TERMS AND CONDITIONS OF SERVICE

1.    Interpretation

1.1  Definitions: In this Agreement (and the background recitals above): 

Affiliate” means in relation to a person, any other person which controls, is controlled by or is under common control with that first person; and for this purpose “control” means possession of the power to direct or cause, or to appoint a majority of those ultimately responsible for, the direction of the management and policies of a person whether by membership, ownership, contract or otherwise;

Authorised Users” means those employees, agents and independent contractors of the Client who are authorised by the Client to use the Services and the Documentation; 

Confidential Information” means, in relation to a party’s obligations under this Agreement, non-public information that is proprietary or confidential to the other party and is either clearly labelled as such or identified as Confidential Information in Clauses 11.1 (Spearline Confidential Information) or 11.6 (client data); 

Client Data” means the data inputted by the Client or Authorised Users in the course of the Client’s use of the Services; 

Data Processing Agreement” means the agreement entered into between Spearline and the Client in relation to processing of period data comprised in the Client Data as set out at www.spearline.com/data-processing-agreement/;

Documentation” means all documents, demonstration materials, webinars, user manuals, handbooks, training materials, specifications, requirements, and other written or electronic materials for or that result from the use of the Services that Spearline makes available to the Client; 

Effective Date” means, unless otherwise agreed in the applicable Statement of Work, the date this Agreement is executed by both parties; 

Event of Force Majeure” means an act of God including but not limited to fire, flood, earthquake, windstorm or other natural disaster; an act of any sovereign including but not limited to war, invasion, act of foreign enemies, hostilities (whether war be declared or not), terrorist attack, civil war, rebellion, revolution, insurrection, military or usurped power or confiscation, nationalisation, requisition, destruction or damage to property by or under the order of any government or public or local authority or imposition of government sanction embargo or similar action; law, judgment, order, decree, embargo, blockade;  any collapse of a building, fire, explosion or accident; any labour dispute including but not limited to strike, lockout or boycott; interruption or failure of utility service including but not limited to electric power, gas, water or telephone service; any outbreak of disease including but not limited to any epidemic or pandemic; any failure or delay of suppliers or subcontractors of the Party  claiming

Event of Force Majeure”; or any other event or circumstances beyond the reasonable control of the Party claiming “Event of Force Majeure”;

Fees” means all fees payable by the Client to Spearline for the Services (including but not limited to Subscription Fees, if any), as set out in the applicable Statement of Work;

Initial Subscription Term” means the initial term of the Services as set out in a Statement of Work; 

Intellectual Property Rights” means all patents, utility models, rights to inventions, copyright and neighbouring and related rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, Confidential Information (including know-how and trade secrets) and all and other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection that subsist or will subsist now or in the future in any part of the world;

Loss” includes any demand, claim, proceeding, suit, judgement, loss, liability, cost, expense, fee, penalty or fine;

Renewal Period” means the period described a Statement of Work; 

Services” means the services provided by Spearline to the Client under this Agreement, including but not limited to software subscription services in respect of the Software via https://www.spearline.com/ or https://testrtc.com/ or any other website notified to the Client by Spearline from time to time, as more particularly described in a Statement of Work; 

Software” means the online platform(s) provided by Spearline as part of the Services and listed in a Statement of Work; 

Specifications” means: 

(a) All requirements (e.g., technical, functional, operational, and security-related) for the Services stated in this Agreement or a Statement of Work; 

(b) all Documentation;

(c) Any other materials that Spearline makes available that describe the operation, functionality, or performance of the Services and/ or the Software; 

(d) All correspondence from Spearline to Client describing the operation, functionality or performance of the Services and/or the Software; and 

(e) Any proposals, bids, quotes, and written responses thereto from Spearline to Client

Statement of Work” means any document that the Parties agree to and sign during the Term that specifically provides it will be governed by the terms of this Agreement;

Subscription Fees” means the subscription fees payable by the Client to Spearline for the User Subscriptions, as set out in the applicable Statement of Work; 

Subscription Term” means the Initial Subscription Term together with any subsequent Renewal Periods as set out in the applicable Statement of Work; 

Support Services Policy” means Spearline’s policy for providing support in relation to the Services as set out in a Statement of Work or as may be notified to the Client from time to time; 

User Subscriptions” means the user subscriptions purchased by the Client pursuant to this Agreement which entitle Authorised Users to access and use the Services and the Documentation in accordance with this Agreement; and

Virus” means 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.

