaaS Service (or any part thereof); or (iv) license, sell, rent, lease, transfer, assign, distribute or otherwise make the SaaS Service available to any third party (save as expressly permitted under this Agreement); or

4.2.6 use the SaaS Service in a manner, nor transmit, input or store any Customer Data, which breaches any third party right (including Intellectual Property Rights, data protection rights and privacy rights) and/or is Objectionable, incorrect or misleading.

The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the SaaS Service and, in the event of any such unauthorised access or use, promptly notify the Supplier.

4.3 Permitted Users:

4.3.1 Without limiting or affecting clause 4.2, no individual other than a Permitted User may access or use the SaaS Service; and the maximum number of Permitted Users that access and use the SaaS Service shall not exceed the number of Permitted Users specified in the Order Form, save where otherwise agreed in accordance with clause 4.3.2;

4.3.2 If, during the Term, the Customer wishes to make changes concerning the addition or replacement of Permitted Users, it shall send its request to the Supplier via the in-app messenger, such request to include the personnel’s name and phone number with the following text in the subject title of the message: New User Request. The Supplier will confirm such changes concerning the addition or replacement of Permitted Users to the email address of the Customer personnel from whom the request was received.

4.3.3 The Customer must procure each Permitted User’s compliance with clauses 4.1 and 4.2 and any other reasonable condition notified by the Supplier to the Customer from time to time during the Term.  A breach of any term of the Agreement by the Customer’s personnel (including any Permitted User) is and shall be deemed to be a breach of the Agreement by the Customer.

4.4 The Customer shall:

4.4.1 provide the Supplier with:

(4.1.a) all necessary cooperation in relation to this Agreement; and

(4.1.b) all necessary access to such information as may be required by the Supplier;

in order to provide the Services, including to Customer Data, security access information and configuration services;

4.4.2 without affecting its other obligations under this Agreement, comply with all applicable laws and regulations with respect to its activities under this Agreement;

4.4.3 obtain and shall maintain all necessary licences, consents, and permissions necessary for the Supplier and its personnel to perform their obligations under this Agreement;

4.4.4 ensure that its network and systems comply with the relevant specifications provided or made available by the Supplier from time to time; and

4.4.5 be, to the extent permitted by law and except as otherwise expressly provided in this Agreement, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to the Supplier's data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet.

5 CUSTOMER DATA

5.1 Supplier access to Customer Data: The Customer acknowledges and agrees that:

5.1.1 the Supplier may require access to the Customer Data to exercise its rights and perform its obligations under the Agreement; and

5.1.2 to the extent that this is necessary but subject to clause 8, the Supplier may authorise a member or members of its personnel to access the Customer Data for this purpose.

5.2 Analytical Data: The Customer acknowledges and agrees that:

5.2.1 the Supplier may use Customer Data and information about the Customer’s use of the Services to generate anonymised and aggregated statistical and analytical data (Analytical Data); and use Analytical Data for the Supplier’s internal research and product development purposes and to conduct statistical analysis and identify trends and insights;

5.2.2 the Supplier’s rights under clause 5.2.1 will survive termination of expiry of the Agreement; and

5.2.3 all right, title and interest in and to all Intellectual Property Rights embodied in Analytical Data is and shall remain the Supplier’s property.

5.3 Indemnity: The Customer unconditionally and irrevocably agrees to indemnify and keep fully and effectively indemnified and hold harmless the Supplier in full and on demand from and against any amount equal to any Liabilities of the Supplier as a result of, arising from, in connection with or which would not have arisen but for any actual or alleged claim by a third party that any Customer Data infringes the rights of that third party (including Intellectual Property Rights, data protection and privacy rights) or that the Customer Data is Objectionable, incorrect or misleading.

6 FEES

6.1 Fees: In consideration of the Supplier providing the Services to the Customer, the Customer shall pay the Fees to the Supplier in accordance with this clause 6. At the sole discretion of the Supplier, the Customer may be granted a 7 day period for which no fees arise.

6.2 Payment: The Customer shall pay the full amount invoiced to it by the Supplier to such bank account as is nominated by Supplier from time to time, within 30 days of the date of invoice, unless otherwise agreed in the Order Form. All amounts due under this Agreement shall be paid by the Customer to the Supplier in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

6.3 Overdue amounts: If the Customer fails to make any payment due to the Supplier under this Agreement by the due date for payment (excluding any amount contested in good faith), then, without limiting or affecting any other right or remedy provided under this Agreement or under applicable law, the Supplier may charge interest on overdue amounts. Interest will be calculated from the due date to the date of payment (both inclusive) whether before or after judgment at a percentage rate of 3% per calendar month. The Customer shall pay the interest together with the overdue amount.

6.4 VAT: The Fees are exclusive of amounts in respect of VAT (if applicable). The Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on a supply of the Services.

6.5 Increases: Notwithstanding the other provisions in this clause 6, the Supplier may increase the Fees once each Year (but not during the Initial Term) by the percentage change in the Consumer Price Index (or similar or equivalent index in Ireland if that index ceases to be published). The Supplier shall provide the Customer not less than thirty (30) days’ notice in writing of such increase in the Fees. If the Customer does not wish to pay the increased Fees, it may terminate the Agreement on providing the Supplier not less than ten (10) days’ notice in writing, provided that such notice is received by the Supplier before the effective date of the Fee increase. If the Customer does not terminate the Agreement in accordance with this clause, it shall be deemed to have accepted the increased Fees.

6.6 Sums due on termination: All payments payable to the Supplier (whether or not yet invoiced) shall become due immediately on the termination of this Agreement. This clause 6.6 is without prejudice to any right of the Supplier to claim for interest.

7 INTELLECTUAL PROPERTY

7.1 Ownership:

7.1.1 The Customer acknowledges and agrees that all Intellectual Property Rights in and to the Services (other than the Customer Data), the Website and all Underlying Systems (Service IP) is and shall remain the property of the Supplier and/or its licensors. Except as expressly provided in this Agreement, no rights or obligations in respect of the Service IP or any other Intellectual Property Rights of the Supplier and/or its licensors are granted to the Customer or any other person or shall be implied from this Agreement.

7.1.2 Without prejudice to the right of the Customer or any third party to challenge the validity of any of the Supplier’s rights in and to the Service IP or any other Intellectual Property Rights of the Supplier, the Customer shall not do or authorise any third party to do any act which would or might invalidate or be inconsistent with any Intellectual Property Rights of the Supplier and shall not omit or authorise any third party to omit to do any act which, by its omission, would have that effect or character.

