GENERAL TERMS AND CONDITIONS 

Cognate Health Limited a private company limited by shares registered in Ireland (registered number 557338) having its registered office at Elm Court, Boreenmanna Road, Cork, T12 HHW2, Ireland (the “Company”) is a company providing healthcare services. 

The Client (whose details are set out in the Application Form) wishes to use the Platform and obtain other services from the Company relating to certain healthcare and health advisory services provided by the Company subject to these terms and conditions. 

By using the Platform and availing of the Services the Client agrees to be bound by the following terms: 

1. DEFINITIONS AND INTERPRETATION 

1. In this Agreement, unless otherwise stated: 

“Affiliate” means an entity which controls, is controlled, or is under common control with a party or any other entity controlled by such party, where “control” means: (a) the indirect or direct or beneficial ownership of a voting interest of at least fifty percent (50%) (or in a jurisdiction where majority ownership is prohibited by law, the maximum ownership percentage permitted by law); or (b) the right or power, directly or indirectly, to elect a majority of the board of directors (or equivalent); or (c) the right or power to control management; 

“Agreement” means these terms and conditions and all other documents attached or otherwise incorporated into this Agreement all as amended from time to time in accordance with the terms hereof;  

“Appointment” means an appointment booked by a Referring Manager through the Platform for an OHP Assessment or other Occupational Health Service; 

“Assessment Fee” means the fees to be paid in advance by the Client or by a Referring Manager for and on behalf of the Client for an OHP Assessment or other Occupational Health Service; 

 “Business Day” means any days other than Saturday or Sunday, or a bank or public holiday in Ireland; 

“Confidential Information” means, subject to clause 9.4, this Agreement and any information, however conveyed or presented, that relates to: (a) products, services, processes software applications, algorithms, tools, reporting, operations, business, affairs, strategies, business models and plans, analyses, compilations, pricing, budgets, promotions, developments, trade secrets, know-how, sales and marketing information, financial information, technical information and data of the owner Party, its Affiliates, or its customers or suppliers; (b) all information derived from, containing or reflecting any information under paragraph (a); and (c) any other information clearly designated by a Party as being confidential to it (whether or not it is marked ‘confidential’), or which ought reasonably be considered to be confidential; 

“Commencement Date” means the date on which the Client first engages the Company to provide the Services, whether through the Platform or otherwise; 

“Client Material” means all documents, information and data (however stored) that is provided by the Client to the Company for the purposes of this Agreement and performing the Services; 

“Data Protection Legislation” means all laws relating to data protection, privacy, data security or electronic marketing including: (i) the Data Protection Act 1988 and 2018 and all other applicable national laws, regulations and secondary legislation implementing European Directive 95/46/EC; (ii) the GDPR and all related national laws, regulations and secondary legislation, including the Data Protection Act 2018; and (iii) the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2003/2426) and all other applicable national laws, regulations and secondary legislation implementing European Directive 2002/58/EC, in each case as amended, replaced or updated from time to time and together with any subordinate or related legislation made under any of the foregoing; 

“Disclosing Party” has the meaning given to it in clause 9.1; 

“Dispute” means any disputes, differences of opinion, matters and/or disagreements arising out of, in connection with or relating to the Services or this Agreement and/or its performance in any way; 

“Fees” has the meaning given to it in clause 4.1; 

“Force Majeure Event” has the meaning given to it in clause 15.1; 

“Intellectual Property Rights” means all intellectual and industrial property rights including without limitation patents, registered trademarks and designs, copyright (present and future), domain names, applications for any of the foregoing, trade and business names, rights in get-up, service marks, unregistered trademarks, goodwill in relation to the foregoing, database rights, sui generis rights, rights in designs (whether registerable or not), ideas, inventions, mask works, formulas, source and object codes, data, programs, concepts, improvements to existing technology, processes, systems, topographies, topography rights, rights in maps, drawings, plans, costings, layout files, rights in computer software, rights in hardware, rights in products and services, rights in confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals and extensions of, such rights and all similar or equivalent rights or forms of protection which now or in the future subsist in any part of the world; 

