SAAS TERMS OF SERVICE
The definitions and rules of interpretation in this clause apply in this agreement.
Agreement: means these Terms of Service together with any Order Forms agreed between the parties and any ancillary agreements or documents referred to herein.
Affiliates: means any entity directly or indirectly controlling or controlled by or under direct or indirect common control with another entity; and “control” means the power, directly or indirectly, to direct, or cause the direction of the management and policies of an entity through the ownership of voting securities, by contract or otherwise.
Authorised Users: those employees, contractors, subcontractors, and agents who are authorised by Client to use the Services.
Business Day: a day other than a Saturday, Sunday or public holiday in Ireland when banks in Dublin are open for business.
Client Data: the information and data (including Personal Data) inputted by Client, Authorised Users, or Optahaul on Client’s behalf for the purpose of using the Services or facilitating Client’s use of the Services.
Confidential Information: all documentation, technical information, software, business information, feedback, trade secrets or know how or other materials of a confidential nature or that are disclosed in confidence by either party to the other during the term of this contract.
DPA: the Data Processing Agreement attached at Schedule 1.
Data Protection Laws: means the provisions of the EU General Data Protection Regulation 2016/679 (the “GDPR”) as amended or replaced from time to time, and any regulations or statutory instruments enacted thereunder, and any other applicable legislation relating to the collection, processing, transfer, or retention of personal data.
Effective Date: the date as set out on the Order Form.
Fees: the fees for the Services as set out in the Order Form.
Initial Term: the initial term of this agreement as set out in the Order Form.
Normal Business Hours: 9.00 am to 5.30 pm local Irish time, each Business Day.
Personal Data: means any and all personal data including sensitive personal data within the meaning of the Data Protection Laws in respect of which Client is a data controller and which will be processed in the performance of the Services under this Agreement whether that data or information is in oral, visual or written form or is recorded in any other medium.
Renewal Term: the period described in an Order Form.
Services: the Software and any other services as more particularly described in the Order Form.
Software: the online software applications provided by Optahaul as part of the Services.
Term: has the meaning given in Clause 12.1 (being the Initial Term together with any subsequent Renewal Terms).
Third Party Providers: means third party entities engaged by Optahaul to provide services which services are delivered as part of the Services or are delivered alongside the Services. The Third Party Providers are listed in Schedule 1.
Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
- Clause, schedule and paragraph headings shall not affect the interpretation of this agreement. A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors or permitted assigns. A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established. Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular. Reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it. A reference to writing or written includes faxes and e-mail.
2. ACCESS TO SERVICES
2.1 Subject to the terms and conditions of this agreement, Optahaul hereby grants to Client a non-exclusive, non-transferable right, without the right to grant sublicences, of access to and use of the Services during the Term.
2.2 Client may designate an Authorised User as an administrator (or “master” administrator) with control over Client’s service account, including management of Authorised Users and Client Data. Client is fully responsible for its choice of administrator and any actions they take. Client agrees that Optahaul’s responsibilities do not extend to the internal management or administration of the Services for Client.
2.3 In relation to the Authorised Users, Client undertakes that:
2.3.1 each Authorised User shall keep a secure password for their use of the Services and that each Authorised User shall keep his password confidential; and
2.3.2 if through any investigation it is revealed that any password has been provided to any individual who is not an Authorised User, then without prejudice to Optahaul’s other rights, Optahaul shall promptly disable such passwords and shall not issue any new passwords to any such individual.
2.4 The Services are not intended for, and may not be used by, anyone under the age of 16. Client is responsible for ensuring that all Authorised Users are at least 16 years old.
2.5 If Client receives access to the Services on a free or trial basis or as an alpha, beta or early access offering (“Trials and Betas”), use is permitted only for Client’s evaluation during the period designated by Optahaul or agreed in the Order. Trials and Betas are optional and either party may terminate Trials and Betas at any time for any reason. Trials and Betas may be incomplete or include features that Optahaul may never release, and their features and performance information are Optahaul’s Confidential Information. Notwithstanding anything else in this Agreement, Optahaul provides no warranty or indemnity for Trials and Betas and its liability for Trials and Betas shall not exceed €100.
3. CLIENT’S OBLIGATIONS
3.1 Client shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and, in the event of any such unauthorised access or use, promptly notify Optahaul.
3.2 Client shall be responsible for the acts and omissions of its Affiliates and Authorised Users who access the Services, as though they were the acts and omissions of Client. Client agrees to indemnify Optahaul, its Affiliates, Third Party Providers and subcontractors against any claims, costs, losses, damages or liability arising from the acts or omissions of its Affiliates and Authorised Users.