7.1.3 As between the Parties, all right, title and interest in and to all Intellectual Property Rights embodied in the Customer Data is and shall remain the property of the Customer. The Customer grants to the Supplier a worldwide, non-exclusive, fully paid-up, royalty free, transferable, sub-licensable licence during the Term to use, store, copy, modify, make available and communicate the Customer Data in order to provide the Services and to exercise its rights and perform its obligations under the Agreement. The Customer warrants that it has all the rights in relation to Customer Data that are necessary to grant such rights to the Supplier.

7.2 Feedback: If the Customer provides the Supplier with ideas, comments or suggestions relating to the Services and/or the Underlying Systems (together feedback):

7.2.1 all Intellectual Property Rights in that feedback, and anything created as a result of that feedback (including new material, enhancements, modifications or derivative works), are owned solely by the Supplier and the Supplier may use or disclose the feedback for any purpose; and

7.2.2 in the event, that any Intellectual Property Rights in that feedback are vested in the Customer notwithstanding clause 7.2.1, the Customer hereby:

(1.a.i) assigns, transfers and conveys unto the Supplier with effect from the Effective Date all present and future right, title and interest in and to such Intellectual Property Rights, together with all related rights and powers accrued; this includes the right to bring, make, oppose, defend, appeal proceedings, claims or actions and obtain relief (and to retain any damages recovered) in respect of any infringement, or any other cause of action arising from ownership, of any of such Intellectual Property Rights, whether occurring before, on, or after the Effective Date;

(1.a.ii) undertakes to provide immediately to the Supplier all documentation relating to the ownership of such Intellectual Property Rights, and/or where applicable, such documentation that will come into the possession or control of the Customer after the date of this Agreement; this includes the prompt execution of all such documents and deeds and the doing of all such other acts or things as may be necessary or desirable to secure to the Supplier the full benefit of such Intellectual Property Rights;

(1.a.iii) warrants that such Intellectual Property Rights are free and unencumbered, and that the Customer is unaware of any infringement or likely infringement of any such Intellectual Property Rights; and

(1.a.iv) without limiting or affecting clause 7.3, indemnifies and holds harmless the Supplier, and agrees to keep the Supplier indemnified and held harmless, against all and any Liabilities that the Supplier suffers or incurs as a result of, in connection with or arising out of (i) any breach of this clause 7.2., (ii) a claim that any of such Intellectual Property Rights infringe the Intellectual Property Rights of a third party, and/or (iii) the enforcement of this
clause 7.2;

(1.a.v) irrevocably and unconditionally waives any (and agrees to procure the waiver of any third party) moral rights (and any rights of the same or similar effect anywhere in the world existing now or in the future created) relating to such Intellectual Property Rights in favour of the Supplier and its assignees, licensees and designees.

7.3 Third party Intellectual Property Rights indemnity:

7.3.1 The Supplier shall defend the Customer against any claim that the Customer’s use of the SaaS Service in accordance with the Agreement infringes any Irish patent effective as of the Start Date, copyright, trade mark, database right or right of confidentiality (IP Claim) and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such IP Claim, provided that the Customer:

(3.1.a) promptly notifies the Supplier in writing of the IP Claim;

(3.1.b) makes no admission of liability and does not otherwise prejudice the defence or settlement of the IP Claim, and does not itself attempt to settle the IP Claim;

(3.1.c) provides reasonable co-operation to the Supplier in the defence and settlement of the IP Claim, at the Supplier's reasonable expense; and

(3.1.d) gives the Supplier complete authority and information required for the Supplier to defend or settle the IP Claim.  The costs incurred or recovered are for the Supplier’s account.

7.3.2 The indemnity in clause 7.3.1 does not apply to the extent that an IP Claim is caused by, arises from or in connection with:

(3.2.a) the Customer’s breach of the Agreement;

(3.2.b) a modification of the Services by anyone other than the Supplier;

(3.2.c) use of any of the Services in a manner or for a purpose contrary to the instructions given to the Customer by the Supplier, and/or not reasonably contemplated by the Agreement and/or otherwise not authorised in writing by the Supplier;

(3.2.d) the Customer’s use of the Services after notice of the alleged or actual infringement from the Supplier or any appropriate authority; or

(3.2.e) any Customer Data.

7.3.3 If at any time an IP Claim is made, or in the Supplier’s reasonable opinion is likely to be made, then in defence or settlement of the IP Claim, the Supplier may (at the Supplier’s option):

(3.3.a) obtain for the Customer the right to continue using the items which are the subject of the IP Claim;

(3.3.b) modify, re-perform or replace the items which are the subject of the IP Claim so they become non-infringing; or

(3.3.c) if such remedies are not reasonably available, terminate this Agreement on two Business Days' notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.

7.3.4 The foregoing and clause 10.4 state the Customer’s sole and exclusive rights and remedies, and the Supplier's (including the Supplier's personnel’s) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.

8 CONFIDENTIALITY

8.1 Each Party must, unless it has the prior written consent of the other Party:

8.1.1 keep confidential, at all times, the Confidential Information of the other Party;

8.1.2 effect and maintain adequate security measures to safeguard the other Party’s Confidential Information from unauthorised access, disclosure or use;

8.1.3 not use the other Party’s Confidential Information for a purpose other than the performance of its obligations under this Agreement; and

8.1.4 disclose the other Party’s Confidential Information to its personnel or professional advisors on a need to know basis only and, in that case, ensure that any personnel or professional advisor to whom it discloses the other Party’s Confidential Information is aware of, and complies with, the provisions of clauses 8.1.1, 8.1.2 and 8.1.3.

8.2 The obligation of confidentiality in clause 8.1 does not apply to any disclosure or use of Confidential Information:

8.2.1 required by court order or applicable law;

8.2.2 which is publicly available through no fault of the recipient of the Confidential Information or its personnel;

8.2.3 which was rightfully received by a Party from a third party without restriction and without breach of any obligation of confidentiality; or

8.2.4 by the Supplier if required as part of a bona fide sale of its business (assets or shares, whether in whole or in part) to a third party, provided that the Supplier enters into a confidentiality agreement with the third party on terms no less restrictive than this clause 8.

9 WARRANTIES

9.1 Mutual warranties: Each Party warrants that:

9.1.1 it has full power and authority to enter into and perform its obligations under the Agreement; and

9.1.2 the Agreement is executed by a person with authority to bind that Party to this Agreement.

10 LIABILITY

10.1 Exclusion of warranties: Except as expressly and specifically provided in this Agreement:

10.1.1 the Supplier does not warrant that the Customer’s use of the Services will be uninterrupted or error free;

10.1.2 the Customer assumes sole responsibility for results obtained from the use of the Services by the Customer, and for conclusions drawn from such use.  The Supplier shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Supplier by the Customer in connection with the Services, or any actions taken by the Supplier at the Customer’s direction; and

10.1.3 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.