“Insolvency Event” means if a Party is bankrupt, has a petition presented for its winding up, has a liquidator appointed to it or has a receiver or an examiner appointed to it or over part or all of its assets or enters into a composition with its creditors (except for the purposes of a bona fide reconstruction or amalgamation on terms approved in advance by the other Party), and/or the Party is unable to pay its debts as they fall due within the meaning of section 570 of the Companies Act 2014 (or any event similar to the foregoing occurs in any jurisdiction); 

“OHP Assessment” means an occupational health assessment of a Referee carried out by an OHP Assessor; 

“OHP Assessor” means one of the Company’s trained medical Personnel that are engaged by the Company to carry out OHP Assessments and related Services; 

“Payment Form” means the payment form hosted on the Platform and through which the Assessment Fee is paid; 

“Payment Processor” means the Third Party Platform used by the Company to process any payment of Fees made by the Client; 

“Personal Data” has the meaning given thereto under the Data Protection Legislation and for the purposes of this Agreement shall include any Personal Data of any Referee; 

“Personnel” means all employees, contractors, consultants or any other third parties acting in a representative capacity on behalf of a Party such as agents and independent contractors (including subcontractors) of a Party; 

“Platform” means the means the Company’s online platform for engaging with the Client and its Referring Managers for making and handling Appointments, OHP Assessments and other matters relating to the Services; 

“Receiving Party” has the meaning given to it in clause 9.1; 

“Referee” means the Client’s Personnel who is receiving an OHP Assessment or other Occupational Health Service as stated on the Referral Form; 

“Referral Form” means the application referral form to be filled out by a Referring Manager seeking to make an Appointment for a Referee; 

“Referring Manager” means the Client’s employees and other Personnel who are authorised by the Client to use the Platform to make Appointments; 

“Reports” means any reports, data and information generated by the Company for the Client as part of an OHP Assessment or otherwise as part of the Services; 

“Services” means any OHP Assessment or any additional or ancillary services to be provided by the Company to the Client’s Personnel as may be agreed between the Parties in writing from time to time, including but not limited to pre-employment medical assessments, ergonomics assessments, vaccination services and other specialised medical assessments; 

“Term” has the meaning given thereto under clause 2.1; and 

“Third Party Platform” means any third party ecommerce or other software platform. 

2. In this Agreement, unless otherwise stated: 

1. any reference to a statute shall, unless the context otherwise requires, be construed as a reference to that statute as from time to time amended, consolidated, modified, extended, replaced or re-enacted together with any secondary legislation made thereunder as from time to time amended, consolidated, modified, extended, replaced or re-enacted; 

2. except as otherwise provided herein, any reference to a section, clause, paragraph or sub-paragraph shall be a reference to a section, clause, paragraph or sub-paragraph (as the case may be) of this Agreement; 

3. unless the context otherwise requires, words importing the singular include the plural and vice versa, words importing the masculine include the feminine and vice versa and words importing persons include corporations and vice versa; 

4. the headings in this Agreement are inserted for convenience of reference only and shall not be considered a part of, or affect the construction or interpretation of this Agreement;  

5. the word “including” shall mean including without limitation or prejudice to the generality of any description, definition, term or phrase preceding that word, and the word “include” and its derivatives shall be construed accordingly; and 

6. any times specified for the performance of any act, deed or thing (other than in respect of payment obligations) shall be estimates only and time for performance by the Company hereunder shall not be of the essence of this Agreement. 

2. TERM 

1. Subject to earlier termination in accordance with the terms of this Agreement, this Agreement shall come into force on the Commencement Date and shall remain in force until the later of: (i) such time as all the Fees have been paid; or (ii) all the Services have been performed and shall thereafter automatically terminate without notice (the “Term”).  

3. MAKING AN APPOINTMENT 

1. Appointments may only be made by Referring Managers, whether for themselves or for other Personnel of the Client.  

2. An Appointment may only be made by completing and returning a valid Referral Form and a Payment Form to the Company via the Platform or as otherwise directed on the Referral Form or Payment Form (as applicable). The reason for an Appointment should be discussed with the Referee in advance of the Appointment. The Client shall ensure that the Referee is fully aware of and has previously consented to the submission of the Referral Form and all details and information provided therein in accordance with this Agreement and all Data Protection Legislation. The Client shall indemnify the Company in full against any and all loss, costs or charges sustained or incurred by the Company due to any failure or non-compliance by the Client of the provisions of this clause 3.2. 

