These are the terms and conditions (the "Terms") of Datajolt Limited, a company incorporated and registered in the Republic of Ireland under company number 718838, whose registered office is at 22 Brian Terrace, Dublin, Dublin 3 DO3 K5P2, Ireland (the "Supplier"). These Terms shall apply to the services provided by the Supplier to the party named in an Order Form (the "Client"). The Order Form and these Terms create the entire contract between the Supplier and the Client.

In the event of a conflict between the Order Form and these Terms, the Order Form shall prevail.

1. INTERPRETATION

The definitions and rules of interpretation in this clause apply in these Terms.

1.1 Definitions

"Authorised Users" those employees and independent contractors of the Client, who are entitled to use the Software through the Hosting Services under these Terms.

"Business Day" any day which is not a Saturday, Sunday or public holiday in Ireland.

"Client Data" the data inputted into the information fields of the Software by the Client, by Authorised Users, or by the Supplier on the Client’s behalf, or imported into the Software via third party software integrated with the Software.

"Confidential Information" information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 9.

"Controller, processor, data subject, personal data, personal data breach, processing and appropriate technical and organisational measures" as defined in the Data Protection Legislation.

"Data Protection Legislation" all applicable data protection and privacy legislation in force from time to time in, including (where applicable and without limitation), the Republic of Ireland including the General Data Protection Regulation ((EU) 2016/679); the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended, the California Consumer Privacy Act as amended by the California Privacy Rights Act (“CCPA”), the Colorado Privacy Act (“CPA”), the Connecticut Data Privacy Act, the Utah Consumer Privacy Act (“UCPA”), and the Virginia Consumer Data Protection Act and any similar, equivalent or successor legislation applicable to the parties.

"Effective Date" the date stated within the Order Form as the date the Profit System Subscription will commence.

"Grace Period" as defined in the Order Form and clause 1.1 of the Terms.

"Software” the Supplier’s proprietary software in machine-readable object code form only, namely the data platform used for centralising, modelling and analysing data, including any error corrections, updates, upgrades, modifications and enhancements made available to the Client under these Terms.

"Heightened Cybersecurity Requirements" any laws, regulations, codes, guidance (from regulatory and advisory bodies, whether mandatory or not), international and national standards, and sanctions, which are applicable to either the Client (including any Authorised User), but not the Supplier, relating to security of network and information systems and security breach and incident reporting requirements, which may include the Cybersecurity Directive ((EU) 2016/1148)), Commission Implementing Regulation ((EU) 2018/151), the Network and Information Systems Regulations 2018 (SI 506/2018), all as amended or updated from time to time.

"Hosting Services" the services provided by the Supplier as part of the Profit System Subscription to enable Authorised Users to access and use the Software, including hosting set-up and ongoing services, as described in Schedule 1.

"Intellectual Property Rights" patents, utility models, rights to inventions, copyright and related rights, trade marks and service marks, trade names and domain names, source code, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to preserve the confidentiality of information (including know-how and trade secrets) and any other intellectual property rights, including all applications for (and rights to apply for and be granted), renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world;

"Maintenance and Support" any error corrections, updates and upgrades that the Supplier may provide or perform with respect to the Software and Hosting Services, as well as any other support services provided to the Client under these Terms, all as described in Schedule 2.

"MoneyMap" means the initial diagnostic phase of the Profit System, delivered during the first 30 days of the Profit System Subscription, comprising the Supplier’s proprietary analytical deliverable identifying potential profit opportunities and producing a ranked list of opportunities, supporting analysis and an implementation roadmap.

"MoneyMap Guarantee" means the conditional refund right during the first 30 days of the Profit System Subscription, pursuant to clause 3.

"Normal Business Hours" 9.00 am to 5.00 pm local Irish time, each Business Day.

"Profit System" means the Supplier’s proprietary software and methodology for identifying and capturing the profit opportunities identified through the MoneyMap, and comprises the Software, related analytical outputs, system configuration and any Client-specific solution implemented using the Software.

"Profit System Subscription" means the subscription under these Terms and the applicable Order Form pursuant to which the Client is granted access to and use of the Software and receives the Services and includes delivery of the MoneyMap and the related implementation and support services forming part of the Profit System.

