SERVICE SUPPLY TERMS AND CONDITIONS
These Service Supply Terms and Conditions shall apply to all Contracts for the supply of Services between Aid Technology Limited and its Customer from time to time (each a “Party” and together the “Parties”).
1.1 In these Service Supply Terms and Conditions the following terms shall have the following meanings:
“AID:Tech” means Aid Technology Limited, registered in Ireland, registered number 604231, having its registered office at 31-32, Leeson St. Lower, Dublin, D02 F838, Ireland;
“Affiliate(s)” means in relation to a Party, any company or entity Controlling, Controlled by, or under common Control with the Party. Any reference to Customer in these Terms and Conditions shall include a reference to any Affiliates of that Customer;
“Business” means any Customer who is acting in the course of, or pursuant to, a business, trade or professional purpose in the purchase of Services and, in any event, acting in a capacity other than as a Consumer;
“Conditions” means these Service Supply Terms and Conditions, comprised of Clauses 1 to 9 hereof, as may be amended, revised or replaced by AID:Tech from time to time in accordance with Clause 2.3, together with any other documents (contained on a AID:Tech website) referred to in these Conditions, all of which are expressly incorporated by reference herein as part of these Service Supply Terms and Conditions;
“Consumer” means any Customer not acting in the course of, or pursuant to, a business, trade or professional purpose in the purchase of Services;
“Contract” means each contract between AID:Tech and Customer for the supply of Services, consisting of the Conditions, the applicable SoW and/or Engagement Letter, but excluding, for the avoidance of doubt, any order, or purchase order, received from Customer;
“Control” (and its derivatives) means, in relation to a body corporate, the power of a person to secure that the affairs of the body corporate are conducted in accordance with the wishes of that person: (a) by holding shares, or possessing voting power, in or in relation to that or any other body corporate; or (b) by virtue of any powers conferred by the articles of association, or any other document, regulating that or any other body corporate;
“Customer” means a buyer, whether acting as a Consumer or a Business, who agrees to purchase Services from AID:Tech, as set out in an SoW, and AID:Tech may, at its sole discretion, deal with agents, contractors, employees and other parties representing Customer;
“Engagement Letter” means a form of letter between the Parties setting out a range of commercial matters relating to the AID:Tech supply of the Services, known as such and expressly referencing the SoW and these Conditions;
“Invoice” means an invoice, in respect of Services, issued by AID:Tech to Customer, in accordance with Clause 3;
“Price” means the price payable for the Services, as set out in the SoW or Engagement Letter;
“Services” means the service to be supplied by AID:Tech to Customer, as specified in a SoW or an Engagement Letter; and
“SoW” or “Statement of Work” means an order made by Customer to AID:Tech for Services, setting out details of the Services ordered, delivery details, Price, payment terms and other related and ancillary information.
1.2 The headings in these Conditions do not affect their interpretation. Reference to the singular shall include the plural as appropriate and vice versa. Reference to “a”, “an” or “the” SoW or Contract means an individual SoW or Contract, and, for the avoidance of doubt, the term Contract shall include only a single SoW and not all Contracts concluded between AID:Tech and a Customer (even where amounts owing to AID:Tech under multiple Contracts are included on the same Invoice, as per Clause 3).
1.3 The Parties hereby agree that words in an electronic form shall be deemed to be ‘writing’ for the purposes of all applicable legislation where ’writing’ is required and electronic evidence shall be admissible in any court or other quasi-judicial proceedings between the Parties, and the Parties hereby consent to the receipt of communications, including but not limited to quotes, Contracts and Invoices, in electronic form for the purposes of the Electronic Commerce Act, 2000.
1.4 Reference to any statute, regulation or similar shall be construed as a reference to the statute, regulation or similar as amended, consolidated, superseded or replaced from time to time. Reference to AID:Tech discretion shall mean AID:Tech discretion reasonably exercised.
2. SCOPE AND APPLICATION
2.1 These Conditions shall govern and be incorporated in each Contract for the supply of Services made between AID:Tech and Customer. They shall apply in place of, supersede, replace and prevail over, any terms, whether or not in conflict or inconsistent with these Conditions, contained or referred to in any documentation submitted by Customer, or in correspondence, or elsewhere, or implied by trade custom, practice, or course of dealing, including, but not limited to, any Customer conditions of purchase, terms of business, or any other form of agreement. The Customer agrees that any terms and conditions submitted by Customer are submitted in error and are of no binding effect or application to the Contract.