3. Within two (2) Business Days of submitting a properly completed Referral Form, the Company shall issue the Client and the Referee an email including confirmation of the Appointment and the relevant details of the Appointment such as time, date, location and the Services being provided (the “Confirmation Email”). Appointment details may be sent to both the Referring Manager who submitted the Referral Form and the Referee however it is the responsibility of the Client and it’s Referring Manager who submitted the Referral Form to ensure that the Referee is aware of the Appointment and confirm their attendance. 

1. The Client shall be responsible to the Company for ensuring the accuracy of any information provided in respect of an Appointment, whether included in the Referral Form, Payment Form or otherwise submitted by a Referring Manager or Referee and/or confirmed and/or quoted by the Company, including but not limited to the details included in the Confirmation Email. Accordingly, the Company has no liability or responsibility howsoever arising directly or indirectly to the Client or any Referring Manager or Referee in respect of any inaccurate or missing information provided to the Company during the Term. 

Cancellation 

1. The Client may cancel an appointment not later than 48 hours prior to the time of the Appointment without charge (a “Cancellation”). In circumstances where the relevant Fees have been paid prior to any such Cancellation, the Company shall reimburse the Client for such Fees to the credit card to book the Appointment. The Client shall not be entitled to any repayment of Fees in circumstances where the Client seeks to cancel an Appointment within 48 hours of the time of such Appointment. 

4. FEES AND PAYMENT 

Fees 

1. The Assessment Fee, together with any and all other fees for the provision of the Services are as set out on the Platform and the Payment Form (together, the “Fees”).  

Payment  

2. Upon submission of a Referral Form the Company shall send an email to the Referring Manager who submitted the Referral Form including an email link to the Payment Form. The Client must procure that its Referring Manager accurately and fully completes the Payment Form prior to the Appointment. The Company shall be entitled to cancel any Appointment for which the Fees have not been paid for in full and in advance by the Client. 

3. The Client shall pay all Fees prior to the Appointment and as instructed in the Payment Form and via the Platform. Each invoice from the Company shall contain sufficient detail to reasonably enable the Client to verify the Fees shown in such invoice. If the Client disputes an invoice it shall not be obligated to pay the disputed amount until the dispute is resolved, however it must pay all undisputed amounts by the due date.  If the Client disputes any amounts of the Fees it shall raise such disputes with the Company prior to the relevant Appointment. Save as expressly provided herein, all Fees payable under this Agreement are non-refundable. 

4. The Client shall engage with the Company’s chosen Payment Processor as directed by the Company via email or via the Platform in order to pay the Fees as required. The Client is solely responsible for ensuring full and final payment of the Fees via the Payment Processor and the Company shall have no liability to the Client in respect of the Client’s engagement with the Payment Processor or any other Third Party Platform the Client is required to engage with in order to create an Appointment, pay the Fees, obtain the Services or otherwise. 

Receipts 

5. The Company shall send an email VAT receipt to the Client following successful payment of the Fees for each Appointment to such email address as the Client (or its Referring Manager) nominates.    

Payment Disputes 

6. If Client does not pay any undisputed amount due under the Agreement by its due date and remains in default 10 days or more after being notified to make such payment, the Company may, without limiting any other right or remedy it may have under the Agreement or otherwise: (a) charge interest on the overdue amount at the rate of 7.5% per cent per annum above the base rate of the European Central Bank (ECB) from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment.  

Fee Changes 

7. The Company will charge the Fees at its then prevailing rates. The Company from time to time may review and vary its rates and/or the Fees which shall be updated on the Company’s website and the Platform. 

8. In certain limited circumstances, the Company may need to revise the Fees being provided for the Services depending on the amount of time required, its complexity, the urgency with which it must be addressed, any travel required, the skill, specialised knowledge, responsibility and time required of the occupational physician/occupational health nurse/account manager involved. In these circumstances the Company shall notify the Client of any additional Fees that may be involved in providing the Services and the Client shall have two (2) Business Days to confirm acceptance of such increased Fees in writing, or alternatively, to refuse the increased Fees, upon which the Company will no longer provide the Services and this Agreement shall automatically terminate.  