 

1.2. Construction: In this Agreement, unless the contrary intention is stated, a reference to:

1.2.1. the singular shall include the plural and vice versa;

1.2.2. a person shall be construed as a reference to any individual, firm or company, corporation, governmental entity or agency of a state or any association or partnership (whether or not having separate legal personality) or two or more of the foregoing;

1.2.3. a person includes that person’s legal personal representatives, successors and permitted assigns;

1.2.4. time shall be construed by reference to whatever time may from time to time be in force in Ireland;

1.2.5. any agreement document or instrument is to the same as amended, novated, modified, supplemented or replaced from time to time;

1.2.6 ‘this Agreement’ mean the Clauses of, and the Schedules to, this Agreement, all of which shall be read as one document;

1.2.7. a Clause or other provision is a reference to a Clause or provision of this Agreement, and any reference to a sub provision is, unless otherwise stated, a reference to a sub provision of the provision in which the reference appears; 

1.2.8. ‘including’ means comprising, but not by way of limitation to any class, list or category;

1.2.9. a law includes any provision of any constitution, statute, statutory instrument, order, by-law, directive,  regulation or decision of any governmental entity and any judicial or administrative interpretation of any of the foregoing, in each case, as amended, revised, modified or replaced from time to time; 

1.2.10. any Irish legal or accounting term for any action, remedy, method of judicial proceeding, insolvency proceeding, event of incapacity, legal or accounting document, legal or accounting status, court, governmental or administrative authority or agency, accounting body, official or any legal or accounting concept practice or principle or thing shall in respect of any jurisdiction other than Ireland be deemed to include what most approximates in that jurisdiction to the Irish legal or accounting term concerned;

1.2.11. ‘writing’ shall include a reference to any electronic mode of representing or reproducing words in visible form; and

1.2.12. ‘business day’ shall be construed as a reference to  a day (other than a Saturday or Sunday) on which the banks are generally open for business in Ireland.

1.3. Certain rules of construction disapplied: If any ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties and no presumption or burden of proof shall arise favouring or disfavouring any party by virtue of the authorship of any of the provisions of this Agreement.

1.4 Exercise of powers of control: Where any obligation in this Agreement is expressed to be undertaken or assumed by any party, that obligation is to be construed as requiring the party concerned to exercise all rights and powers of control over the affairs of any other person which it is able to exercise (whether directly or indirectly) in order to secure performance of that obligation by each such person as if that person were bound by that obligation.

1.5 Headings: Headings and captions are to be ignored in the construction of this Agreement.

 

2. User subscriptions

2.1. Grant of Rights: Subject to the restrictions set out in this Clause 2 and the other terms and conditions of this Agreement, Spearline grants to the Client a non-exclusive, non-transferable right to permit the Authorised Users to use the Services and the Documentation during the Subscription Term solely for the Client’s internal business operations.

2.2. Prohibited uses: The Client shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:

2.2.1. is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;

2.2.2. facilitates illegal activity;

2.2.3. depicts sexually explicit images;

2.2.4. promotes unlawful violence;

2.2.5. is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or

2.2.6 in a manner that is otherwise illegal or causes damage or injury to any person or property.

The Client acknowledges that it is solely responsible for ensuring that its use of the Services does not infringe this Clause 2.2 and Spearline shall not be obliged to concern itself with the Client’s use of the Service; however, Spearline reserves the right, without liability or prejudice to its other rights to the Client, to disable the Client’s access if Spearline becomes aware that of any use of any material that breaches the provisions of this Clause.

2.3. Usage Restrictions: The Client shall not:

2.3.1. except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties:

2.3.1.1. 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 Software and/or Documentation (as applicable) in any form or media or by any means; or

2.3.1.2. attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or

2.3.2. access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation; or

2.3.3. use the Services and/or Documentation to provide services to third parties; or

2.3.4. license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party except the Authorised Users, or

2.3.5. attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this Clause 2. 

2.4. Unauthorised use: The Client shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify Spearline.

2.5. Additional User Subscriptions

2.5.1. The Client may, from time to time during any Subscription Term by notice in writing to Spearline, request additional User Subscriptions in excess of the number agreed in the applicable Statement of Work. 