10.2 Nothing in this Agreement excludes the liability of the Supplier for:

10.2.1 death or personal injury caused by the Supplier's negligence;

10.2.2 fraud or fraudulent misrepresentation; or

10.2.3 any other liability which cannot be excluded or limited under applicable law.

10.3 Unrecoverable loss: Without limiting or affecting clause 10.2, to the fullest extent permitted by applicable law, the Supplier shall not be liable to the Customer under or in connection with the Agreement for any: (i) loss of profit, revenue, savings, business, use, loss or corruption of data or information (including Customer Data) and/or goodwill; or (ii) consequential, indirect, incidental or special damage or loss of any kind.

10.4 Maximum liability: The maximum aggregate liability of the Supplier under or in connection with the Agreement, including in respect of the indemnity at clause 7.3, whether in contract, tort (including negligence), breach of statutory duty or otherwise, shall not in any Year exceed an amount equal to the Fees paid by the Customer under the Agreement in the previous Year (which in the first Year is deemed to be the total Fees paid by the Customer from the Start Date to the date of the first event giving rise to liability).

10.5 Mitigation: Each Party must take reasonable steps to mitigate any loss or damage, cost or expense it may suffer or incur arising out of anything done or not done by the other Party under or in connection with the Agreement.

11 TERM, TERMINATION AND SUSPENSION

11.1 Duration: Unless terminated in accordance with this clause 11, the Agreement shall continue for the Initial Term and thereafter this Agreement shall be automatically renewed for successive Renewal Periods, unless:

11.1.1 either Party notifies the other Party of termination, in writing, at least thirty (30) days before the end of the Initial Term or any Renewal Period, in which case this Agreement shall terminate upon the expiry of the Initial Term or the applicable Renewal Period; or

11.1.2 otherwise terminated in accordance with the provisions of the Agreement.

11.2 No fault termination: Either Party may terminate the Agreement on providing not less than 7 days’ prior written notice to the other Party at any time.

11.3 Other termination rights: Without affecting any other right or remedy available to it, either Party may, by notice in writing to the other Party, immediately terminate the Agreement if the other Party:

11.3.1 breaches any material provision of the Agreement and the breach is not remedied within 30 days of the receipt of a notice from the first Party requiring it to remedy the breach; or where such breach is not capable of being remedied;

11.3.2 becomes insolvent, liquidated or bankrupt, has an examiner, administrator, receiver, liquidator, statutory manager, mortgagee’s or chargee’s agent appointed, becomes subject to any form of insolvency action or external administration or examinership, or ceases to continue business for any reason; or in respect of any of the foregoing, the other Party suffers any step or action in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction; or

11.3.3 is unable to perform a material obligation under the Agreement for thirty (30) days or more due to Force Majeure.

11.4 Consequences of termination or expiry:

11.4.1 Termination or expiry of the Agreement does not affect those provisions as are expressed to operate or have effect after termination or expiration and is without prejudice to any accrued rights or obligations or any rights or obligations which are intended to commence or survive expiry or termination of the Agreement.

11.4.2 On termination or expiry of the Agreement,

(4.2.a) all rights and licenses granted by either Party under this Agreement shall automatically terminate; and

(4.2.b) all Fees and other sums due to the Supplier shall be immediately paid in full.

11.4.3 Except to the extent that a Party has ongoing rights to use Confidential Information, at the other Party’s request following termination or expiry of the Agreement and subject to clause 11.4.4, a Party must promptly return to the other Party or destroy all Confidential Information of the other Party that is in the first Party’s possession or control.

11.4.4 At any time prior to one (1) month after the date of termination or expiry of the Agreement, the Customer may request in writing:

(4.4.a) a copy of any Customer Data stored using the SaaS Service, provided that the Customer pays the Supplier’s reasonable costs of providing that copy.  On receipt of that request, the Supplier will provide as soon as reasonably practicable a copy of the Customer Data in a common electronic form.  The Supplier does not warrant that the format of the Customer Data will be compatible with any software; and/or

(4.4.b) deletion of the Customer Data stored using the SaaS Service, in which case the Supplier will use reasonable endeavours to promptly delete that Customer Data.
To avoid doubt, the Supplier is not required to comply with clause 11.4.4(b) to the extent that the Customer previously requested deletion of the Customer Data.

11.5 Rights to restrict: Without limiting or affecting any other right or remedy available to the Supplier, the Supplier may restrict or suspend the Customer’s access to the SaaS Service and/or delete, edit or remove the relevant Customer Data, without liability, if the Supplier considers (acting reasonably) that the Customer (including its Permitted Users and/or any of its personnel) has:

11.5.1 undermined, or attempted to undermine, the security or integrity of the SaaS Service or any Underlying Systems;

11.5.2 used, or attempted to use, the SaaS Service: (i) for improper purposes; or (ii) in a manner, other than for normal operational purposes, that materially reduces the operational performance of the SaaS Service;

11.5.3 transmitted, inputted or stored any Customer Data that breaches or may breach the Agreement or any third party right (including Intellectual Property Rights, data protection rights and privacy rights), or that is or may be Objectionable, incorrect or misleading; or

11.5.4 breached clause 4.2 or otherwise materially breached the Agreement.

11.6 Process: The Supplier must notify the Customer if it restricts or suspends the Customer’s access, or deletes, edits or removes Customer Data, pursuant to clause 11.5. Clause 11.4.4(a) will not apply to the extent that it relates to Customer Data deleted or removed pursuant to clause 11.5.

12 GENERAL

12.1 Force Majeure: Neither Party shall be in breach of the Agreement, nor liable to the other Party for any failure or delay to perform its obligations under the Agreement to the extent that such non-performance or delay is caused by a Force Majeure Event, provided that the affected Party shall: (i) 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 its obligations under the Agreement; and (ii) use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations; and (iii) continue to perform its obligations to the extent practicable.

12.2 Binding on successors: The Agreement shall enure to the benefit of and be binding upon the Parties and their respective successors, personal representatives and assigns.

12.3 Rights and remedies: The rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by applicable law.

12.4 Rights of third parties: No person other than each Party has any right to a benefit under, or to enforce, the Agreement.

12.5 Waiver: Any waiver of any right under the Agreement is only effective if it is in writing and it applies only to the Party to whom the waiver is addressed and to the circumstances for which it is given.  No failure to exercise or delay in exercising any right or remedy provided under the Agreement or by law constitutes a waiver of such right or remedy nor shall it prevent any future exercise or enforcement of such right or remedy.  No single or partial exercise of any right or remedy under the Agreement shall preclude or restrict the further exercise of any such right or remedy or other rights or remedies.