Payment on Termination / Expiry 

9. All sums payable by Client under the Agreement shall become due and payable in full immediately on termination or expiry of this Agreement. 

Taxes & Withholding 

10. All sums payable by the Client to the Company under this Agreement: 

1. are exclusive of all applicable taxes, including, but not limited to, sales, use, excise, value-added tax, goods and services, consumption and other similar taxes or duties, and the Client shall in addition pay an amount equal to any taxes chargeable on those sums on delivery of an applicable invoice for the Services to which they relate; and 

2. shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law). 

Third Party Fees 

11. The Client shall be solely responsible for the payment of all fees, additional charges and costs associated with the provision of any Third Party Platforms (“Third Party Fees”), unless such Third Party Fees are expressly included in the Fees and payment is made by the Company as part of the Services. 

5. PLATFORM 

6. Subject to compliance by the Client with the terms of this Agreement, the Company hereby grants to the Client a non-exclusive, non-transferable right to access and use the Platform during the Term for the purposes of its operations but not otherwise. 

7. All Intellectual Property Rights in the Platform shall, as between the Parties, belong and shall be the exclusive property of the Company or its relevant third party owners (as the case may be). For the avoidance of doubt, the Client shall have no rights in or to the Company Platform other than the right to use it in accordance with the terms of this Agreement and the Client has no right to access the object code or source code of the Company Platform, either during or after the Term. 

3. The Client shall prevent any unauthorised access to, or use of, the Platform and, in the event of any such unauthorised access or use shall promptly notify the Company. 

4. For the avoidance of doubt, the rights granted to the Client hereunder with respect to the Platform are specific to the Client and its Referring Managers only. 

5. The Client agrees that access to the Platform is provided to the Client on an “as is” basis. 

6. SUPPLIER RESPONSIBILITIES 

1. The Company shall: 

1. perform its obligations under this Agreement in a professional and workmanlike manner consistent with applicable industry standards; and 

2. provide the Services, and perform its other obligations under this Agreement subject to, and in accordance with, all applicable laws, statutes, and regulations from time to time in force. 

2. The Company shall allocate suitable Personnel with appropriate levels of skill, experience and training to provide the Services and the Client acknowledges and agrees that it may from time to time be necessary for Company to replace these Personnel with alternative Personnel with similar levels of skill and experience. 

3. The Company does not warrant the accuracy of any of the information and documentation contained in the Reports. The Reports have been provided for informational and educational purposes only and are not to be relied on by the Client, the Referee or any Client Personnel for any other purpose. Accordingly, the Reports should only be used to support and assist the Client and the Referee. It is not intended to override the personal or professional judgment of the Client or its Personnel or be used in place of any professional advice, policies or procedures of the Client regarding the Referee for any purpose. The Client and its Personnel must utilise their own judgment in reviewing the content of any Reports, and the Company shall not be responsible or liable for any actions taken by the Client, Referee or any Client Personnel based on any information provided in a Report. 

4. The Company shall provide the Reports to the Client and the Referee following completion of the OHP Assessment. The Client represents and warrants that it has obtained the Referee’s prior written consent for the Company to share such Reports with the Client. 

5. All timelines provided by the Company for the booking of Appointments and provision of any Services and any Reports are of an indicative nature only. The Client shall not be entitled to repayment of any Fees or to rescind or terminate this Agreement for any unforeseen delays in making an Appointment or providing any Services or Reports. 

7. CLIENT RESPONSIBILITIES 

1. The Client represents and warrants that any Referring Managers have the capacity and authority to submit Referral Forms, Payment Forms, arrange Appointments for and on behalf of Referees and agree and conclude any arrangements for the provision of Services hereunder for and on behalf of the Client. 