2.5.2. If Spearline approves that request (such approval not to be unreasonably withheld or delayed):  

2.5.2.1. Spearline shall grant access to the Services and the Documentation to such additional Authorised Users in accordance with the provisions of this Agreement; and 

2.5.2.2. the Client shall, within 30 days of the date of Spearline’s invoice, pay to Spearline the relevant fees for such additional User Subscriptions as set out in in the applicable Statement of Work and, if such additional User Subscriptions are purchased by the Client part way through the Initial Subscription Term or any Renewal Period (as applicable), such fees shall be pro-rated for the remainder of the Initial Subscription Term or the current Renewal Period (as applicable).

 

3. Services

3.1. Services: Spearline shall provide the Services and make available the Documentation to the Client on and subject to the terms of this Agreement and any individual Statements of Work.

3.2. Additional Work

3.2.1. If Spearline receives reasonable instructions from or on behalf of the Client to carry out additional work to that stated in the applicable Statement of Work or such work is necessary in the circumstances and/or suffers unreasonable and material delay or disruption in the performance of the Services for reasons beyond the reasonable control and due to the activity of Client, the Parties shall discuss in good faith and embody in a signed writing any agreement regarding additional payment to Spearline in respect of the additional work carried out and the additional resources employed and/or the delay or disruption suffered.

3.2.2. Any and all additional payment shall be calculated on the basis of the method of assessing payment under the Agreement or the applicable Statement of Work, or where no such method is set out in the Agreement, payment shall be such sum as is agreed between the Client and Spearline and is reasonable in the circumstances.

3.2.3. No additional work will be carried out without prior written instruction from the Client.

 

4. Charges and payment

4.1. Fees

4.1.1. The Client shall pay the Fees to Spearline for the Services in accordance with this Clause 4 and the applicable Statement of Work.

4.1.2. All Fees due under the Agreement are exclusive of withholding tax, sales tax or value added tax, the amount of which shall be paid by the Client to Spearline at the prevailing rate and in the manner prescribed by law. No value added tax or sales tax will be applied to the invoice if the Client is established outside of the Republic of Ireland.

4.2. Payments

4.2.1. All invoices shall be paid in full by the due date, free of bank, third Party or other charges.

4.2.2. Spearline shall be notified in writing of any disputes relating to an invoice within 21 days of the date of the invoice. Both Parties shall use their reasonable endeavours to resolve any invoice dispute within 90 days of the date of such invoice. If an invoice dispute is not resolved within such 90 days term, the provisions of Clause 16 (dispute resolution) shall apply.

4.3. Default If Client fails to pay to Spearline any amount payable to it under this Agreement on the due date then Client shall pay on demand from time to time to Spearline, interest (as well after as before any judgment) on that amount, from the due date to the date of payment in full, at the rate per cent per annum as may be specified from time to time pursuant to regulation 5 of the European Communities (Late Payment in Commercial Transactions) Regulations 2012 (S.I. No. 580 of 2012).

 

5. Service Commitment

5.1. Service Uptime

Spearline will use commercially reasonable efforts to provide the Cloud Services on a 24 x 7 x 365 basis with a Monthly Uptime Percentage (MUP) of at least 99.99%, excluding up to 120 Maintenance Window minutes.

Spearline will inform the Client of any Maintenance Windows in a timely manner; provided, however, that Spearline shall use reasonable commercial efforts to provide forty-eight (48) twenty-four (24) hours’ notice where reasonably possible under the circumstances. Where possible, such Maintenance Windows will be scheduled outside of normal GMT business hours. 

If Spearline fails to meet its MUP, Spearline shall provide Client credits for the billing period in which Spearline does not meet its MUP (“MUP Credit”), in the following amounts:

MUP

MUP Credit (against Monthly  Fee for the affected Cloud Service)

99.099% – 99.9%

10%

99.90% – 95.0%

25%

95.0% – 90.0%

50%

less than 90 %

100%

 

Notwithstanding anything to the contrary, if Spearline fails to meet its MUP for more than 3 consecutive months, Client shall have the option to terminate the entire Agreement and upon such termination, Client shall receive a refund of all prepaid subscription fees that are unearned as of the date termination is effective.