12.6 Independent contractor: Nothing in the Agreement shall be deemed to constitute a partnership or joint venture between the Parties nor constitute a Party the agent of the other Party for any purpose.

12.7 Notices: Any notice required to be given under the Agreement, or in connection with the matters contemplated by the Agreement, shall (except where specifically provided otherwise) be in writing and personally delivered, sent by post or by email.  Such notice shall be deemed to have been given on delivery at the relevant address or, if sent by post, 2 Business Days after the date of posting, or if sent by email, when sent.  This clause does not apply to the service of any proceedings or other documents in any legal action.

12.8 Severability: If any provision of this Agreement (or part of a provision) is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.  If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.

12.9 Variation: Subject to clause 6.5, any variation to the Agreement must be in writing and signed by each Party.

12.10 Entire agreement: This Agreement (which term means the Order Form and the Baily Labs Terms and Conditions) sets out the whole agreement and understanding between the Parties relating to the Services, and supersedes and cancels any previous arrangement, understanding or agreement between them relating to their subject matter.  Each Party acknowledges and agrees that in entering into the Agreement it has not relied on, and shall have no right or remedy in respect of, any statement, representation, warranty, assurance or agreement (whether made negligently or innocently) relating to the subject matter of the Agreement that is not expressly set out in the Agreement, provided always that nothing in this clause shall limit or exclude any liability for fraud.

12.11 Subcontracting and assignment: The Customer may not assign, novate, subcontract or transfer any right or obligation under the Agreement without the prior written consent of the Supplier, that consent shall not to be unreasonably withheld. The Customer remains liable for its obligations under the Agreement despite any approved assignment, subcontracting or transfer. The Supplier may at any time assign, sub-license, sub-contract, mortgage or otherwise transfer any of its rights or obligations under this Agreement to any third party on notice to the Customer and the Customer undertakes to promptly execute and deliver any documents or instruments required by the Supplier for such purpose.

12.12 Governing Law and Jurisdiction: The Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of Ireland.  The Parties irrevocably agree that the Irish courts shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).

12.13 Counterparts: The Agreement may be signed in counterparts, each of which constitutes an original and all of which constitute the same agreement.  A Party may enter the Agreement by signing and emailing a counterpart copy to the other Party.
A. The Supplier has developed certain software applications and platforms which it makes available to subscribers via the internet on a subscription basis for the purpose of facilitating electronic payments using a landline telephone or mobile phone connection.

B. The Customer wishes to procure the Supplier's software solution for use in its business operations.

C. The Supplier has agreed to provide and the Customer has agreed to take and pay for the Supplier's service all in accordance with the Order Form and the Baily Labs Terms and Conditions.

1 DEFINITIONS AND INTERPRETATION

1.1 Definitions: In these Baily Labs Terms and Conditions and the Order Form the following terms shall have the following meanings:

Agreement - the Order Form and the Baily Labs Terms and Conditions;

Baily Labs Software - the software owned by the Supplier (and/or by its licensors) that is part of and/or used to provide the SaaS Service;

Baily Labs Terms and Conditions - these terms and conditions;

Business Day - a day (excluding Saturday and Sunday) on which clearing banks are generally open for business in Dublin, Ireland;

Customer Data - the data inputted by the Customer, Permitted Users, or the Supplier on the Customer’s behalf, for the purpose of using the Services or facilitating the Customer's use of the Services;

Confidential Information - the terms of the Agreement and any information that is not public knowledge and that is obtained from the other Party in the course of, or in connection with, the performance of Agreement including information relating to a Party's operations, processes, plans, product information, know-how, designs, trade secrets, market opportunities and customers. Without limiting or affecting the foregoing, the Supplier’s Confidential Information includes the Service IP; and the Customer’s Confidential Information includes the Customer Data;

Fees - the fees payable by the Customer to the Supplier for the Services as set out in the Order Form, but which may change from time to time during the Term in accordance with clause 6.5;

Force Majeure Event - an act, event, omission or accident beyond a Party's reasonable control, including any of the following: acts of God, including fire, flood, earthquake or other natural disaster; war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, breaking off of diplomatic relations or similar actions; terrorist attack, civil war, civil commotion or riots, sabotage; nuclear, chemical or biological contamination or sonic boom; compliance with any law; fire, explosion or accidental damage; loss at sea; adverse weather conditions including windstorm; collapse of building structures, failure of plant machinery, machinery, computers or vehicles; labour disputes, including strikes, industrial action or lockouts; and interruption or failure of utility services, including electric power, gas or water;

Initial Term - the period beginning on the Start Date and continuing for such period as is specified on the Order Form;

Intellectual Property Rights - any patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered 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;

Liabilities - includes all costs, claims, demands, damages, expenses, compensation, charges, settlements, penalties, losses, fines, awards and liabilities (including reasonable legal and professional fees and costs, together with VAT) whatever;

Normal Business Hours - between the hours 9am to 5pm in Ireland during Business Days;

Objectionable - includes being objectionable, defamatory, obscene, harassing, threatening, harmful, causing damage or injury to any person or property, or unlawful in any way;

Order Form - Customer's order for the Services as set out on the first page of this Agreement;

Payment Terms - the payment terms set out in the Order Form;

Permitted Users - those personnel of the Customer who are authorised by the Customer to access and use the SaaS Service on the Customer’s behalf, as set out in the Order Form and as may be amended from time to time during the Term in accordance with clause 4.3.2;

Related Service - any service (except the SaaS Service) and including support services provided by the Supplier to the Customer under this Agreement, as set out in the Order Form;

Renewal Period - each twelve (12) month successive period commencing on the expiry of the Initial Term;

SaaS Service - the subscription service provided by the Supplier to the Customer under this Agreement via the Website as more particularly described in the Order Form (and includes, as the context admits or requires any one, more or all of them or part of any of them);

Services - the SaaS Service and any Related Service (and includes, as the context admits or requires any one, more or all of them or part of any of them);

Service IP - has the meaning given in clause 7.1.1;

Start Date - the start date set out in the Order Form, unless otherwise agreed in writing by the Parties;

Term - the Initial term and any Renewal Period;

Underlying Systems - the Baily Labs Software, information technology solutions, systems and networks (including software and hardware) used by the Supplier to provide the Services, including any third party solutions, systems and networks (other than the Customer’s solutions, systems and networks);

VAT - value added tax as provided for in under applicable tax laws;

Virus - any thing or device (including any software, code, file or programme) which may prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices;

Website - the internet site at payremotely.io or such other website as notified to the Customer by the Supplier during the Term;

Year - a 12-month period starting on the Start Date or the anniversary of that date.