2. The Client shall:  

1. pay the Fees to the Company as provided in clause 4 as noted on the Platform or otherwise notified to the Client in writing (including email); 

2. co-operate with the Company in all matters relating to the Services; 

3. assist the Company in the performance of the Services on a prompt and timely basis including making available to the Company in a timely manner all assistance, documents, information, data, items and other materials in any form (whether owned by the Client or third party) required by the Company in connection with the Services. The Client shall be responsible for ensuring that all such information, data and materials are accurate and complete;  

4. grant the Company access to premises, Client Personnel and all facilities during the Client’s normal business hours and as otherwise reasonably required by the Company to perform the relevant Services in accordance with this Agreement; 

5. perform its obligations under this Agreement subject to, and in accordance with, all applicable laws, statutes, and regulations from time to time in force; 

6. obtain and maintain all necessary licences and consents and comply with applicable laws as required to enable the Company to provide the Services;  

7. obtain the relevant authorisations and consents (whether required under Data Protection Legislation or otherwise) from the Client’s Personnel as may be required to complete a Referral Form and obtain an Appointment and for the Company to provide the Services in compliance with all applicable laws, statutes, and regulations from time to time in force; and 

8. act reasonably and in good faith in relation to its, and the Company’s, rights and obligations under this Agreement. 

The Company is not responsible for the acts and the omissions of the Client in the course of or arising from the performance of Client’s obligations under this Agreement. If the Company’s performance of its obligations under this Agreement is prevented or delayed by the acts and/or omissions of the Client, the Company shall be relieved of that obligation for the period of time and to the extent that any unresolved Client failure impacts the Company’s performance and the Company shall not be liable for any costs, charges, or losses sustained or incurred by the Client that arise directly from such prevention or delay. 

8. DATA PROTECTION 

1. The Company shall comply with all applicable requirements of the Data Protection Legislation. This clause 8 is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation. 

2. The Parties acknowledge that for the purposes of the Data Protection Legislation, the Client is the Controller and the Company is a Processor (where Controller and Processor have the meanings as defined in the Data Protection Legislation). The parties acknowledge that any data hosting services used by the Client will be a separate Processor and not a sub-processor of the Company. 

3. Without prejudice to the generality of clause 8.1, the Client will ensure that it has a lawful basis and all necessary notices in place to enable lawful transfer of the Personal Data to the Company for the duration and purposes of this Agreement. 

4. Without prejudice to the generality of clause 8.1, the Company shall, in relation to any Personal Data processed in connection with the performance by the Company of its obligations under this Agreement: 

1. ensure that it has in place appropriate technical and organisational measures in accordance with Best Industry Practice as may be reviewed and approved by the Client from time to time, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it); 

2. ensure that all Company Personnel who have access to and/or process Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality; 

3. excluding any access to or use of the Company Software by any of the Licensed Users from a country outside of the European Economic Area (EEA) or routing of emails outside of the Company’s control, not transfer any Personal Data outside of the EEA without the documented instructions of the controller and where the following conditions are fulfilled: 

1. the Client or the Company has provided appropriate safeguards in relation to the transfer; 

2. the Data Subject has enforceable rights and effective legal remedies; 

3. the transfer of such Personal Data outside of the EEA does not breach any provisions of the Data Protection Legislation; and 

4. the Company fully complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; 

4. notify the Client without undue delay on becoming aware of a Personal Data breach; 

5. at the written direction of the Client, delete or return Personal Data and copies thereof to the Client on termination of the agreement unless required by Applicable Law to store the Personal Data; 

6. assist the Client, at the Client’s cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators; and 

7. maintain complete and accurate records and information to demonstrate its compliance with this clause 8 and make available to the Client any necessary information to demonstrate compliance with this clause 8. 

5. The Client shall indemnify the Company in full against any and all loss, costs or charges sustained or incurred by the Company due to any failure or non-compliance by the Client of the provisions of this clause 8 or for breach by the Client of Data Protection Legislation. 

9. CONFIDENTIAL INFORMATION & PUBLICITY 

Obligations of Confidentiality  

1. A Party receiving Confidential Information (“Receiving Party”) from the other Party (“Disclosing Party”) agrees to treat as the confidential and exclusive property of the Disclosing Party all Confidential Information that is disclosed by the Disclosing Party in connection with this Agreement. The Receiving Party shall ensure that such Confidential Information is not used or disclosed by the Receiving Party (or by any of its Personnel) for any purpose other than as strictly necessary to perform its obligations under this Agreement. The Receiving Party shall, and shall procure that its Personnel shall, maintain at least the same degree of diligence in the protection of the Confidential Information disclosed to it as it uses with regard to its own confidential or proprietary information.  