5.2. Service Uptime Exclusions

The Cloud Services will be deemed available to the Client and is therefore excluded for the purposes of calculating credits if the non-availability arises from, or is otherwise caused or contributed to by, the following circumstances:  

Where the Error is caused by third party activities, such as the unavailability of downstream carriers;

Where the Error is caused by severe weather conditions such as storms, flooding or lightning   (Force Majeure);

Where an Error is due to changes in Client provided apparatus, or due to the malfunction of any element which is owned or maintained by the Client;

Where the Error is not in Spearline’s or its contractors’ networks;

Where the Client or its agents are not available to Spearline, at reasonable notice, for the purpose of conducting diagnostic tests between the Spearline Cloud Services and the Client provided equipment;

Where an Error is reported and no Error is detected when the Service is tested from end to end;

Any Maintenance Windows scheduled as set forth herein;

The Client failing to operate the Service in accordance with the Agreement

A failure of the Client to report the Error in accordance with the Error reporting procedures.

5.3. Service Level Agreement

When an Error is detected by either Party with the Cloud Services, the Error will be promptly classified. Spearline will use reasonable endeavours to provide Initial Responses, Temporary Resolutions and Final Resolutions in accordance with the time requirements (from receipt of initial notice, or other discovery, of the Error) as set forth in the table below.

Incident Level

Definition 

Initial Response

Temporary Resolution

Final Resolution

1

A critical problem with the Cloud Services in which any of the following occur: 

  • the Cloud Services are down, inoperable, inaccessible or unavailable;
  • the Cloud Services otherwise materially cease operation;
  • the performance or nonperformance of the Cloud Services prevents useful work from being done.

1 hour

8 hours 

7 days

A problem with the Cloud Services in which any of the following occur: 

  • the Cloud Services are severely limited or degraded, 
  • major functions are not performing properly, causing a significant impact to certain portions of the Clients operations or productivity; 
  • the Cloud Services have been interrupted but recovered, and there is a high risk of recurrence. 

2 hours

3 days

14 days 

A minor or cosmetic problem with the Cloud Services in which any of the following occur: 

  • the problem is an irritant, affects non-essential functions, has minimal impact to business operations; 
  • the problem is localized or has isolated impact; 
  • the problem is an operational nuisance;
  • the problem results in documentation errors; 
  • the problem is any other problem that is not a Severity 1 or Severity 2, but is otherwise a failure of the Cloud Services to conform to its Specifications.

3 hours

7 days 

30 days 

4

A query regarding the result of specific Test Calls or guidance in relation to functionality of the Services

4 hours

3 days

7 days 

6. Customer Support

6.1. 24/7 Support

The Service is proactively monitored by Spearlines dedicated Support team (“Support”) on a 24/7 basis. 

Tasks performed by Support include:

  • Troubleshooting tickets received and escalating issues to the correct party when needed
  • Adding / removing users, assisting with login queries
  • Billing / Finance queries

Engineering Support is available 08:30 to 17:30 Irish Time Monday to Friday unless otherwise agreed in writing. Examples of Engineering Support include,

  • User Interface / Report customisation
  • Enhancements or amendments to the Services, or other software developments (“Bespoke Development”)
  • Data Validation
  • Script writing, debugging, analysis and feedback
  • Test configuration and tuning to support higher loads

6.2. Customer Engagement Manager

Spearline will provide a “Customer Engagement Manager” who will serve as the point of contact for the Client. The Customer Engagement Manager will: 

  • Setup Client on Spearline Platform, including training of Client users;
  • Onboard Client to ensure the necessary Client personnel are trained to use the Services;
  • Establish and implement procedures in collaboration with Client;
  • Conduct regular scheduled meetings with Client to remain up-to-date with Client issues and future requirements.
  • Produce regular and ad-hoc reports as agreed with the Client.
  • Ensure that the Services are delivered with flexibility in order to adapt to changing business conditions or quality issues.
  • Liaise with Spearlines 24/7 Support team to ensure testing procedures are followed and to troubleshoot issues on behalf of the Client.
  • Ensure Client is receiving Spearlines optimum service and measurable ROI from testing.
  • Assist the Client to investigate and troubleshoot errors found through the designated reporting procedures, including liaising with network carriers, vendors, etc;
  • Provide other reasonably appropriate assistance as defined by the Client.

7. Client Data

7.1. Ownership: The Client shall own all right, title and interest in and to all of the Client Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Client Data.

7.2. Back-up: Spearline shall follow its archiving and back-up procedures for Client Data. In the event of any loss or damage to Client Data, the Client’s sole and exclusive remedy shall be for Spearline to use reasonable commercial endeavours to restore the lost or damaged Client Data from the latest back-up of such Client Data maintained by Spearline in accordance with its archiving and back-up procedure. Spearline shall not be responsible for any loss, destruction, alteration or disclosure of Client Data caused by any third party (except those third parties sub-contracted by Spearline to perform services related to Client Data maintenance and back-up).