2.2 The Parties may conclude an Engagement Letter, but it is not an essential component of any Contract. A Contract shall be concluded between AID:Tech and Customer in the normal course following acceptance by Customer of a SoW from AID:Tech (and for the avoidance of doubt not upon receipt of an order from Customer) or, where this has not occurred, for whatever reason, then, upon acceptance by Customer, or its Affiliate (or any agent or contractor), of delivery of Services, which shall be deemed to constitute Customer’s unqualified acceptance of the applicable SoW and conclusion of a Contract on these Conditions.
2.3 These Conditions, and the Contract (as defined above), constitute the entire agreement, arrangement and understanding between AID:Tech and Customer relating to each supply of Services and supersede and replace all prior oral or written agreements, statements, representations (“Pre-Contractual Statements”) as between the Parties relating thereto. This clause shall exclude AID:Tech’s liability for any claim, whether: (a) in contract; (b) tort; (c) or any other cause of action, arising from Customer’s purported reliance on any Pre-Contractual Statement made by or on behalf of AID:Tech. Variation of these Conditions shall be valid only if made in writing and signed by an authorised representative of each Party. This clause shall not affect any liability for fraudulent misrepresentation.
3. PRICE AND PAYMENT
3.1 The Price is as stated in the SoW or Engagement Letter and Invoices shall be issued, either, on the date, or at the date of satisfaction of any condition, as set out in the SoW or Engagement Letter, or, if not set out therein, then, in the sum of 50% at date of commencement and 50% at date of conclusion of performance of Services. All sums due and owing to AID:Tech shall be paid in full and free from any rights of set-off and counterclaim, to the maximum extent legally permissible.
3.2 Without prejudice to any claim for damages AID:Tech may have under any Contract, and which AID:Tech reserves, all sums due to AID:Tech under a Contract shall be recoverable by AID:Tech as a simple contract debt in any court of competent jurisdiction.
3.3 Value Added Tax and any other tax or duty payable by a Customer shall be added to the Price, at the rate then applicable.
3.4 All amounts are due to AID:Tech within 30 days of the date of any Invoice. Time for payment shall be of the essence and an express condition of this Contract. AID:Tech may at its absolute discretion demand full or partial payment of any amount outstanding after the date of Delivery. Interest is payable by Customer on overdue accounts in accordance with the European Communities (Late Payment in Commercial Transactions) Regulations 2012 (S.I. 580 of 2012).
3.5 AID:Tech may at its sole discretion and from time to time require full, or partial payment, of the Price prior to Service supply, or the provision of security for payment by Customer in a form acceptable to AID:Tech. In addition, any extension of credit allowed to Customer may be changed or withdrawn at any time at the absolute discretion of AID:Tech.
3.6 AID:Tech may at its discretion, based on prior warning to the Customer, block orders and suspend supply of Services to Customer in the event that Customer is overdue with payment of any amount due and owing to AID:Tech (as stated on any Invoice), or is in breach of these Conditions or the Contract, until such time as the payment is made or the breach remedied to AID:Tech’s reasonable satisfaction.
4. SUPPLY OF SERVICES
4.1 AID:Tech shall use its reasonable endeavours to meet delivery and supply dates specified to Customers. However, time of delivery and supply is not of the essence in a Contract and shall not be made so by the service of any notice by the Customer. Customer shall be responsible for prompt inspection of Services(s), including Service deliverables, following delivery and supply and Customer attention is expressly drawn to the provisions of Clause 4.3 and 6.4.
4.2 AID:Tech may effect delivery and supply of Services in one or more instalments. If Customer, Affiliate, or nominated third party, refuses or fails to take delivery and supply of Services ordered in accordance with the Contract, or fails to take any action necessary on its part for delivery and supply of the Services, then, AID:Tech may, with immediate effect and on notice in writing to Customer, terminate the Contract for breach of condition. Rescheduling of the timetable for delivery ad supply of Services by Customer shall be subject to acceptance by AID:Tech, at its discretion.