Disclosure 

2. The Receiving Party shall not disclose any Confidential Information of the Disclosing Party to any third party for any purpose without obtaining the prior written consent of the Disclosing Party, except: (a) to the Receiving Party’s Personnel who have a ‘need to know’ in order to perform its obligations under this Agreement; (b) to the extent required by a valid court order, law, rule, regulation (including any securities exchange regulation), or other governmental action provided that the Receiving Party takes all reasonable steps to: (i) provide the Disclosing Party with prompt written notice of and an opportunity to comment on such required disclosure; (ii) assists the Disclosing Party in any attempt to limit or prevent the scope of such disclosure; and (iii) secure the confidential treatment of such disclosure by the recipient(s) thereof consistent with the terms of this Agreement; and (c) as otherwise expressly permitted in this Agreement. If there are any disclosures of Confidential Information in breach of this Agreement, such Party shall immediately notify the other Party. 

3. Without prejudice to clause 9.2, the Company may disclose Confidential Information including the terms or conditions of this Agreement: (a) on a ‘need-to-know’ basis to its legal and financial advisors to the extent such disclosure is reasonably necessary; and (b) to any bona fide potential investor, investment banker, acquirer, merger partner or other potential financial partner, and their attorneys, agents and advisors, in connection with: (i) any due diligence process; (ii) an equity or debt investment; (iii) a reorganisation, merger, consolidation, or similar transaction involving the Company; (iv) a purchase, acquisition, sale of all or substantially all of the assets of the Company, or similar transaction involving the Company; or (v) a collaboration or strategic alliance relating to the subject matter of this Agreement, provided that each such person to whom such information is to be disclosed is informed of the confidential nature of such information and has agreed to maintain the confidentiality of such information. 

Exceptions in respect of Confidential Information 

4. Confidential Information does not include information that the Receiving Party is able to demonstrate: (a) was rightfully in its possession prior to receipt from the Disclosing Party, as evidenced by prior written records; (b) is now, or hereafter becomes, part of the public domain through no act or failure to act on the part of the Receiving Party or its agents or collaborators; (c) becomes known to the Receiving Party through disclosure by a third party lawfully having possession of such information and lawfully empowered to disclose such information; or (d) was independently developed by or on behalf of the Receiving Party without the aid, application, use or benefit of the Disclosing Party’s Confidential Information, as evidenced by prior written records.  

Remedies 

5. The Parties agree that there is no adequate remedy at law if there is a breach or threatened breach of this clause 9 and further agree that either Party shall be entitled to seek injunctive or other equitable relief to prevent or remedy such breach in addition to any legal or equitable remedies available to such Party. 

10. INTELLECTUAL PROPERTY RIGHTS 

1. Except as provided in this clause 10, nothing in this Agreement transfers ownership in, or otherwise grants any rights to or in, any Intellectual Property Rights of a Party. 

2. The Client acknowledges that all Intellectual Property Rights owned by the Company or in the Company Platform belong to and shall remain vested in the Company. The Company reserves the right to grant permissions and licences to use the Company Platform to third parties. 

Client Material 

3. Unless otherwise specified, the Client owns all rights (including Intellectual Property Rights) in the Client Material. 

4. The Client grants to the Company a perpetual, worldwide, non-exclusive, royalty-free licence (including the right to sub-licence to the Company’s Personnel and Affiliates) to use, reproduce, modify, adapt and otherwise exercise all Intellectual Property Rights in the Client Material to the extent necessary for the Company to perform its obligations under this Agreement. 

11. WARRANTIES 

Company Warranties 

1. The Company represents and warrants to the Client that it shall: 

1. perform all Services with care, skill and diligence, consistent with currently recognised applicable professional standards; and  

2. be responsible for the professional quality, completeness and coordination of its analyses, findings, recommendations, and all information and Services furnished under this Agreement. 