"Service Level Arrangements" the service level arrangements set out in Schedule 3.

"Renewal Term" has the meaning as stated in clause 12.2.

"Services" the Hosting Services and Maintenance and Support.

"Subscription Fee" the fee payable for the Profit System Subscription and includes the

"Term" the Initial Term together with any Renewal Term, as specified in clause 12.2.

"Virus" anything 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.

"Vulnerability" a weakness in the computational logic (for example, code) found in software and hardware components that, when exploited, results in a negative impact to confidentiality, integrity, or availability, and the term Vulnerabilities shall be construed accordingly.

2. SERVICES

2.1 The Supplier shall perform the Services. The Service Level Arrangements shall apply with effect from the Effective Date.

2.2 In relation to Authorised Users:

(a) the Client’s access to the Hosting Services shall be limited to employees or independent contractors of the Client; and

(b) the Client shall ensure that each Authorised User keeps a secure password for their use of the Software and that each Authorised User keeps their password confidential.

2.3 Subject to clauses 2.3.2 and 2.3.3, in relation to the Software:

2.3.1 the Supplier hereby grants to the Client, subject to these Terms, a non-exclusive, non-sublicensable, revocable, royalty-free licence to allow Authorised Users only to access the Software through the Hosting Services and to use the Software solely for the Client’s business purposes;

2.3.2 the Client shall not, and the Client shall procure that any Authorised User shall not, store, distribute, introduce or transmit through the Hosting Services:

(a) any Virus;

(b) any Vulnerability; or

(c) any material that is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; facilitates illegal activity; depicts sexually explicit images; or promotes unlawful violence, discrimination based on race, gender, colour, religious belief, sexual orientation, disability, or any other illegal activities;

2.3.3 the rights provided under this clause 2.3 are granted to the Client only, and shall not be considered granted to any subsidiary or holding company of the Client;

2.3.4 the Client shall not, and the Client shall ensure that the Authorised Users shall not:

(a) attempt to copy, duplicate, modify, create derivative works from or distribute all or any portion of the Software except to the extent expressly set out in these Terms or as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties; or

(b) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software, except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties;

(c) access all or any part of the Software or Hosting Services in order to build a product or service which competes with the Software and/or the Services;

(d) subject to clause 17.1 (Assignment), transfer, temporarily or permanently, any of its rights under these Terms; or

(e) attempt to obtain, or assist third parties in obtaining, access to the Software, other than as provided under this clause 2.3.4.

2.4 The Client shall use best endeavours to prevent any unauthorised access to, or use of, the Software and notify the Supplier immediately of any such unauthorised access or use.

3. MONEYMAP GUARANTEE

3.1 The MoneyMap forms part of the Profit System Subscription and is delivered during the first 30 days from the Effective Date.

3.2 Following delivery of the MoneyMap, the Profit System Subscription will automatically continue into a 5-month fixed term for delivery of the Profit System, unless the Client gives written notice during the 14-day grace period (the “Grace Period”) which commences immediately after the first 30 days of the Profit System Subscription.

3.3 If the Client does not cancel during the Grace Period, the 5-month fixed term described at clause 1.1 above shall continue in full in accordance with the Order Form and these Terms, during which the Supplier shall work with the Client to support implementation of the recommendations and opportunities identified in the MoneyMap.

3.4 Subject to the Client’s compliance with these Terms, the Supplier provides a conditional guarantee (the “MoneyMap Guarantee”) that it will identify at least $500,000 in opportunities for profit retention during delivery of the MoneyMap.

3.5 As a condition to the MoneyMap Guarantee, the Client shall:

(a) cooperate with the Supplier in a timely manner, acknowledging that the Supplier’s ability to deliver the MoneyMap is dependent on such cooperation;

(b) participate in a minimum of 5 hours of discovery sessions during the first 30 days of the Profit System Subscription;

(c) provide access to all data, systems and information reasonably requested by the Supplier within reasonable timeframes;

(d) ensure that all data and information provided is accurate, complete and not misleading; and

(e) make relevant personnel reasonably available as required for context and clarification.

3.6 The MoneyMap Guarantee shall not apply where qualifying opportunities are identified but are not pursued or are rejected by the Client for commercial, legal or operational reasons.