3.3 Client shall not during the course of its use of the Services access, store, distribute or transmit any Viruses, or any material that (i) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; or (ii) facilitates illegal activity, depicts sexually explicit images, promotes unlawful violence; or (iii) is discriminatory or otherwise illegal or causes damage or injury to any person or property; (iv) contains any unsolicited or unauthorized advertising, promotional or marketing materials; or (v) encourages conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable law or regulation.
3.4 Client shall not, except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under this agreement; (i) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Services in any form or media or by any means; (ii) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of Services; (iii) access all or any part of the Services in order to build a product or service which competes with the Services; or (iv) work around any technical limitations in the Services.
3.5 Client shall (i) comply with all applicable laws and regulations with respect to its activities under this Agreement including Data Protection Laws; (ii) obtain and shall maintain all necessary licences, consents, and permissions necessary for Optahaul, its Third Party Providers and subcontractors to perform their respective obligations under this Agreement; and (iii) ensure that its network and systems comply with specifications provided by Optahaul and will be solely responsible for procuring and maintaining its network connections and for all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to Client’s network connections or telecommunications links.
3.6 Without prejudice to Optahaul’s other rights in law or equity, Optahaul reserves the right, without liability to Client, to suspend or disable Client’s or any Authorised Users access to the Services where Client breaches the provisions of this clause 3 and Client shall not thereby be entitled to claim any refund or compensation for such suspension.
4. FEES AND PAYMENT
4.1 Optahaul shall invoice Client and Client shall pay the Fees in accordance with the provisions of the Order Form and this clause 4. Fees for Renewal Terms are as specified in the Order Form or if not specified shall be at Optahaul’s then-current rates, regardless of any discounted pricing in a prior Order.
4.2 If Optahaul has not received payment of Fees within fifteen (15) days after the due date, and without prejudice to any other rights and remedies of Optahaul, Optahaul may, without liability to Client, disable Client’s password, account and access to all or part of the Services and Optahaul shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid. In addition, interest shall accrue on a daily basis on such due amounts at an annual rate equal to 8 percentage points above the European Central Bank’s reference rate or if such rate shall exceed any applicable permissible legal interest rate, then at the highest legally permissible rate, commencing on the due date and continuing until fully paid, whether before or after judgment.
4.3 All amounts stated or referred to in this Agreement are non-cancellable and non-refundable unless stated elsewhere in the Agreement and are exclusive of all sales, use, value-added, withholding and other taxes and duties which shall be added to Optahaul’s invoice(s) at the appropriate rate. Client will pay all taxes and duties (including withholding tax) assessed in connection with this Agreement. Client shall pay all Fees in full without set off or counterclaim.
4.4 Where any usage limitations are indicated on an Order Form, Optahaul shall notify Client in the event of such limitations being breached at any time together with details of increased rates to apply to continued usage during the billing period.
4.5 Optahaul reserves the right to change the Fees and/or to institute new charges and fees at the end of the Initial Term or then-current Renewal Term, upon thirty (30) days prior notice to Client (which may be sent by email)
5. SUPPORT AND MAINTENANCE
5.1 Client may contact Optahaul for support in relation to the Services by contacting support@optahaul.
5.2 From time to time it may be necessary for Optahaul to complete maintenance on the Optahaul system. If the maintenance is likely to result in unavailability of the Services, then Optahaul will endeavour to advise Client in advance. Unscheduled maintenance in respect of a significant event may be required to be performed at any time without notice.
6. WARRANTIES AND DISCLAIMER
6.1 Each party warrants that it has the full corporate power (i) to enter into this Agreement, (ii) to carry out its obligations hereunder, and (iii) to grant the rights herein granted to the other party.
6.2 Client warrants that Client Data, material, content or links provided to Optahaul by or on behalf of Client: (i) are owned by Client or are provided with the express consent from the third party holding any ownership rights (including copyright) over such material, or, alternatively, are in the public domain, and are not owned by any third party or otherwise covered by copyright laws; (ii) do not breach the rights of any person or entity, including rights of publicity, privacy, or under applicable Data Protection Laws or direct marketing laws and are not defamatory; and (iii) do not result in consumer fraud (including being false or misleading), product liability, tort, breach of contract, breach of Intellectual Property, injury, damage or harm of any kind to any person or entity.
6.3 Other than with respect to the express warranties set forth herein, the Services are provided “as is” and all warranties express or implied, representations, conditions and all other terms of any kind whatsoever implied by statute or common law, including those of non-infringement, merchantability and fitness for a particular purpose, all are, to the fullest extent permitted by applicable law, are hereby disclaimed and excluded by Optahaul from this Agreement. Client is solely responsible for determining the suitability of the Services for its use in light of any applicable legislation or regulations including without limitation Data Protection Laws.