Exclusions  

2. Subject to clause 12 but notwithstanding any other provision of this Agreement, the Company shall have no responsibility or liability of any kind, whether for breach of warranty or otherwise, arising or resulting from: 

1. the Client’s failure to: (a) correctly install any updates or other modifications to the Company Platform and/or the Services that the Company provides; (b) grant access and security authorisation to the Services to authorised Personnel of the Company; or (c) provide necessary communications interfaces and mechanisms for provision of the Services; 

2. errors resulting from misuse, abuse, negligence, or improper use of all or any part of the Services; or problems to or caused by products or services not provided by the Company; 

3. service modification, amendment, revision, or change of any of the Services or Reports by any party other than the Company or the Company’s Personnel; or 

4. failures relating to the Client’s premises and/or information technology environment including, but not limited to, electrical failure, Internet connection problems, or data or data input, output, integrity, storage, back-up, and other external and/or infrastructure problems, which shall be deemed under the Client’s exclusive control and sole responsibility. 

Exclusive Remedy 

3. The Client’s exclusive remedy under this Agreement shall be for the Company, in its sole discretion, to use commercially reasonable efforts to either: (a) correct any material non-conformity; or (b) to re-perform the materially non-conforming Service or re-provide the materially non-conforming Reports. 

12. LIMITATION OF LIABILITY 

1. Neither Party excludes or limits liability to the other for any matter for which it would be unlawful for such Party to exclude or limit liability. 

2. Subject to clause 12.1, under no circumstances shall the Company be liable, whether in contract, tort (including negligence), for breach of statutory duty, or any other legal theory, arising under or in connection with this Agreement for any: (a) loss of profits; (b) loss of sales or business; (c) loss of agreements or contracts; (d) loss of anticipated savings; (e) loss of revenue; (f) loss of use or corruption of software, data or information; (g) loss of or damage to goodwill; (h) business interruption; or (i) indirect or consequential loss, even if it had been advised of, knew, or should have known, of the possibility thereof.   

3. Subject to clauses 11, 12.1 and 12.2, under no circumstances shall the Company’s total aggregate cumulative liability under or in connection with the performance or contemplated performance of this Agreement, whether arising in contract, tort (including negligence), for breach of statutory duty, or any other legal theory, exceed the Fees paid by the Client for the Services. 

13. INDEMNITY 

1. The Company shall indemnify the Client against all costs, expenses, damages and losses paid by way of final settlement to a third party claimant that are paid by the Client as a result of any claim brought against the Client by that third party for actual or alleged infringement of the Intellectual Property Rights of that third party to the extent that the infringement or alleged infringement arises directly out of, or in connection with, the receipt, use or supply of the Services or Reports. The Client shall have no claim under this indemnity to the extent the claim arises out of any modification of any materials provided by Company, relates to services or materials provided by a third party in conjunction with the Services or Reports, or is caused or contributed to by the Client. 

2. If the Company is required to indemnify the Client under this clause 13, the Client shall: 

1. immediately notify the Company in writing of any actual or potential claim, suit or action against it in respect of which it wishes to rely on the indemnity (“IPR Claim”); 

2. take all steps necessary to mitigate any costs, expenses, damages and losses arising out of or in connection with the IPR Claim; 

3. allow the Company, at its own cost, to conduct all negotiations, control and direct the defence and all proceedings, and to settle the IPR Claim; 

4. provide the Company with such reasonable assistance regarding the IPR Claim as is required by the Company; and  

5. not, without prior consultation with the Company, make any admission relating to the IPR Claim or attempt to compromise or settle it. 

14. TERMINATION 

Termination for Cause 

1. Without prejudice to any other remedy that either Party may have, either Party shall have the right to suspend or terminate (in whole or in part) this Agreement on written notice, effective immediately, at any time if the other Party: 

1. is in material breach of this Agreement and the breach is irremediable or (if such breach is remediable) the breach has not been remedied within twenty (20) Business Days of a written request to do so; or 

2. suffers an Insolvency Event.  

Termination for Non-Payment 

2. Without prejudice to the provisions of clause 14.1 or any other right or remedy that the Company may have, the Company may suspend or terminate (in whole or in part) this Agreement on written notice, effective immediately, at any time if the Client does not pay any undisputed amount due under the Agreement by its due date and remains in default 10 days or more after being notified to make such payment.  

Survival 

3. Termination or expiry of this Agreement, for any reason, shall not affect the accrued rights, remedies, obligations or liabilities of the Parties existing as at the date of termination or expiry. Other than as set out in this Agreement, the following clauses shall continue to apply after the termination or expiry of this Agreement: clauses 4, 6, 8, 9, 10, 11, 12, 14, 15 and 16. 