3.7 Subject to the Client’s full compliance with these Terms, if the MoneyMap Guarantee is not met, the Supplier shall refund the first month of the Subscription Fee which the Client paid in advance in accordance with the Order Form. No refund shall be due where the MoneyMap Guarantee is met but the Client chooses to cancel the Profit System Subscription during the Grace Period.

3.8 The MoneyMap identifies potential opportunities based on the information available at the time of analysis. Actual outcomes may vary depending on implementation, market conditions and other factors outside the Supplier’s control.

3.9 The Supplier shall not be responsible for any delay, limitation or reduction in the scope of the MoneyMap resulting from the Client’s failure to comply with clause 3.5.

3.10 The Supplier may update the format, methodology or tools used to deliver the MoneyMap, provided that the overall scope and purpose remain materially consistent.

3.11 During the Profit System Subscription, the Supplier may provide further analytical updates or refinements to the MoneyMap to reflect changes in the Client’s Data, business operations or context.

3.12 A refund under clause 3.7 is without prejudice to the continuation of the Profit System Subscription unless the Client exercises its right to cancel during the Grace Period, and does not otherwise affect the parties’ rights or obligations under these Terms.

4. CLIENT DATA AND DATA PROCESSING

4.1 The Client warrants that it does and shall own all rights, title and interest in and to all of the Client Data that is not personal data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of such Client Data.

4.2 The Client’s remedy against the Supplier for breach of this clause 4 shall be for the Supplier to use reasonable commercial endeavours to restore the lost or damaged Client Data from the latest back-up of such Client Data maintained by the Supplier in accordance with the archiving practices described in Schedule 1. The Supplier shall not be responsible for any loss, destruction, alteration or disclosure of Client Data caused by any third party, including as a result of any third party service provider’s error, fault or negligence that causes loss, theft, abuse, destruction, alteration or disclosure of data Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 4 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.

4.3 The parties acknowledge that for the purposes of the Data Protection Legislation, the Client is a controller and/or a processor and the Supplier is a processor and/or a sub-processor. Schedule 4 sets out the scope, nature and purpose of processing by the Supplier, the duration of the processing and the types of personal data and categories of data subject.

4.4 Without prejudice to the generality of clause 4.3, the Client will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to the Supplier for the duration and purposes of these Terms.

4.5 Without prejudice to the generality of clause 4.3, the Supplier shall, in relation to any personal data processed in connection with the performance by the Supplier of its obligations under these Terms:

(a) process the personal data only on the written instructions of the Client unless the Supplier is otherwise required to process such personal data by law. The Supplier shall promptly notify the Client of such processing unless prohibited from doing so by law;

(b) ensure that it has in place suitable technical and organisational measures to protect the personal data from unauthorised or unlawful processing, accidental loss, damage or destruction. Such measures shall be proportionate to the potential harm resulting from such events, taking into account the current state of the art in technology and the cost of implementing those measures;

(c) where the Client is EU or UK based, not transfer any personal data outside of the European Economic Area or the United Kingdom unless the prior written consent of the Client has been obtained and the following conditions are fulfilled:

(i) the Client or the Supplier has provided appropriate safeguards in relation to the transfer;

(ii) the data subject has enforceable rights and effective legal remedies;

(iii) the Supplier complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and

(iv) the Supplier complies with reasonable instructions notified to it in advance by the Client with respect to the processing of the personal data;

(d) 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;

(e) notify the Client without undue delay on becoming aware of a personal data breach;

(f) at the written direction of the Client, delete or return personal data and copies thereof to the Client on termination of these Terms unless required by the Data Protection Legislation to store the personal data; and

(g) maintain complete and accurate records and information to demonstrate its compliance with this clause 3 and allow for audits by the Client or the Client’s designated auditor and immediately inform the Client if, in the opinion of the Supplier, an instruction infringes the Data Protection Legislation.

4.6 The Client consents to the Supplier appointing hosting providers as third-party processors of personal data under these Terms and such other processors as the Supplier shall notify to the Client in writing. The Supplier confirms that it has entered or (as the case may be) will enter with each such third-party processor into a written agreement incorporating terms which are substantially similar to those set out in this clause 3 and in either case which the Supplier undertakes reflect and will continue to reflect the requirements of the Data Protection Legislation.