7.3. Data Protection: It is not envisaged that Spearline shall act as a processor of personal data on behalf of the Client. If and to the extent that Spearline acts, in the course of the provision of the Services to the Client, as a data processor on behalf of the Client, the Parties shall comply with the Data Processing Agreement in relation to the processing of personal data comprised in the Client Data.

 

8. Spearline’s obligations

8.1. Standards: Spearline undertakes that the Services will be performed substantially in accordance with the Documentation and Specifications (if applicable) and with reasonable skill and care. Notwithstanding any responsibilities and obligations which the Client may have under any other contract or at law, nothing in the Agreement or a Statement of Work or in any proposal, report or other document is to be construed as a warranty or guarantee by Spearline other than to use (or have used) reasonable skill, care, and diligence. 

8.2. Non-conformance: The undertaking at Clause 8.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to Spearline’s instructions, or modification or alteration of the Services by any party other than Spearline or Spearline’s duly authorised contractors or agents. If the Services do not conform to the foregoing undertaking, Spearline 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 accomplishing the desired performance. Such correction or substitution constitutes the Client’s sole and exclusive remedy for any breach of the undertaking set out in Clause 8.1.  Notwithstanding the foregoing, Spearline:

8.2.1. does not warrant that the Client’s use of the Services will be uninterrupted or error-free; or that the Services, Documentation and/or the information obtained by the Client through the Services will meet the Client’s requirements; and

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

8.3. No exclusivity: This Agreement shall not prevent Spearline 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.

8.4. Insurance: Spearline shall effect and maintain at all times during the currency of this Agreement and for a period of 12 months following its termination (at its own expense) general liability insurance, subject to all exceptions, exclusions and limitations to the scope of cover that are commonly included in such insurance at the time it is taken out or renewed as the case may be. When reasonably requested to do so Spearline shall provide a brokers’ certificate as evidence that such insurance is being maintained.

 

9. Client’s obligations

The Client shall:

9.1.1. provide Spearline with:

9.1.1.1. all necessary co-operation in relation to this Agreement; and

9.1.1.2. all the information and things in the possession of the Client or any of the Client’s agents or contractors and any instructions, decisions, consents, approval or access to property and use of facilities, subject to the Client’s prior written authorisation, as described in (or reasonably to be inferred from) the Agreement and necessary for the performance of the Services by Spearline in a timely fashion so as not to delay or disrupt the performance of the Services and without charge.  All information provided shall be subject to the provisions of Clause 11 (confidentiality);

in order to provide the Services, including but not limited to Client Data, security access information and configuration services;

9.1.2. comply with all applicable laws and regulations with respect to its activities under this Agreement;

9.1.3. 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, Spearline may adjust any agreed timetable or delivery schedule as reasonably necessary;

9.1.4. ensure that the Authorised Users use the Services and the Documentation in accordance with the terms and conditions of this Agreement and shall be responsible for any Authorised User’s breach of this Agreement;

9.1.5. obtain and shall maintain all necessary licences, consents, and permissions necessary for Spearline, its contractors and agents to perform their obligations under this Agreement, including without limitation the Services;

9.1.6. ensure that its network and systems comply with the relevant specifications provided by Spearline from time to time; and

9.1.7. be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to Spearline’s data centres, 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.

 

10. Proprietary rights

10.1. The Client acknowledges and agrees that:

10.1.1. Spearline and/or its licensors own all intellectual property rights in the Services, Software and the Documentation. Except as expressly stated herein, this Agreement does not grant the Client any rights to, or in, patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services or the Documentation; 

10.1.2. the Intellectual Property Rights in the Services, the Software and the Documentation including any adaptations, modifications and updates to the same are and shall remain vested in Spearline, whether created by the Client or Spearline. The Client assigns (by way of present and, where appropriate, future assignment) all such Intellectual Property Rights to Spearline.

10.1.3. the Client shall do and execute, or arrange for the doing and executing of, each necessary act, document and thing that Spearline may consider necessary or desirable to perfect the right, title and interest of Spearline in and to the Intellectual Property Rights in the Services, the Software, and/or the Documentation provided by Spearline and including any adaptations, modifications and updates to same.