1.2 Interpretation: In the Agreement unless the context other requires:

1.2.1 clause and other headings are for ease of reference only and do not affect the interpretation of the Agreement;

1.2.2 words in the singular include the plural and vice versa;

1.2.3 any obligation accepted by a Party not to do something includes an obligation not to agree or allow that thing to be done;

1.2.4 a reference to:

(2.4.a) a person (including a Party) includes a natural person, corporate or unincorporated body (whether or not having separate legal personality), and includes a reference to that person's legal and personal representatives, successors and permitted assigns;
(2.4.b) personnel includes officers, employees, contractors and agents, but a reference to the Customer’s personnel does not include the Supplier;
(2.4.c) including and similar words do not imply any limit; and
(2.4.d) a statute includes references to regulations, orders or notices made under or in connection with the statute or regulations and all amendments, replacements or other changes to any of them.

1.2.5 If there is any conflict or inconsistency between a provision or part provision of the Order Form and the Baily Labs Terms and Conditions, the Order Form shall prevail in respect of such conflict or inconsistency.

2 LICENSE

2.1 Subject to the Customer paying the Fees in accordance with clause 6, the restrictions set out in clause 4 and the other terms and conditions of this Agreement, the Supplier hereby grants to the Customer a non-exclusive, non-transferable right, without the right to grant sub-licenses, to permit the Permitted Users to use the SaaS Service during the Term solely for the Customer’s internal business operations.

2.2 The rights provided under this clause 2 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer.

3 SERVICES

3.1 General: The Supplier shall use reasonable endeavours to supply the Services:

3.1.1 in accordance with the terms of the Agreement and the applicable laws of Ireland;

3.1.2 with reasonable care, skill and diligence; and  

3.1.3 using skilled, experienced and qualified personnel.  

3.2 Non-exclusive: The Supplier’s provision of the Services to the Customer is and shall be on a non-exclusive basis. Nothing in the Agreement prevents the Supplier from providing the Services or any other services to any other person.

3.3 Availability: The Supplier will use reasonable endeavours to make the SaaS Service available during Normal Business Hours, except for:

3.3.1 planned maintenance carried out during a maintenance window, provided the Supplier will use reasonable endeavours to give the Customer at least 24 Normal Business Hours notice in advance; and

3.3.2 unscheduled maintenance performed outside Normal Business Hours, provided the Supplier will use reasonable endeavours to give the Customer at least 6 Normal Business Hours notice in advance.

The Supplier is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges and agrees that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

3.4 Change to Services: The Supplier may, from time to time and without prior notice, change the Services in order to comply with any applicable regulatory or statutory requirements; and where practicable, it will give the Customer notice of any such change.

4 CUSTOMER OBLIGATIONS

4.1 General use: Without limiting or affecting clause 2.1, the Customer, its personnel and the Permitted Users must use the Services in accordance with the Agreement solely for the Customer’s own internal business purposes; and must not resell or make available the Services to any other person, or otherwise commercially exploit the Services.

4.2 Access conditions: When accessing the SaaS Service, the Customer, its personnel and Permitted Users must not:

4.2.1 impersonate another person or misrepresent authorisation to act on behalf of others or the Supplier;

4.2.2 attempt to undermine the security or integrity of the Underlying Systems;

4.2.3 access, store, distribute or transmit any Viruses, and shall not use, or misuse, the SaaS Service in any way which impairs or may impair the functionality of the Underlying Systems or impair the ability of any other user to use the SaaS Service;

4.2.4 attempt to view, access or copy any material or data other than: (a) the Customer Data; (b) information which the Customer is expressly authorised by the Supplier to access; and (c) to the extent necessary for the Customer and Permitted Users to use the SaaS Service in accordance with this Agreement;

4.2.5 except as may be permitted by mandatory law: (i) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the SaaS Service (as applicable) in any form or media or by any means; (ii) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the SaaS Service; (iii) access all or any part of the SaaS Service in order to build a product or service which competes with the SaaS Service (or any part thereof); or (iv) license, sell, rent, lease, transfer, assign, distribute or otherwise make the SaaS Service available to any third party (save as expressly permitted under this Agreement); or

4.2.6 use the SaaS Service in a manner, nor transmit, input or store any Customer Data, which breaches any third party right (including Intellectual Property Rights, data protection rights and privacy rights) and/or is Objectionable, incorrect or misleading.

The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the SaaS Service and, in the event of any such unauthorised access or use, promptly notify the Supplier.

4.3 Permitted Users:

4.3.1 Without limiting or affecting clause 4.2, no individual other than a Permitted User may access or use the SaaS Service; and the maximum number of Permitted Users that access and use the SaaS Service shall not exceed the number of Permitted Users specified in the Order Form, save where otherwise agreed in accordance with clause 4.3.2;

4.3.2 If, during the Term, the Customer wishes to make changes concerning the addition or replacement of Permitted Users, it shall send its request to the Supplier via the in-app messenger, such request to include the personnel’s name and phone number with the following text in the subject title of the message: New User Request. The Supplier will confirm such changes concerning the addition or replacement of Permitted Users to the email address of the Customer personnel from whom the request was received.

4.3.3 The Customer must procure each Permitted User’s compliance with clauses 4.1 and 4.2 and any other reasonable condition notified by the Supplier to the Customer from time to time during the Term.  A breach of any term of the Agreement by the Customer’s personnel (including any Permitted User) is and shall be deemed to be a breach of the Agreement by the Customer.

4.4 The Customer shall:

4.4.1 provide the Supplier with:

(4.1.a) all necessary cooperation in relation to this Agreement; and

(4.1.b) all necessary access to such information as may be required by the Supplier;

in order to provide the Services, including to Customer Data, security access information and configuration services;

4.4.2 without affecting its other obligations under this Agreement, comply with all applicable laws and regulations with respect to its activities under this Agreement;

4.4.3 obtain and shall maintain all necessary licences, consents, and permissions necessary for the Supplier and its personnel to perform their obligations under this Agreement;

4.4.4 ensure that its network and systems comply with the relevant specifications provided or made available by the Supplier from time to time; and

4.4.5 be, to the extent permitted by law and except as otherwise expressly provided in this Agreement, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to the Supplier's data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet.