4.7 Either party may, at any time on not less than 30 days’ notice, revise this clause 4 by replacing it with any applicable controller to processor standard clauses or similar terms forming party of an applicable certification scheme (which shall apply when replaced by attachment to these Terms).

4.8 The Supplier shall be entitled to collate and use the Client Data, on an anonymised basis, for the purpose of statistical analysis (primarily identification of trends in data). The Supplier may from time to time use the results of such statistical analysis to report back to the Client on general trends and insights garnered from each Authorised User’s use of the Software.

4.9 The Supplier may create and use aggregated and irreversibly anonymised metadata derived from Client Data, and may combine such anonymised metadata with the anonymised metadata of other clients, provided that such data does not constitute Personal Data and cannot reasonably be used, whether alone or in combination with other data, to identify any individual.

4.10 Where the Client is a Californian resident, the Supplier, acting as service provider, acknowledges and confirms its understanding that it: (i) does not and will not receive any Personal Data as those terms are defined under the CCPA; (ii) is prohibited from selling and will not sell any Personal Data as the term “sell” is defined in the CCPA; (iii) will only collect, retain, disclose, or use Client Data solely as necessary to perform the Services for the benefit of Client Data; and (iv) will not combine Personal Data received from the Client with Personal Data received from other clients, except as permitted under the CCPA. The Supplier represents and warrants that the Supplier understands the rules, requirements, and definitions of the CCPA and agrees to refrain from taking any action that would cause any transfers of Personal Data to or from the Supplier to qualify as “selling personal information” or constitute a “sale” or “sharing” of Personal Data under the CCPA.

5. SUPPLIER'S OBLIGATIONS

5.1 The Supplier undertakes that the Services will be performed with reasonable skill and care.

5.2 The Supplier shall not be liable to the extent of any failure of or defect in the Software or Services which is caused by use of the Software contrary to the Supplier’s instructions or modification or alteration of the Software by any party other than the Supplier or the Supplier’s duly authorised contractors or agents, or where the Client introduces third party software that interacts with the Software, without the Supplier’s prior consent.

5.3 If the Software does not conform with clause 5.1 or any material defect emerges, the Supplier will, at its expense, use reasonable commercial endeavours to correct any such non-conformance promptly within a reasonable period of time. Such correction constitutes the Client’s sole and exclusive remedy for any breach of the undertaking set out in clause 5.1, unless the Supplier is unable to rectify the defect within a reasonable period of time. Notwithstanding the foregoing, the Supplier does not warrant that the Software and Services will be free from Vulnerabilities or that the Client’s use of the Software and the Services will be uninterrupted or error-free.

5.4 These Terms shall not prevent the Supplier from entering into similar agreements with third parties, or from independently developing, using, selling or licensing materials, products or services which are similar to those provided under these Terms.

6. CLIENT'S OBLIGATIONS

6.1 The Client shall:

(a) provide the Supplier with:

(i) all necessary co-operation in relation to these Terms;

(ii) all necessary access to such information as may be required by the Supplier, in order to render the Services, including but not limited to Client Data, security access information and software interfaces to the Client’s other business applications;

(b) without affecting its other obligations under these Terms, comply with all applicable laws and regulations with respect to its activities under these Terms; and

(c) carry out all other Client responsibilities set out in these Terms or in any of the Schedules in a timely and efficient manner. In the event of any delays in the Client’s provision of such assistance as agreed by the parties, the Supplier may adjust any timetable or delivery schedule set out in these Terms as reasonably necessary. The Supplier shall not be liable for any delay in providing the Services where the Client has not complied with this clause 6.1.3.

6.2 Each party agrees that without the prior written consent of the other it will not, during the term of these Terms, directly or indirectly, recruit or procure to be recruited, employ or hire on a full-time, part-time or temporary basis any employee or contractor of the other party with whom the party has had contact in connection with these Terms, other than through an advertised recruitment campaign open to all applicants and not specifically targeted at the employees of the other party.

7. CHARGES AND PAYMENT

7.1 The Client shall pay the Subscription Fee set out in the Order Form.

7.2 Any fees payable for additional services shall be invoiced monthly in arrears.

7.3 Invoices issued by the Supplier to the Client under these Terms shall be payable within 30 days of the date of the relevant invoice.