 

11. Confidentiality

11.1. Confidential Information: Each party may be given access to Confidential Information from the other party in order to perform its obligations under this Agreement or an individual Statement of Work.  A party’s Confidential Information shall not be deemed to include information that:

11.1.1. is or becomes publicly known other than through any act or omission of the receiving party;

11.1.2. was in the other party’s lawful possession before the disclosure;

11.1.3. is lawfully disclosed to the receiving party by a third party without restriction on disclosure;

11.1.4. is independently developed by the receiving party, which independent development can be shown by written evidence; or

11.1.5. is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.

11.2. Use: Each party shall hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of this Agreement.

11.3. Compliance by employees: Each Party shall ensure that its employees or agents are made aware before the disclosure of any part of the Confidential Information that the same is confidential and that they owe a duty of confidence to the other Party.

11.4. No Liability for Third Party Actions: Neither Party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third Party.

11.5. Spearline Confidential Information: The Client acknowledges that details of the Services, Software and/ or Documentation constitute Spearline’s Confidential Information.

11.6. Client Data: Spearline acknowledges that the Client Data is the Confidential Information of the Client.

 

12. Indemnity

12.1. Client Indemnity: The Client shall indemnify and keep indemnified Spearline on demand from and against any Losses arising out of or in connection with the Client’s use of the Services and/or Documentation, provided that:

12.1.1. the Client is given prompt notice of any such claim;

12.1.2. Spearline provides reasonable co-operation to the Client in the defence and settlement of such claim, at the Client’s expense; and

12.1.3. the Client is given sole authority to defend or settle the claim.

 

13. Limitation of liability

13.1. Scope: This Clause 13 sets out the entire financial liability of Spearline (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Client:

13.1.1. arising under or in connection with this Agreement, any and all Statements of Work and the Data Processing Agreement;

13.1.2. in respect of any use made by the Client of the Services, Software and Documentation or any part of them; and

13.1.3. in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Agreement and the Data Processing Agreement.

13.2. Service provided as is: Except as expressly and specifically provided in this Agreement:

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

13.2.2. 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, any individual Statement of Work and the Data Processing Agreement; and

13.2.3. the Services and the Documentation are provided to the Client on an “as is” basis.

13.3. Losses not excluded: Nothing in this Agreement excludes the liability of Spearline:

13.3.1. for death or personal injury caused by Spearline’s negligence; or

13.3.2. for fraud or fraudulent misrepresentation. 

13.4. Certain losses excluded: Subject to Clause 13.2 and Clause 13.3, Spearline shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under any of this Agreement, any and all Statements of Work or the Data Processing Agreement.

13.5. Financial Limit: Subject to Clause 13.2 and Clause 13.3, Spearline’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement and the Data Processing Agreement shall be limited to the amount of the Fees actually paid to Spearline for Services under this Agreement in the 12-months preceding the event (capped at a maximum of €1m) which gave rise to such liability.

 

14. Term and termination and Suspension

14.1. Term: This Agreement shall commence on the Effective Date and shall continue until the earlier of:

14.1.1. the date that all Statements of Works have terminated or expired; or 

14.1.2. this Agreement is terminated pursuant to this Clause 14. 

Upon any termination or expiry of this Agreement, all Statements of Works shall immediately terminate unless otherwise agreed between the Parties in writing.

14.2. Early Termination: Either party (each a “terminating party”) may terminate this Agreement and any and all individual Statements of Work forthwith upon written notice to the other party (a “defaulting party”) to that effect if: 

14.2.1. the defaulting party commits a breach of its obligations under this Agreement which breach is (in the opinion of the terminating party) material and, where such breach is (in the opinion of  the terminating party) capable of remedy, fails to remedy that breach within 14 days of having been given notice by the terminating party to remedy that breach; or 

14.2.2. the defaulting party is, or is deemed for the purposes of any relevant law to be, unable to pay its debts as they fall due or to be insolvent, or admits inability to pay its debts as they fall due; or the defaulting party suspends making payments on all or any class of its debts or announces an intention to do so, or a moratorium is declared in respect of any of its indebtedness; or

14.2.3. any step (including the making of any proposal, the convening of any meeting, the passing of any resolution, the presenting of any petition or the making of any order) is taken with a view to a composition, assignment or arrangement with any creditors of, or the winding up, liquidation or dissolution of, the defaulting party; or any liquidator, provisional liquidator, receiver or examiner is appointed to or in respect of the defaulting party or any of its assets; or

14.2.4. under Clause 15 (force majeure). 