5 CUSTOMER DATA

5.1 Supplier access to Customer Data: The Customer acknowledges and agrees that:

5.1.1 the Supplier may require access to the Customer Data to exercise its rights and perform its obligations under the Agreement; and

5.1.2 to the extent that this is necessary but subject to clause 8, the Supplier may authorise a member or members of its personnel to access the Customer Data for this purpose.

5.2 Analytical Data: The Customer acknowledges and agrees that:

5.2.1 the Supplier may use Customer Data and information about the Customer’s use of the Services to generate anonymised and aggregated statistical and analytical data (Analytical Data); and use Analytical Data for the Supplier’s internal research and product development purposes and to conduct statistical analysis and identify trends and insights;

5.2.2 the Supplier’s rights under clause 5.2.1 will survive termination of expiry of the Agreement; and

5.2.3 all right, title and interest in and to all Intellectual Property Rights embodied in Analytical Data is and shall remain the Supplier’s property.

5.3 Indemnity: The Customer unconditionally and irrevocably agrees to indemnify and keep fully and effectively indemnified and hold harmless the Supplier in full and on demand from and against any amount equal to any Liabilities of the Supplier as a result of, arising from, in connection with or which would not have arisen but for any actual or alleged claim by a third party that any Customer Data infringes the rights of that third party (including Intellectual Property Rights, data protection and privacy rights) or that the Customer Data is Objectionable, incorrect or misleading.

6 FEES

6.1 Fees: In consideration of the Supplier providing the Services to the Customer, the Customer shall pay the Fees to the Supplier in accordance with this clause 6. At the sole discretion of the Supplier, the Customer may be granted a 7 day period for which no fees arise.

6.2 Payment: The Customer shall pay the full amount invoiced to it by the Supplier to such bank account as is nominated by Supplier from time to time, within 30 days of the date of invoice, unless otherwise agreed in the Order Form. All amounts due under this Agreement shall be paid by the Customer to the Supplier in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

6.3 Overdue amounts: If the Customer fails to make any payment due to the Supplier under this Agreement by the due date for payment (excluding any amount contested in good faith), then, without limiting or affecting any other right or remedy provided under this Agreement or under applicable law, the Supplier may charge interest on overdue amounts. Interest will be calculated from the due date to the date of payment (both inclusive) whether before or after judgment at a percentage rate of 3% per calendar month. The Customer shall pay the interest together with the overdue amount.

6.4 VAT: The Fees are exclusive of amounts in respect of VAT (if applicable). The Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on a supply of the Services.

6.5 Increases: Notwithstanding the other provisions in this clause 6, the Supplier may increase the Fees once each Year (but not during the Initial Term) by the percentage change in the Consumer Price Index (or similar or equivalent index in Ireland if that index ceases to be published). The Supplier shall provide the Customer not less than thirty (30) days’ notice in writing of such increase in the Fees. If the Customer does not wish to pay the increased Fees, it may terminate the Agreement on providing the Supplier not less than ten (10) days’ notice in writing, provided that such notice is received by the Supplier before the effective date of the Fee increase. If the Customer does not terminate the Agreement in accordance with this clause, it shall be deemed to have accepted the increased Fees.

6.6 Sums due on termination: All payments payable to the Supplier (whether or not yet invoiced) shall become due immediately on the termination of this Agreement. This clause 6.6 is without prejudice to any right of the Supplier to claim for interest.

7 INTELLECTUAL PROPERTY

7.1 Ownership:

7.1.1 The Customer acknowledges and agrees that all Intellectual Property Rights in and to the Services (other than the Customer Data), the Website and all Underlying Systems (Service IP) is and shall remain the property of the Supplier and/or its licensors. Except as expressly provided in this Agreement, no rights or obligations in respect of the Service IP or any other Intellectual Property Rights of the Supplier and/or its licensors are granted to the Customer or any other person or shall be implied from this Agreement.

7.1.2 Without prejudice to the right of the Customer or any third party to challenge the validity of any of the Supplier’s rights in and to the Service IP or any other Intellectual Property Rights of the Supplier, the Customer shall not do or authorise any third party to do any act which would or might invalidate or be inconsistent with any Intellectual Property Rights of the Supplier and shall not omit or authorise any third party to omit to do any act which, by its omission, would have that effect or character.

7.1.3 As between the Parties, all right, title and interest in and to all Intellectual Property Rights embodied in the Customer Data is and shall remain the property of the Customer. The Customer grants to the Supplier a worldwide, non-exclusive, fully paid-up, royalty free, transferable, sub-licensable licence during the Term to use, store, copy, modify, make available and communicate the Customer Data in order to provide the Services and to exercise its rights and perform its obligations under the Agreement. The Customer warrants that it has all the rights in relation to Customer Data that are necessary to grant such rights to the Supplier.

7.2 Feedback: If the Customer provides the Supplier with ideas, comments or suggestions relating to the Services and/or the Underlying Systems (together feedback):

7.2.1 all Intellectual Property Rights in that feedback, and anything created as a result of that feedback (including new material, enhancements, modifications or derivative works), are owned solely by the Supplier and the Supplier may use or disclose the feedback for any purpose; and

7.2.2 in the event, that any Intellectual Property Rights in that feedback are vested in the Customer notwithstanding clause 7.2.1, the Customer hereby:

(1.a.i) assigns, transfers and conveys unto the Supplier with effect from the Effective Date all present and future right, title and interest in and to such Intellectual Property Rights, together with all related rights and powers accrued; this includes the right to bring, make, oppose, defend, appeal proceedings, claims or actions and obtain relief (and to retain any damages recovered) in respect of any infringement, or any other cause of action arising from ownership, of any of such Intellectual Property Rights, whether occurring before, on, or after the Effective Date;

(1.a.ii) undertakes to provide immediately to the Supplier all documentation relating to the ownership of such Intellectual Property Rights, and/or where applicable, such documentation that will come into the possession or control of the Customer after the date of this Agreement; this includes the prompt execution of all such documents and deeds and the doing of all such other acts or things as may be necessary or desirable to secure to the Supplier the full benefit of such Intellectual Property Rights;

(1.a.iii) warrants that such Intellectual Property Rights are free and unencumbered, and that the Customer is unaware of any infringement or likely infringement of any such Intellectual Property Rights; and

(1.a.iv) without limiting or affecting clause 7.3, indemnifies and holds harmless the Supplier, and agrees to keep the Supplier indemnified and held harmless, against all and any Liabilities that the Supplier suffers or incurs as a result of, in connection with or arising out of (i) any breach of this clause 7.2., (ii) a claim that any of such Intellectual Property Rights infringe the Intellectual Property Rights of a third party, and/or (iii) the enforcement of this
clause 7.2;

(1.a.v) irrevocably and unconditionally waives any (and agrees to procure the waiver of any third party) moral rights (and any rights of the same or similar effect anywhere in the world existing now or in the future created) relating to such Intellectual Property Rights in favour of the Supplier and its assignees, licensees and designees.