4.3 To the maximum extent permitted by law, AID:Tech excludes all liability to Customer, or its Affiliates, for any defects in the Services, unless notified to AID:Tech, in writing, within fourteen (14) days of receipt of the Services by Customer, if the defect would be apparent on reasonable inspection, and if the defect would not be apparent on reasonable inspection, then, promptly on discovery. If liability is accepted by AID:Tech hereunder, then, AID:Tech' sole obligation, responsibility and liability and Customer’s sole remedy, shall, at AID:Tech’ sole discretion, be to: (i) replace or repair any Services, including Service deliverables, found to be damaged or defective; and/or (ii) refund to Customer the Price paid by Customer for the Services the subject of a claim at issue hereunder.
5.1 AID:Tech warrants to Customer that: it has the right to supply the Services to the Customer as per the Contract.
5.2 AID:Tech warrants to Customer that: (i) at the time of supply of the Services and for a reasonable period thereafter, not to exceed thirty (30) days, subject to any limitations set out in the SoW and/or Engagement Letter, to the extent that the Services are sold by description, they shall correspond in all material respects with their description as set out in the SoW and/or Engagement Letter; and (ii) the Services shall be performed using reasonable skill and care.
5.3 It shall be an essential term in these Conditions that: (a) AID:Tech does not provide any warranties, assurance or representations, express or implied, as to the quality or fitness of any particular Services, or combination of Services, for any particular purpose or use to or for which the Customer intends to, or has, put such Services (the “Used Purpose”), save as expressly set out in the SoW and/or Engagement Letter, unless expressly otherwise agreed and stated in writing and signed by an authorised AID:Tech representative; (b) to the extent that the Customer is acting in the capacity of a Business, then, Customer hereby warrants and represents to AID:Tech that: (i) it has placed no reliance on any statement or representation, whether express or implied, made by or purported to be made by AID:Tech, its employees, agents, contractors, directors, officers and any other AID:Tech staff, as to the quality, merchantability, suitability or fitness of any particular Services, or combination of Services, for any Used Purpose; and (ii) it has alone, or together with its professional advisors, assessed the quality, merchantability, suitability or fitness of any Services, or combination of Services, for the Used Purpose; and (c) without prejudice to the provisions of Clause 5.1 and 5.2, and subject to the provisions of sub-Clause (a), AID:Tech hereby excludes any and all liability arising from, or due to: (i) the use, application or implementation of Services, or any combination of Services sold to the Customer, or its Affiliates, that are found to be unsuitable or unfit for the Used Purpose; and/or (ii) any representations or statements made by a Customer or Affiliate to any third party in respect of the quality, suitability or fitness of any Services, or combination of Services, for any Used Purpose, or other particular purpose or use, which shall be matters entirely within the control and at the risk of Customer.
5.4 Except as expressly contained in this Contract, all warranties, terms and conditions, whether oral or written, express or implied by law, custom, or otherwise, are hereby excluded to the maximum extent permitted by law.
5.5 THE CUSTOMERS ATTENTION IS SPECIFICALLY DRAWN TO THIS CLAUSE 5.
6. LIMITATION OF LIABILITY
6.1 In no event shall AID:Tech be liable to Customer, or its Affiliates, under or in relation to these Conditions and a Contract, for and in respect of any: (a) loss of profits, loss of business, loss of revenue, loss of use, cost of substitute services or facilities, loss of goodwill or anticipated savings; (b) indirect, consequential or special loss or damage, howsoever and whatsoever arising; (c) default, fault and/or failure which is due to the negligent act, error or omission, breach or default of a third party; (d) the circumstances set out in Clause 5.3(c); and/or (e) damages, costs and/or expenses due to third party claims against the Customer due to or arising from the Services, including, without limitation, loss and/or damage suffered by a third party due to Customer application of Services for a Used Purpose. For the purposes of this Clause 6.1 the term ‘loss’ shall include a partial loss or reduction in value as well as a complete or total loss. Nothing in these Conditions shall limit or exclude the liability of each Party for death, personal injury, fraud (including fraudulent misrepresentation), criminal action, or any liability under the Liability for Defective Services Act 1991.