15. FORCE MAJEURE 

1. Aside from obligations to make payments pursuant to this Agreement, no Party is liable to the other Party for any delay or non-performance of its obligations under this Agreement arising from any cause or causes beyond its reasonable control (a “Force Majeure Event”). 

2. If a Party becomes aware of any Force Majeure Event which gives rise to any failure or delay, or which appear likely to do so, that Party will promptly give notice to the other Party of those circumstances as soon as practicable and will inform the other Party of the period for which it estimates the failure or delay will continue, and shall immediately undertake all commercially reasonable steps to prevent or remedy such circumstances of the Force Majeure Event.   

3. If the Force Majeure event continues for a period in excess of sixty (60) consecutive days, then either of the Parties may terminate this Agreement immediately. 

16. NOTICES 

1. Notices and other communications to any Party to this Agreement required or permitted hereunder or any proceedings relating must be in writing and will be sufficiently served: 

1. if delivered by hand; or 

2. if sent by registered post, 

at the respective addresses of each Party set out in the Memorandum of Agreement or to such other address as is from time to time notified in writing to the other Party in accordance with this clause 16.  

2. Any such notice or communication is deemed to have been served: 

1. if delivered by hand, at the time of delivery; or 

2. if sent by pre-paid registered post, 48 hours after posting; 

provided that any such delivery, transmission or postage outside the hours of 9.00a.m. to 5.30p.m. is deemed to have been served on the next Business Day.  

3. This clause 16 does not prevent a Party sending the other Party routine correspondence in relation to the Services or Reports by email. 

17. GENERAL 

Entire Agreement 

1. This Agreement constitutes the entire agreement between the Parties with respect to its subject matter and supersedes all prior promises, representations, understandings, arrangements, practices, agreements, letters of intent, correspondence, proposals or heads of agreement and other communications, whether written or oral, concerning the same which are hereby revoked by mutual consent of the Parties. Each Party acknowledges that in entering into this Agreement it has not relied on any warranty, representation, collateral contract or assurance (written or oral, express or implied) by the other Party to this Agreement or by any other person that is not set out in this Agreement or the documents referred to in it.  Nothing in this clause 17.1 shall operate to limit or exclude any liability for fraud or fraudulent misrepresentation.   

Assignment 

2. The Client shall not assign, novate or otherwise deal with or encumber any right or obligation under or in connection with this Agreement except with the prior written consent of the Company. 

3. The Company may from time to time assign, novate or otherwise transfer or sub-contract its rights and/or obligations under this Agreement in whole or in part without the consent of the Client. The Client shall execute all documents necessary to give effect to any novation or assignment permitted under this clause 17.3. 

Relationship of Parties 

4. The Client and the Company are independent contractors, and nothing in this Agreement shall constitute the creation, establishment or relationship of partnership, or of principal and agent, or joint venture or employer and employee between the Parties, and nothing herein shall give the Client the authority to negotiate or conclude the sale of any goods or services for or on behalf of the Company.  

Rights and Remedies 

5. The rights and remedies of the Company provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law. 

Amendment 

6. This Agreement may only be modified or amended with the written agreement of the Company.   

General Warranty 

7. Each Party represents and warrants to the other that: 

1. it is validly existing under the laws of its place of incorporation and has the power and authority to carry on its business as that business is now being conducted; 

2. it has the power and authority to enter into and perform its obligations under this Agreement; and 

3. entering into and performing its obligations under this Agreement will not breach any contractual obligations it owes to any other person. 

Severability 

8. If any of the provisions of this Agreement (or part thereof) is found by a court of competent jurisdiction or any other competent authority to be void, invalid or unenforceable, it shall be deemed to be deleted from this Agreement and the remaining provisions (or part thereof) shall not be affected and shall continue to apply.   

Waiver 

9. No failure or delay by a Party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy. 

Governing Law and Jurisdiction 

10. The formation, existence, interpretation, operation and termination of the Agreement, and all matters and Disputes arising out of or in connection with this Agreement (including non-contractual disputes or claims) is or are (as applicable) subject to Irish law and the Parties each irrevocably submit to the exclusive jurisdiction of the Irish courts.