7.4 All amounts and fees stated or referred to in these Terms or Order Form are exclusive of value added tax or any related sales tax, which shall be added to the Supplier’s invoice(s) (where required) at the appropriate rate. The Customer shall be responsible for all such taxes, whether charged at the time of invoicing or assessed retrospectively, other than taxes on the Supplier’s net income.

7.5 If the Supplier has not received payment within five days after the due date, and without prejudice to any other rights and remedies of the Supplier:

(a) the Supplier shall be under no obligation to provide any or all of the Services or provide access to the Software to the Client or Authorised Users while the invoice(s) concerned remain unpaid;

(b) interest shall accrue on a daily basis on such due amounts at an annual rate equal to 5% over the Bank of Ireland base rate from time to time (but at 5% a year for any period when that base rate is below 0%), commencing on the due date and continuing until fully paid, whether before or after judgment; and

(c) the Supplier shall be entitled to take steps to enforce payment, including legal action.

7.6 The Supplier may increase the Subscription Fee and its standard rates on an annual basis with effect from each anniversary of the Effective Date.

8. INTELLECTUAL PROPERTY RIGHTS

8.1 The Client acknowledges and agrees that the Supplier and/or its licensors own all Intellectual Property Rights in the Software and the Services. Except as expressly stated herein, these Terms does not grant the Client any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of the Software, Services or any related documentation, other than the rights granted to the Client in accordance with clause 2.3 of these Terms.

8.2 All Intellectual Property Rights created, developed or generated by the Supplier for, or for use by, the Client in the provision of any/all Services to the Client under these Terms, including but not limited to methods used and any metadata generated, shall belong to and vest in the Supplier immediately on creation. If such Intellectual Property Rights do not vest in the Supplier, the Client hereby assigns to the Supplier (or shall procure the assignment to the Supplier) with full title guarantee (including by way of present assignment and/or a future assignment of) all such Intellectual Property Rights.

8.3 The Supplier confirms that it has all the rights in relation to the Software that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of these Terms.

9. CONFIDENTIALITY

9.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under these Terms. A party’s Confidential Information shall not include information that:

(a) is or becomes publicly known other than through any act or omission of the receiving party; or

(b) was in the other party’s lawful possession before the disclosure; or

(c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or

(d) is independently developed by the receiving party, which independent development can be shown by written evidence.

9.2 Subject to clause 9.4, 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 these Terms.

9.3 Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of these Terms.

9.4 A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 9.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.

9.5 The Client acknowledges that the Software, the results of any performance tests of the Software and the Services constitute the Supplier’s Confidential Information.

9.6 The Supplier acknowledges that the Client Data is the Confidential Information of the Client.

9.7 The Client hereby consents to the Supplier using the Client’s name and logo(s) in its promotional and marketing materials.

9.8 The above provisions of this clause 9 shall survive termination of these Terms, however arising.

10. INDEMNITY

10.1 The Client shall defend, indemnify and hold harmless the Supplier against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Client’s use of the Software or Services, provided that:

(a) the Client is given prompt notice of any such claim;

(b) the Supplier provides reasonable co-operation to the Client in the defence and settlement of such claim, at the Client’s expense; and

(c) the Client is given sole authority to defend or settle the claim.

10.2 The Supplier shall defend the Client, its officers, directors and employees against any claim that the use of Software by the Client in accordance with these Terms infringes any patent effective as of the Effective Date, copyright, database right or right of confidentiality, and shall indemnify the Client for any amounts awarded against the Client in final or unappealed judgment or settlement of such claims, provided that:

(a) the Supplier is given prompt notice of any such claim;

(b) the Client provides reasonable co-operation to the Supplier in the defence and settlement of such claim, at the Supplier’s expense; and

(c) the Supplier is given sole authority to defend or settle the claim.

10.3 In the defence or settlement of the claim, the Supplier may obtain for the Client the right to continue using the Software, replace or modify the Software so that it becomes non-infringing or, if such remedies are not reasonably available, terminate these Terms without liability to the Client. The Supplier shall have no liability if the alleged infringement is based on:

(a) a modification of the Software by anyone other than the Supplier;

(b) the Client’s use of the Software in a manner contrary to the instructions given to the Client by the Supplier; or

(c) the Client’s use of the Software after notice of the alleged or actual infringement from the Supplier or any appropriate authority.