6.4 Optahaul does not warrant that Client’s use of the Services will be uninterrupted or error-free or that the Services will operate in combination with third party services used by Client save where otherwise agreed. The Service may be subject to limitations, delays and other problems inherent in the use of the internet and electronic communications. Optahaul is not responsible for any delays, delivery failures, or other damage resulting from the transfer of data over communications networks and facilities, including the internet.
6.5 Client may choose to use the Services with third-party platforms. Use of third-party platforms is subject to Client’s agreement with the relevant provider and not this Agreement. Optahaul does not control and has no liability for third-party platforms, including their security, functionality, operation, availability or interoperability or how the third-party platforms or their providers use Client Data. If Client enables a third-party platform with the Services, Optahaul may access and exchange Client Data with the third-party platform on Client’s behalf.
6.6 Optahaul reserves the right to introduce new or enhanced features and functionalities to the Services.
7. PROFESSIONAL SERVICES AND INTEGRATIONS
7.1 Any additional Services requested by Client shall be agreed in an Order Form. Client will give Optahaul timely access to any Client materials reasonably needed for the additional Services, and if Client fails to do so, Optahaul’s obligation to provide the Services will be excused until access is provided. Optahaul will use Client materials only for purposes of providing the Services. Client may use Services deliverables only as part of its authorized use of the Service, subject to the same terms as for the Service in clause 2 and clause 3.
7.2 From time to time, Optahaul may assist Client, at Client’s request, to integrate the Services with the services of third parties with whom Client has independently contracted (“Client’s Contractors”). Such integrations will be completed and deployed as part of the Services and will be subject to acceptance by Client prior to deployment, thereinafter the “Accepted Integration”. Save to the extent that any liability, loss, damage or claim arises in whole or in part as a consequence of Optahaul’s material breach of this Agreement, negligence or wilful default, Optahaul disclaims all responsibility for the actions of Client’s Contractors for loss, damages or claims arising from Accepted Integrations. Subject to the foregoing, Optahaul make no representations or warranties as to the suitability of Client’s Contractors or of the successful integration of Optahaul Services with the services of Client’s Contractors.
8.1 In providing its Services under this Agreement, Optahaul may be required to process Personal Data on Client’s behalf. In such circumstances, the parties record their intention that Client and its Affiliates (as applicable) shall be the data controller and Optahaul shall be a data processorand each party shall comply with the DPA.
8.2 The Services are provided on a software-as-a-service hosted basis. As such, Client authorizes Optahaul to permit Optahaul’s Third Party Providers, including its host provider, to act as subprocessors and to have access certain same data, including Client Data. These Third Party Providers are only permitted to process this data for the purposes of providing their specifically contracted services to Optahaul.
8.3 Where Third Party Providers are used, Client acknowledges that Optahaul makes no representation or warranty in respect of Third Party Providers software and/or services and, that these are provided subject to, and with the benefit of, the terms of such Third Party Providers.
8.5 Subject to clause 8.6 in the event of any loss or damage to Client Data which Optahaul processes, Client’s sole and exclusive remedy against Optahaul in respect of any loss of Client Data shall be for Optahaul to use reasonable commercial endeavours to restore the lost or damaged Client Data from the latest back-up of such Client Data maintained by Optahaul. Optahaul shall not be responsible for any loss, destruction, alteration or disclosure of Client Data caused by reasons outside the control of Optahaul or a Third Party Provider.
8.6 Save for its obligations under Data Protection Laws and data back up as set out in Clause 8.5, Optahaul and its licensors, agents or subcontractors shall not be responsible or liable for (i) the use, deletion, correction, destruction, damage, loss or failure to store any data, or (ii) any unauthorised access to, or alteration of, transmissions or data, or any material, information or data sent or received.
9. INTELLECTUAL PROPERTY RIGHTS
9.1 Client acknowledges and agrees that Optahaul and/or its licensors own all intellectual property rights in the Services. Except as expressly stated herein, this agreement does not grant Client any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services. To the extent that any modifications or improvements to the Services and Software are carried out under or in connection with this Agreement, whether by Optahaul alone or jointly with Client, and whether based on ideas or suggestions from Client, all intellectual property rights to such underlying ideas and in any resulting improvement or modifications shall be assigned to and shall vest with and be solely owned by Optahaul and/or its licensors.
9.2 Client shall own all right, title and interest in and to all of Client Data (that is not personal data) and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Client Data.