7.3 Third party Intellectual Property Rights indemnity:

7.3.1 The Supplier shall defend the Customer against any claim that the Customer’s use of the SaaS Service in accordance with the Agreement infringes any Irish patent effective as of the Start Date, copyright, trade mark, database right or right of confidentiality (IP Claim) and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such IP Claim, provided that the Customer:

(3.1.a) promptly notifies the Supplier in writing of the IP Claim;

(3.1.b) makes no admission of liability and does not otherwise prejudice the defence or settlement of the IP Claim, and does not itself attempt to settle the IP Claim;

(3.1.c) provides reasonable co-operation to the Supplier in the defence and settlement of the IP Claim, at the Supplier's reasonable expense; and

(3.1.d) gives the Supplier complete authority and information required for the Supplier to defend or settle the IP Claim.  The costs incurred or recovered are for the Supplier’s account.

7.3.2 The indemnity in clause 7.3.1 does not apply to the extent that an IP Claim is caused by, arises from or in connection with:

(3.2.a) the Customer’s breach of the Agreement;

(3.2.b) a modification of the Services by anyone other than the Supplier;

(3.2.c) use of any of the Services in a manner or for a purpose contrary to the instructions given to the Customer by the Supplier, and/or not reasonably contemplated by the Agreement and/or otherwise not authorised in writing by the Supplier;

(3.2.d) the Customer’s use of the Services after notice of the alleged or actual infringement from the Supplier or any appropriate authority; or

(3.2.e) any Customer Data.

7.3.3 If at any time an IP Claim is made, or in the Supplier’s reasonable opinion is likely to be made, then in defence or settlement of the IP Claim, the Supplier may (at the Supplier’s option):

(3.3.a) obtain for the Customer the right to continue using the items which are the subject of the IP Claim;

(3.3.b) modify, re-perform or replace the items which are the subject of the IP Claim so they become non-infringing; or

(3.3.c) if such remedies are not reasonably available, terminate this Agreement on two Business Days' notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.

7.3.4 The foregoing and clause 10.4 state the Customer’s sole and exclusive rights and remedies, and the Supplier's (including the Supplier's personnel’s) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.

8 CONFIDENTIALITY

8.1 Each Party must, unless it has the prior written consent of the other Party:

8.1.1 keep confidential, at all times, the Confidential Information of the other Party;

8.1.2 effect and maintain adequate security measures to safeguard the other Party’s Confidential Information from unauthorised access, disclosure or use;

8.1.3 not use the other Party’s Confidential Information for a purpose other than the performance of its obligations under this Agreement; and

8.1.4 disclose the other Party’s Confidential Information to its personnel or professional advisors on a need to know basis only and, in that case, ensure that any personnel or professional advisor to whom it discloses the other Party’s Confidential Information is aware of, and complies with, the provisions of clauses 8.1.1, 8.1.2 and 8.1.3.

8.2 The obligation of confidentiality in clause 8.1 does not apply to any disclosure or use of Confidential Information:

8.2.1 required by court order or applicable law;

8.2.2 which is publicly available through no fault of the recipient of the Confidential Information or its personnel;

8.2.3 which was rightfully received by a Party from a third party without restriction and without breach of any obligation of confidentiality; or

8.2.4 by the Supplier if required as part of a bona fide sale of its business (assets or shares, whether in whole or in part) to a third party, provided that the Supplier enters into a confidentiality agreement with the third party on terms no less restrictive than this clause 8.

9 WARRANTIES

9.1 Mutual warranties: Each Party warrants that:

9.1.1 it has full power and authority to enter into and perform its obligations under the Agreement; and

9.1.2 the Agreement is executed by a person with authority to bind that Party to this Agreement.

10 LIABILITY

10.1 Exclusion of warranties: Except as expressly and specifically provided in this Agreement:

10.1.1 the Supplier does not warrant that the Customer’s use of the Services will be uninterrupted or error free;

10.1.2 the Customer assumes sole responsibility for results obtained from the use of the Services by the Customer, and for conclusions drawn from such use.  The Supplier shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Supplier by the Customer in connection with the Services, or any actions taken by the Supplier at the Customer’s direction; and

10.1.3 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.

10.2 Nothing in this Agreement excludes the liability of the Supplier for:

10.2.1 death or personal injury caused by the Supplier's negligence;

10.2.2 fraud or fraudulent misrepresentation; or

10.2.3 any other liability which cannot be excluded or limited under applicable law.

10.3 Unrecoverable loss: Without limiting or affecting clause 10.2, to the fullest extent permitted by applicable law, the Supplier shall not be liable to the Customer under or in connection with the Agreement for any: (i) loss of profit, revenue, savings, business, use, loss or corruption of data or information (including Customer Data) and/or goodwill; or (ii) consequential, indirect, incidental or special damage or loss of any kind.

10.4 Maximum liability: The maximum aggregate liability of the Supplier under or in connection with the Agreement, including in respect of the indemnity at clause 7.3, whether in contract, tort (including negligence), breach of statutory duty or otherwise, shall not in any Year exceed an amount equal to the Fees paid by the Customer under the Agreement in the previous Year (which in the first Year is deemed to be the total Fees paid by the Customer from the Start Date to the date of the first event giving rise to liability).

10.5 Mitigation: Each Party must take reasonable steps to mitigate any loss or damage, cost or expense it may suffer or incur arising out of anything done or not done by the other Party under or in connection with the Agreement.

11 TERM, TERMINATION AND SUSPENSION

11.1 Duration: Unless terminated in accordance with this clause 11, the Agreement shall continue for the Initial Term and thereafter this Agreement shall be automatically renewed for successive Renewal Periods, unless:

11.1.1 either Party notifies the other Party of termination, in writing, at least thirty (30) days before the end of the Initial Term or any Renewal Period, in which case this Agreement shall terminate upon the expiry of the Initial Term or the applicable Renewal Period; or

11.1.2 otherwise terminated in accordance with the provisions of the Agreement.

11.2 No fault termination: Either Party may terminate the Agreement on providing not less than 7 days’ prior written notice to the other Party at any time.