10.4 The foregoing and clause 11 states the Client’s sole and exclusive rights and remedies, and the Supplier’s entire obligations and liability, for patent, copyright, database or right of confidentiality infringement.

11. LIMITATION OF LIABILITY

11.1 This clause 11 sets out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Client:

(a) arising under or in connection with these Terms, whether contractual or non-contractual;

(b) in respect of any use made by the Client of the Services, the Software, or any part of them;

(c) in respect of any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including negligence) arising under or in connection with these Terms; and

(d) in respect of any indemnity provided by the Supplier under these Terms.

11.2 Except as expressly and specifically provided in these Terms:

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

(b) the Supplier makes no warranty or representation that the Services or the Software will comply with any Heightened Cybersecurity Requirements and the Client assumes sole responsibility for compliance with the same; and

(c) 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 these Terms.

11.3 Nothing in these Terms excludes the liability of the Supplier:

(a) for death or personal injury caused by the Supplier’s negligence; or

(b) for fraud or fraudulent misrepresentation.

11.4 The Service Level Arrangements provide for the Client’s full and exclusive right and remedy, and the Supplier’s only obligation and liability in respect of, the performance and/or availability of the Service, or their non-performance and non-availability.

11.5 Subject to clause 11.3:

(a) the Supplier shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation (whether innocent or negligent), 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 these Terms;

(b) the Supplier’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with a breach of clause 3 (Client Data and Data Processing) and clause 9 (Confidentiality) shall be limited to the Supplier’s professional liability insurance coverage, being €500,000; and

(c) subject to clause 11.5.2, the Supplier’s total aggregate liability (including in respect of the indemnity at clause 10.2), tort (including negligence or breach of statutory duty), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of these Terms shall be limited to the total Subscription Fees paid in the 6 months preceding the date on which the claim arose.

12. TERM AND TERMINATION

12.1 These Terms shall commence on the Effective Date.

12.2 Unless the Client cancels the Profit System Subscription during the Grace Period in accordance with these Terms, these Terms shall continue for a fixed period of 5 months commencing immediately following delivery of the MoneyMap (“Initial Term”).

12.3 On expiry of the Initial Term, these Terms shall automatically continue on a rolling month-to-month basis (each a “Renewal Term”), unless and until terminated by either party on not less than 30 days’ written notice.

12.4 The “Term” shall be the Initial Term plus any Renewal Terms.

12.5 the Initial Term, Renewal Terms and any rights of termination may be varied or replaced by an Order Form, in which case the terms of the Order Form shall apply.

12.6 Without affecting any other right or remedy available to it, either party may terminate these Terms with immediate effect by giving written notice to the other party if:

(a) the other party fails to pay any amount due under these Terms on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment;

(b) the other party commits a material breach of any other term of these Terms which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 28 days after being notified in writing to do so;

(c) the other party repeatedly breaches any of the terms of these Terms in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of these Terms;

(d) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts;

(e) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (being a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;

(f) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;

(g) an application is made to court, or an order is made, for the appointment of an administrator, or a notice of intention to appoint an administrator is given or an administrator is appointed, over the other party (being a company);

(h) the holder of a qualifying floating charge over the assets of that other party (being a company) has become entitled to appoint or has appointed an administrative receiver;

(i) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;

(j) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within 14 days;

(k) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 12.6.2 to clause 12.6.10 (inclusive); or

(l) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.

12.7 Without affecting any other right or remedy available to it, the Supplier may terminate these Terms with immediate effect by giving written notice to the Client if there is a change of control of the Client.

12.8 On termination of these Terms for any reason:

(a) all licences granted under these Terms shall immediately terminate;

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

(c) the Supplier may destroy or otherwise dispose of any of the Client Data in its possession unless the Supplier receives, no later than ten days after the Effective Date of the termination of these Terms, a written request, in accordance with clause 4.5.6, for the delivery to the Client of the then most recent back-up of the Client Data. The Supplier shall use reasonable commercial endeavours to deliver the back-up to the Client within 30 days of its receipt of such a written request, provided that the Client has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Client shall pay all reasonable expenses incurred by the Supplier in returning or disposing of Client Data; and

(d) any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of these Terms which existed at or before the date of termination shall not be affected or prejudiced.