14.3. Consequences of Termination: On termination of this Agreement and/or any individual Statement of Work for any reason:

14.3.1. all licences granted under this Agreement or the individual Statement of Work shall terminate with effect from the date of termination; 

14.3.2. each party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party;

14.3.3. the Client shall remove and backup all Client Data within 10 days of the date of termination;

14.3.4. Spearline shall be entitled destroy or otherwise dispose of any of the Client Data in its possession after the tenth day following the date of termination. 

14.4. Suspension of Services: If the Client fails to pay Spearline in full any amount properly due and payable under this Agreement and/ or any Statement of Work after seven (7) days’ written notice of such failure, Spearline (without prejudice to its other rights and remedies), may suspend performance of the Agreement and the respective Statement of Work at its sole discretion and upon prior written notice until payment in full of the amount due.

14.5. Consequences of Suspension of Services: Any period during which Spearline’s performance is suspended in pursuance of, or in consequence of the exercise of its right to suspend its performance under Clause  14 above shall be disregarded in computing for the purposes of any contractual time limit the time taken by Spearline, or any of Spearline sub-contractors, to complete any Services directly or indirectly affected by the exercise of such right. The Client shall also be liable for any amount in respect of costs and expenses reasonably incurred by Spearline as a result of such suspension.

14.6. Survival of Obligations: The provisions of this Clause 14 and Clauses 1 (interpretation), 11 (confidentiality) 13 (limitation of liability) 17 (governing law and jurisdiction) 18 (communications) and, to the extent applicable 19 (general) shall survive the termination this Agreement however it arises, and shall continue to bind the parties or the relevant party (as applicable) without limit in time.

14.7. Accrued Rights: Termination of this Agreement shall not affect any rights of the parties accrued up to the date of termination.

 

15. Force majeure

Spearline shall have not be liable to the Client for any failure or delay in the performance of any of its obligations under this Agreement which is caused by an Event of Force Majeure provided, however, that Client shall not be responsible for payment of any Fees related to Services not rendered. If performance of a material obligation of Spearline under this Agreement is prevented by an Event of Force Majeure for a continuous period of 90 days or more, then the Client shall be entitled, by the giving of notice in writing to Spearline, immediately to terminate this Agreement.

 

16. Dispute Resolution

16.1. Escalation: In the event of a dispute between the parties under this Agreement or any individual Statement of Work, the matter shall be referred in writing in the first instance to the person identified for this purpose in the relevant Statement of Work (or equivalent of the parties with a view to it being resolved in good faith.

  

16.2. Court Determination: If the dispute cannot be resolved within 10 business days of the dispute being referred as described above, or such other longer period as may be agreed upon between the parties in writing, either of the Parties in dispute may refer the matter to court (and the provisions of Clause 17 shall apply).  

16.3. Injunctive Relief: No Party shall be obliged to follow the procedures set out in Clause 16.1 above where that Party intends to apply for injunctive relief against the other for the purpose of protecting is proprietary rights or confidential information, or from instituting proceedings to ensure that the relevant claim falls within the relevant limitation period.

 

17. Governing Law and Jurisdiction

17.1. Governing Law: This Agreement and any non-contractual obligations arising out of or in connection with it shall be governed by and construed in accordance with Irish law.

17.2. Jurisdiction: The Irish courts shall have non-exclusive jurisdiction to hear, determine and settle any dispute arising out of or in connection with this Agreement and the parties submit to the jurisdiction of the Irish courts for that purpose.

17.3. Convenient Forum: The parties waive any objection to the Irish courts on grounds that they are an inconvenient or inappropriate forum to settle any such dispute.

17.4. Waiver of Jury Trial: Each party irrevocably and unconditionally waives, to the fullest extent permitted by applicable law, any right it may have to a trial by jury in any legal action or proceeding arising, directly or indirectly, out of or relating to this Agreement or the transactions contemplated by it and for any counterclaim therein (in each case whether based on contract, tort or any other theory and whether predicated on common law, statute or otherwise).  Each party 

17.4.1. certifies that no representative, agent or attorney of the other party has represented, expressly or otherwise, that the other party would not, in the event of litigation, seek to enforce the foregoing waiver and 

17.4.2. acknowledges that it and the other party have been induced to enter into this Agreement by, amongst other things, the mutual waivers and certifications in this Clause 17.