6.2 Subject to the provisions of Clause 6.1, the aggregate liability of AID:Tech for any and all negligent acts, errors or omissions, breach or default, resulting in, or giving rise to, direct loss or damage to Customer, or its Affiliates, under this Contract, shall be calculated by reference to the Services giving rise to Customer loss or damage (the “Applicable Services”), and shall be limited to damages, which shall not exceed, the greater of: (a) the sum of ten thousand euro (€10,000), where the Price paid and/or payable in respect of the Applicable Services, as specified on the Invoice, is ten thousand euro (€10,000) or less; or (b) the amount equivalent to one hundred and twenty per cent (120%) of the Price paid and/or payable in respect of the Applicable Services, as specified on the Invoice, where the Price paid and/or payable in respect of the Applicable Services is greater than ten thousand and one euro (€10,001). References to Price in this Clause 6.2 refers to the Price specified on each individual Invoice, quoted excluding VAT.
6.3 The Customer and AID:Tech expressly agree that should any limitation or provision contained in Clause 6 be held to be invalid under any applicable statute or rule of law, then, it shall to that extent be deemed omitted, but, if any Party thereby becomes liable for loss or damage which would otherwise have been excluded, then, such liability shall be subject to the other limitations and provisions set out herein.
6.4 Each Party shall be solely liable to the other Party, for and on behalf of itself, its Affiliates, employees servants or agents, under or in relation to these Conditions and the Contract and each Party shall assume all rights and remedies for and on behalf of its Affiliates, employees, servants or agents, against the other Party under or in relation to these Conditions and the Contract. Except as expressly provided by these Conditions and the Contract, nothing herein creates, is intended to create, or shall be deemed to create, any benefits, rights, claims, obligations, or causes of action, in, to, or on behalf of, any party, or entity, other than AID:Tech and Customer. The foregoing exclusion shall include, but not be limited to, any Affiliates, agents, employees, contractors of the Customer and any other third parties.
6.5 AID:Tech shall have no liability for damages or costs, including legal expenses, in respect of any claim, proceedings or action (together a “Claim”) taken by or on behalf of Customer under or in connection with these Conditions and the Contract to supply Services to the Customer, unless: (a) AID:Tech receives from Customer written notice of such Claim within sixty (60) days of Customer becoming aware of the facts giving rise to such Claim; and (b) such Claim is commenced within twenty four (24) months of supply or failure to supply applicable Services upon which such Claim is based.
6.6 THE CUSTOMERS ATTENTION IS SPECIFICALLY DRAWN TO THIS CLAUSE 6.
7.1 Without limiting its other rights or remedies, either Party may terminate this Contract with immediate effect, by giving written notice to the other Party (a) if the other Party commits a material breach of any term of the Contract and, where such breach is by its nature incapable of remedy, then, immediately on service of notice and, where the breach is by its nature capable of remedy, then, where such Party has failed to remedy the breach within thirty (30) days of receipt of written notification requiring remedy; (b) in respect of the Customer, where any corporate action, legal proceedings or any other step is taken to implement a suspension of payments, a moratorium of any indebtedness or it passes a resolution for its winding-up (otherwise than for the purpose of reconstruction or amalgamation), or a court of competent jurisdiction making an order for such Party’s winding up or dissolution; (c) in respect of the Customer, following the making of an administration order in relation to such Party, or the appointment of an examiner, liquidator, receiver, administrative receiver, administrator or compulsory manager or other similar officer to such Party or any of its assets, or an encumbrancer taking possession of or selling, an asset of such Party; and/or (d) in respect of the Customer, following such Party proposing, sanctioning or making an arrangement, composition, compromise or assignment with its creditors generally in satisfaction of the debts of that Party , or making an application to a court of competent jurisdiction for protection from-its creditors generally. On or at any time after the occurrence of any of the foregoing events, AID:Tech may: (a) stop the supply of any Services not then supplied; (b) suspend further Service supply to Customer; (c) exercise its rights under this Clause 7; and/or (d) terminate any Contract with Customer, with immediate effect by notice in writing to Customer.
7.2 Upon termination of a Contract, howsoever arising, any indebtedness of Customer to AID:Tech shall become immediately due and payable and AID:Tech shall be relieved of any further obligation to supply Services to Customer pursuant to that Contract.
7.3 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect, including, without limitation, the provisions of Clause 1, 2.1, 3, 5, 6, 7,8, 9 and 10.