13. FORCE MAJEURE

Neither party shall be in breach of these Terms nor liable for delay in performing, or failure to perform, any of its obligations under these Terms if such delay or failure results from events, circumstances or causes beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport or telecommunications network or the internet, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations, provided that if the period of delay or non-performance continues for one month, the party not affected may terminate these Terms by giving 30 days’ written notice to the other party.

14. WAIVER

A waiver of any right under these Terms is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given. Unless specifically provided otherwise, rights arising under these Terms are cumulative and do not exclude rights provided by law.

15. RIGHTS AND REMEDIES

Except as expressly provided in these Terms, the rights and remedies provided under these Terms are in addition to, and not exclusive of, any rights or remedies provided by law.

16. SEVERANCE

16.1 If any provision or part-provision of these Terms is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of these Terms.

16.2 If any provision or part-provision of these Terms is deemed deleted, the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.

17. ASSIGNMENT

17.1 The Client shall not, without the prior written consent of the Supplier, assign, transfer, charge, sub-contract, delegate, declare a trust over or deal in any other manner with all or any of its rights or obligations under these Terms.

17.2 The Supplier may at any time assign, transfer, charge, sub-contract, delegate, declare a trust over or deal in any other manner with all or any of its rights or obligations under these Terms.

18. NO PARTNERSHIP OR AGENCY

Nothing in these Terms is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, nor authorise any party to make or enter into any commitments for or on behalf of any other party. Each party confirms it is acting on its own behalf and not for the benefit of any other person.

19. VARIATION

No variation of these Terms shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

20. NOTICES

20.1 Any notice required to be given under these Terms shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in these Terms, or such other address as may have been notified by that party for such purposes, or sent by email to the other party’s email address:

(a) For the Client: as specified in the Order Form

(b) For the Supplier: as specified in the Order Form

20.2 A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first Business Day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by email shall be deemed to have been received at the time of transmission.

20.3 This clause 20 shall not apply to the service of legal proceedings.

21. GOVERNING LAW & JURISDICTION

21.1 These Terms and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by, and construed in accordance with, the laws of Ireland.

21.2 The parties irrevocably agree that the courts of Ireland have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with these Terms or its subject matter or formation (including non-contractual disputes or claims).

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This has been entered into on the date stated at the beginning of it.

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SCHEDULE 1

Hosting Services

1. Hosting set-up

The set-up phase of the Hosting Services includes those services provided by the Supplier or its contracted third parties to design, install, configure and test the Hosting Services.

2. Installation and configuration

The Supplier shall procure, install and configure the Hosting Services to provide access to the Software. This includes the installation of system and database software components, and configuration of infrastructure services.

3. Monitoring services

The Supplier shall provide monitoring of the computing, operating and networking infrastructure to detect and correct abnormalities.

4. Back-up, archiving and recovery services

The Supplier shall develop the back-up schedule, perform scheduled back-ups, provide routine and emergency data recovery, and manage the archiving process in accordance with its standard operational practices from time to time. In the event of data loss, the Supplier shall provide recovery services using reasonable commercial endeavours to try to restore the most recent back-up.

5. Release management and change control

The Supplier shall provide release management services to ensure that new releases, patch releases and other new versions are implemented as deemed necessary by the Supplier to maintain the Hosting Services.

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SCHEDULE 2

Maintenance and Support

1. Maintenance Events

Routine, planned maintenance of the hosting equipment, facility, Software or other aspects of the Hosting Services that may require interruption of the Hosting Services (“Maintenance Events”) shall, except for any emergency maintenance, not be performed during Normal Business Hours. The Supplier may interrupt the Services outside Normal Business Hours for unscheduled maintenance. Any Maintenance Events which occur during Normal Business Hours, and which were not requested or caused by the Client, shall be considered downtime for the purpose of service availability measurement. The Supplier shall at all times use reasonable endeavours to keep any service interruptions to a minimum.

The Supplier may determine, at its sole discretion, that providing appropriate service levels requires changes to the Hosting Service and may make those changes without approval from the Client. Any resulting increase to the Subscription Fee shall be subject to clause 7.6 of the Terms.