11.3 Other termination rights: Without affecting any other right or remedy available to it, either Party may, by notice in writing to the other Party, immediately terminate the Agreement if the other Party:

11.3.1 breaches any material provision of the Agreement and the breach is not remedied within 30 days of the receipt of a notice from the first Party requiring it to remedy the breach; or where such breach is not capable of being remedied;

11.3.2 becomes insolvent, liquidated or bankrupt, has an examiner, administrator, receiver, liquidator, statutory manager, mortgagee’s or chargee’s agent appointed, becomes subject to any form of insolvency action or external administration or examinership, or ceases to continue business for any reason; or in respect of any of the foregoing, the other Party suffers any step or action in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction; or

11.3.3 is unable to perform a material obligation under the Agreement for thirty (30) days or more due to Force Majeure.

11.4 Consequences of termination or expiry:

11.4.1 Termination or expiry of the Agreement does not affect those provisions as are expressed to operate or have effect after termination or expiration and is without prejudice to any accrued rights or obligations or any rights or obligations which are intended to commence or survive expiry or termination of the Agreement.

11.4.2 On termination or expiry of the Agreement,

(4.2.a) all rights and licenses granted by either Party under this Agreement shall automatically terminate; and

(4.2.b) all Fees and other sums due to the Supplier shall be immediately paid in full.

11.4.3 Except to the extent that a Party has ongoing rights to use Confidential Information, at the other Party’s request following termination or expiry of the Agreement and subject to clause 11.4.4, a Party must promptly return to the other Party or destroy all Confidential Information of the other Party that is in the first Party’s possession or control.

11.4.4 At any time prior to one (1) month after the date of termination or expiry of the Agreement, the Customer may request in writing:

(4.4.a) a copy of any Customer Data stored using the SaaS Service, provided that the Customer pays the Supplier’s reasonable costs of providing that copy.  On receipt of that request, the Supplier will provide as soon as reasonably practicable a copy of the Customer Data in a common electronic form.  The Supplier does not warrant that the format of the Customer Data will be compatible with any software; and/or

(4.4.b) deletion of the Customer Data stored using the SaaS Service, in which case the Supplier will use reasonable endeavours to promptly delete that Customer Data.
To avoid doubt, the Supplier is not required to comply with clause 11.4.4(b) to the extent that the Customer previously requested deletion of the Customer Data.

11.5 Rights to restrict: Without limiting or affecting any other right or remedy available to the Supplier, the Supplier may restrict or suspend the Customer’s access to the SaaS Service and/or delete, edit or remove the relevant Customer Data, without liability, if the Supplier considers (acting reasonably) that the Customer (including its Permitted Users and/or any of its personnel) has:

11.5.1 undermined, or attempted to undermine, the security or integrity of the SaaS Service or any Underlying Systems;

11.5.2 used, or attempted to use, the SaaS Service: (i) for improper purposes; or (ii) in a manner, other than for normal operational purposes, that materially reduces the operational performance of the SaaS Service;

11.5.3 transmitted, inputted or stored any Customer Data that breaches or may breach the Agreement or any third party right (including Intellectual Property Rights, data protection rights and privacy rights), or that is or may be Objectionable, incorrect or misleading; or

11.5.4 breached clause 4.2 or otherwise materially breached the Agreement.

11.6 Process: The Supplier must notify the Customer if it restricts or suspends the Customer’s access, or deletes, edits or removes Customer Data, pursuant to clause 11.5. Clause 11.4.4(a) will not apply to the extent that it relates to Customer Data deleted or removed pursuant to clause 11.5.

12 GENERAL

12.1 Force Majeure: Neither Party shall be in breach of the Agreement, nor liable to the other Party for any failure or delay to perform its obligations under the Agreement to the extent that such non-performance or delay is caused by a Force Majeure Event, provided that the affected Party shall: (i) 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 its obligations under the Agreement; and (ii) use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations; and (iii) continue to perform its obligations to the extent practicable.

12.2 Binding on successors: The Agreement shall enure to the benefit of and be binding upon the Parties and their respective successors, personal representatives and assigns.

12.3 Rights and remedies: The rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by applicable law.

12.4 Rights of third parties: No person other than each Party has any right to a benefit under, or to enforce, the Agreement.

12.5 Waiver: Any waiver of any right under the Agreement is only effective if it is in writing and it applies only to the Party to whom the waiver is addressed and to the circumstances for which it is given.  No failure to exercise or delay in exercising any right or remedy provided under the Agreement or by law constitutes a waiver of such right or remedy nor shall it prevent any future exercise or enforcement of such right or remedy.  No single or partial exercise of any right or remedy under the Agreement shall preclude or restrict the further exercise of any such right or remedy or other rights or remedies.

12.6 Independent contractor: Nothing in the Agreement shall be deemed to constitute a partnership or joint venture between the Parties nor constitute a Party the agent of the other Party for any purpose.

12.7 Notices: Any notice required to be given under the Agreement, or in connection with the matters contemplated by the Agreement, shall (except where specifically provided otherwise) be in writing and personally delivered, sent by post or by email.  Such notice shall be deemed to have been given on delivery at the relevant address or, if sent by post, 2 Business Days after the date of posting, or if sent by email, when sent.  This clause does not apply to the service of any proceedings or other documents in any legal action.

12.8 Severability: If any provision of this Agreement (or part of a provision) is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.  If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.

12.9 Variation: Subject to clause 6.5, any variation to the Agreement must be in writing and signed by each Party.

12.10 Entire agreement: This Agreement (which term means the Order Form and the Baily Labs Terms and Conditions) sets out the whole agreement and understanding between the Parties relating to the Services, and supersedes and cancels any previous arrangement, understanding or agreement between them relating to their subject matter.  Each Party acknowledges and agrees that in entering into the Agreement it has not relied on, and shall have no right or remedy in respect of, any statement, representation, warranty, assurance or agreement (whether made negligently or innocently) relating to the subject matter of the Agreement that is not expressly set out in the Agreement, provided always that nothing in this clause shall limit or exclude any liability for fraud.

12.11 Subcontracting and assignment: The Customer may not assign, novate, subcontract or transfer any right or obligation under the Agreement without the prior written consent of the Supplier, that consent shall not to be unreasonably withheld. The Customer remains liable for its obligations under the Agreement despite any approved assignment, subcontracting or transfer. The Supplier may at any time assign, sub-license, sub-contract, mortgage or otherwise transfer any of its rights or obligations under this Agreement to any third party on notice to the Customer and the Customer undertakes to promptly execute and deliver any documents or instruments required by the Supplier for such purpose.

12.12 Governing Law and Jurisdiction: The Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of Ireland.  The Parties irrevocably agree that the Irish courts shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).

12.13 Counterparts: The Agreement may be signed in counterparts, each of which constitutes an original and all of which constitute the same agreement.  A Party may enter the Agreement by signing and emailing a counterpart copy to the other Party.

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