8. INTELLECTUAL PROPERTY
8.1 Any and all Intellectual Property provided or made available by AID:Tech to Customer in performing the Services under or in connection with the Contract shall remain the exclusive property of AID:Tech and any Intellectual Property Rights created, invented or authored by AID:Tech in performing the Services or under any SOW shall vest and remain vested in AID:Tech. Customer agrees that it shall have no right, claim and/or cause of action in respect legal or beneficial ownership of any Intellectual Property referenced in this clause 8 unless specifically agreed by way of an assignment or equivalent agreement in writing has been put in place with AID:Tech separate to this Contract.
8.2 For the purposes of this clause 8 the term “Intellectual Property” shall include: any patents, trademarks, service marks, design rights (whether registrable or otherwise), domain names, applications for any of the foregoing, copyright, moral rights, database rights, know-how, trade or business names, including the AID:Tech Logo and other similar rights or obligations whether registrable or not, in any country (including, but not limited to, Ireland).
9. DATA PROTECTION
9.1 The Customer acknowledges that AID:Tech may collect and process personal data from Customer for the purposes of providing products or services for sale and which is necessary to perform the Contract.
9.2 In particular, it is acknowledged that AID:Tech processes personal data where: (a) it is necessary for the performance of a contract between AID:Tech and Customer; (b) it is permitted or required under applicable law; or (c) it is necessary for AID:Tech’s legitimate business interests (including for the purpose of conducting market analysis and for sending marketing communications to Customers). AID:Tech will retain such personal data for a period of up to seven (7) years after the relevant Contract is concluded and may disclose your personal data to AID:Tech affiliates, our service providers and as required by law.
9.3 To the extent that Customer provides or makes available personal data to AID:Tech, which AID:Tech, acting as a data processor, processes for and on behalf of Customer, acting as a data controller.
10.1 The Customer may not assign, novate, or transfer, or purport to assign, novate, or transfer, any of its rights or obligations under a Contract, without having obtained AID:Tech's prior written consent. AID:Tech may assign, novate, sub-contract, or transfer, its rights and obligations under a Contract, without having obtained Customer consent.
10.2 A Contract shall ensure to the benefit of and be binding upon the respective Parties hereto and their respective successors, personal representatives and assigns.
10.3 If any provision of a Contract shall be held unlawful, void or unenforceable for any reason, then, such provision shall be deemed severed and shall not affect the continuing validity and enforceability of the remaining provisions. If any invalid, unenforceable or illegal provision of these Conditions would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
10.4 The failure or delay by AID:Tech in exercising a right or remedy provided by a Contract, or by law, shall not constitute a waiver of the right or remedy or a waiver of other rights or remedies. No single or partial exercise of a right or remedy provided by a Contract, or by law, shall prevent a further exercise of the right or remedy or the exercise of another right or remedy.
10.5 A notice under or in connection with a Contract shall be in writing and sent by post pre-paid recorded delivery, or by email (subsequently confirmed by post aforesaid), to Customer at the address set out in the Customer Account Application Form or Invoice, and to AID:Tech at the address set out in the Invoice. In the absence of earlier receipt, a notice shall be deemed given: (a) if sent by post, except airmail, two (2) days after the date of posting; (b) if sent by airmail, five (5) days after the date of posting; and (c) if sent by email, on completion of transmission.
10.6 These Conditions, together with the Contract, contains the whole and entire agreement and arrangement between the Parties relating to the subject matter hereof and supersede and replace any prior representations, agreements, arrangements and understandings between the Parties relating to that subject matter. Each Party acknowledges that, in entering into these Conditions and the Contract, it does not rely on any statement, mis-representation, assurance or warranty (whether it was made negligently or innocently) of any person, whether a Party hereto or not, other than as expressly set out herein. Nothing in this Clause 10.6 shall limit or exclude any liability for fraud, including, but not limited to, fraudulent mis-representation.
10.7 Any disputes, claims or proceedings arising out of or in any way relating to the Services, the Conditions, or a Contract, shall be governed by the laws of Ireland. The Parties hereby submit to the exclusive jurisdiction of the Irish Courts for the purpose of any proceedings arising out of or in any way relating to the Services, the Conditions or a Contract.