 

18. Communications

18.1. Service: Notices and other communications under or in connection with this Agreement shall be given in writing by hand, by airmail, registered courier or by e-mail, save that service of any notice of any claim, dispute, termination, breach or legal proceedings in connection with this Agreement shall not be made by e-mail.  Any such notice, if so given, shall be deemed to have been served: 

18.1.1. if sent by hand, when delivered;

18.1.2. if sent by airmail or registered courier, three business days after despatch; and

18.1.3. if sent by e-mail, six hours after sending provided the sender has not received notice of failed or delayed delivery.   

18.2. Contact Details: The address, telephone number and facsimile number of each  party for the purpose of the giving of notices under this Agreement shall be that set forth in Schedule 1 in relation to each party (or such other address or number or address (if any) as has, for the time being, most recently been stipulated by the addressee concerned in a notice to the other party given in accordance with this Clause): 

 

19. General

19.1. Severability: If the whole or any part of a provision of this Agreement is or becomes illegal, invalid or unenforceable under the law of any jurisdiction, that shall not affect the legality, validity or enforceability under the law of that jurisdiction of the remainder of the provision in question or any other provision of this Agreement and the legality, validity or enforceability under the law of any other jurisdiction of that or any other provision of this Agreement. 

19.2. Assignment: The Client shall not, without the written consent of Spearline: 

19.2.1. assign, transfer (whether voluntarily or involuntarily, by operation of law or otherwise) or create or permit to exist any right, title or interest (including, without limitation, any security interest and any beneficial interest under any trust) in, to or under, any of its rights under this Agreement; or

19.2.2. purport to transfer, sub-contract or delegate any of its obligations under this Agreement. 

19.3. Further Assurance:  Each party shall (at its own cost) do and execute, or arrange for the doing and executing of, each necessary act, document and thing as may be reasonably requested of it by any other party to implement this Agreement.

19.4. Standard form Documents: The parties recognize that printed form purchase orders, invoices and other commonly used form documents relating to the performance of any obligations hereunder may contain terms which conflict with one or more terms of this Agreement.  In case of any such conflict, the relevant terms of this Agreement shall prevail.

19.5. No Partnership or Agency: Nothing in this Agreement shall create, or be deemed to create, a partnership, joint venture, or the relationship of principal and agent, between the parties, and neither party shall have any right or authority to act on behalf of the other or to bind the other in any way.

19.6. Language: This Agreement is made only in the English language. If there is any conflict in meaning between the English language version of this Agreement and any version or translation of this Agreement in any other language, the English language version shall prevail.  Each document and communication referred to in this Agreement or to be delivered under it shall be in the English language or, if not, accompanied by an English translation of it, certified as accurate by an officer of the party issuing that document or communication; and in the case of conflict between English language version and any other version, English language version shall prevail.

19.7. Electronic Signatures: The parties consent to the execution of this Agreement by or on behalf of each other Party by electronic signature, provided that such manner of execution is permitted by law. The parties:

19.7.1. agree that an executed copy of this Agreement may be retained in electronic form; and 

19.7.2. acknowledge that such electronic form shall constitute an original of this Agreement and may be relied upon as evidence of this Agreement.

19.8. Counterparts: This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument.   The expression “counterpart” shall include electronic counterparts and any executed copy of this Agreement transmitted electronically in Portable Document Format (PDF) or equivalent. Transmission of an executed counterpart of this Agreement (or of the executed signature page of a counterpart of this Agreement), whether executed by wet ink or electronic signature, by physical delivery or email, constitutes effective delivery of this Agreement for all purposes.

19.9. Sole and Entire Agreement: The express terms of this Agreement, a particular Statement of Work and the Data Processing Agreement constitute the sole and entire agreement between the parties in relation to the provision of the Services and supersedes all prior written and oral arrangements, understandings, representations, warranties and agreements between them in that regard (if any).  Each party acknowledges that it is not relying, and will not seek to rely, on any arrangement, understanding, representation, warranty, agreement, term or condition which is not expressly set out in this Agreement or an individual Statement of Work.

19.10 Waivers, Rights Cumulative: Each of the rights of each party under this Agreement may be exercised as often as is necessary, is cumulative and not exclusive of any other rights which that party may have under this Agreement, law or otherwise; and may be waived only in writing and specifically.  Delay by a party in exercising, or the non-exercise by a party of, any such right shall not constitute a waiver of that right.

19.11. Amendments: Any amendment to this Agreement must be in writing and duly signed for and on behalf of each of the parties to this Agreement.

Date – August 2022