2. Maintenance

Maintenance includes all regularly scheduled error corrections, software updates and those upgrades limited to improvements to the Software. Support for additional features developed by the Supplier, as requested by the Client, may be purchased separately at the Supplier’s then current rates.

The Supplier shall maintain and update the Software. Should the Client determine that the Software includes a defect, the Client may at any time file error reports. During maintenance periods, the Supplier may, at its discretion, upgrade versions, install error corrections and apply patches to the hosted systems. The Supplier shall use reasonable endeavours to avoid unscheduled downtime for Software maintenance.

The Supplier shall maintain technical support on the two most current releases of the Software.

3. Technical support services

The Supplier shall provide the Client with technical support services through the Supplier Support Engineers (“SSEs”). The Client Support Representatives (“CSRs”) are authorised by the Client to contact the Supplier for technical support services via the Client helpdesk (the Client will be given access as part of the implementation stage). The Supplier shall provide technical support services only to the CSRs. The Client acknowledges that the CSRs shall be limited in number to four individuals at any one time.

The Supplier shall authorise the CSRs to access Supplier technical support. The Supplier technical support shall accept incident reports through its web-based ticketing system 24 hours a day, seven days a week. The Supplier technical support call centre shall accept calls for English language telephone support during Normal Business Hours within Business Days. The Supplier shall use reasonable endeavours to process support requests, issue trouble ticket tracking numbers if necessary, determine the source of the problem and respond to the Client. The Supplier technical support call centre shall respond to all support requests from CSRs within the time periods specified below, according to priority.

The relevant CSR and Supplier technical support shall jointly determine the priority of any defect, using one of following priorities:

The Client shall provide front-line support to CSRs only. However, CSRs may contact the Supplier technical support in order to report problems from Authorised Users that the CSRs cannot resolve themselves after they have performed a reasonable level of diagnosis.

Before the Supplier or the Client makes changes to integration interfaces between the Software and the Client’s internal data stores or systems, the Supplier or the Client shall provide notice to the other in order to ensure the continued operation of any integration interfaces affected by such changes. The Supplier shall provide the CSRs, or the Client shall provide the SSEs, with at least 45 days’ advance notice of such changes. Such notice shall include at least the new interface specifications and a technical contact to answer questions on these changes. The Supplier or the Client (as applicable) shall also provide up to 15 days of integration testing availability to ensure smooth transition from the previous interfaces to the new interfaces and the Client shall pay for all such services relating to integration testing carried out by the Supplier at the Supplier’s then current daily fee rates.

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SCHEDULE 3

Service Level Arrangements

1. Service availability

The Supplier shall use reasonable endeavours to provide at least a 99% uptime service availability level during Business Hours (“Uptime Service Level”). This availability refers to an access point on a cloud-based monitoring service. The Client is responsible for its own internet access. Availability does not include Maintenance Events as described in paragraph 1 of Schedule 2, Client-caused or third party-caused outages or disruptions (except to the extent that such outages or disruptions are caused by those duly authorised third parties sub-contracted by the Supplier to perform the Services), or outages or disruptions attributable in whole or in part to force majeure events within the meaning of clause 13.

2. Availability measurement

All measurements are performed at five-minute intervals during Business Hours and measure the availability of an availability test page within the Software within 30 seconds. Availability measurement begins on the first Business Day of the first calendar month, beginning not less than 30 days after Client acceptance of all of the Software delivered to the Client during the Implementation Services pursuant to clause 2. Availability measurement shall be carried out by the Supplier and is based on the monthly average percentage availability, calculated at the end of each calendar month as the total actual uptime minutes divided by total possible uptime minutes in the month. The Supplier shall keep and shall send to the Client, on request, full records of its availability measurement activities under these Terms.

3. Priority levels

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SCHEDULE 4

Service Processing, Personal Data and Data Subjects

1. Processing by the Supplier

The Supplier will conduct such processing of Personal Data as is necessary to perform the Services. Such processing will be conducted for as long as necessary for the Supplier to perform its obligations under these Terms.

2. Types of personal data

As determined and inputted by the Client through use of the Software and Services.

3. Categories of data subject

As determined by the Client.