10.1 Optahaul will indemnify Client in respect of any and all damage, awards of damages, losses, costs, expenses, fees (including the reasonable legal fees), fines and penalties to the extent arising out of claims by third parties that the Services infringes a third-party’s copyright, trademark existing or patent granted as of the date of delivery in any country in which the Services are delivered. If Services are or are likely to be held to be infringing, Optahaul will at its expense and option either: (i) procure the right for Client to continue using it, (ii) replace it with a non-infringing equivalent, (iii) modify it to make it non-infringing, or (iv) terminate this Agreement and refund to Client fees paid for any unused portion of the Services.
10.2 Notwithstanding the above, Optahaul shall have no liability to Client to the extent that any claim is based upon (i) modifications to the Services made by anyone other than Optahaul; (ii) a claim for which Client must indemnify Optahaul below; (iii) combination of the Services with software not provided by Optahaul or specified in any agreed documentation; (iv) Client’s failure to use modifications to the Services provided by Optahaul to avoid infringement or misappropriation; (v) unauthorised use of the Services; or (vi) any Trials and Betas or other free or evaluation use.
10.3 Client shall indemnify Optahaul, its Affiliates, Third Party Providers and subcontractors from and against all third party claims, suits, demands and actions and for resulting damages, awards of damages, losses, costs, expenses and liabilities (including any regulatory fines and reasonably legal fees) that result or arise from; (i) unauthorised use of the Services or infringement of Optahaul’s or a Third Party Provider’s Intellectual Property (ii) material breach of this Agreement including any warranties or representations or obligations and (iii) any breach of applicable law including violations of third party rights due to Client’s use of the Services.
10.4 If any action shall be brought against one of the parties hereto in respect to which indemnity may be sought against the other party (the “Indemnifying Party”) pursuant to clause 10.1 or clause 10.3, the Indemnifying Party’s obligation to provide such indemnification will be conditioned on prompt notice of such claim (including the nature of the claim and the amount of damages and nature of other relief sought) being provided to the Indemnifying Party by the party against which such action is brought (the “Indemnified Party”). The Indemnified Party shall cooperate with the Indemnifying Party in all reasonable respects in connection with the defense of any such action at the expense of the Indemnifying Party. The Indemnifying Party will, upon written notice to the Indemnified Party, conduct all proceedings or negotiations in connection with the action, assume the defense thereof, including settlement negotiations in connection with the action, and will be responsible for the costs of such defense, negotiations and proceedings. The Indemnifying Party will have sole control of the defense and settlement of any claims for which it provides indemnification hereunder, provided that the Indemnifying Party will not enter into any settlement of such claim without the prior approval of the Indemnified Party, which approval will not be unreasonably withheld. The Indemnified Party shall have the right to retain separate counsel and participate in the defense of the action or claim at its own expense.
10.5 The rights granted to Client under Clause 10.1 shall be Client’s sole and exclusive remedy and Optahaul’s entire liability for any alleged or actual infringement of intellectual property rights of any third party.
11. LIMITATION OF LIABILITY
11.1 Nothing in this Agreement limits or excludes liability of either Party in respect of any claims for death or personal injury caused by negligence, fraud or any other liability which cannot be excluded or limited by law.
11.2 To the maximum extent permitted by applicable law, Optahaul will not have any liability to Client for any lost profits, loss of business, loss of revenue, loss of data, reputational damage, or for any indirect, special, incidental, punitive, or consequential damages however caused and under any theory of liability whether or not Optahaul has been advised of the possibility of such.
11.3 Subject to clauses 2.5, 11.1 and 11.2, to the maximum extent permitted by applicable law, Optahaul’s and its Affiliates total aggregate liability arising out of or related to this Agreement or the Services or any Third Party Providers’ services under any theory of law (including liability for negligence or breach of statutory duty or an indemnity claim) shall not exceed the total amount of the Fees paid by Client in the three months preceding the claim under which the liability has arisen.
12. TERM AND TERMINATION
12.1 This Agreement shall commence on the Effective Date and shall unless otherwise terminated as provided in this Clause 12 continue for the Initial Term and, thereafter, this agreement shall automatically renew for the Renewal Terms unless either party notifies the other party of termination, in writing, at least 30 days before the end of the Initial Term or any Renewal Term, in which case this agreement shall terminate upon the expiry of the applicable Initial Term or Renewal Term or otherwise terminated in accordance with the provisions of this agreement. The Initial Term together with any subsequent Renewal Terms shall constitute the Term. If Optahaul wishes to modify pricing for the Services for such a Renewal Term it may do so in accordance with clause 4.
12.2 Trials and Betas shall run for the period indicated on an Order Form. Where Trials and Betas end and the parties wish to contract for the continued provision of the Services, a new Order Form shall be agreed.
12.3 Either party shall be entitled to terminate the Agreement on written notice in the event of:
12.3.1 a material breach of this Agreement by the other party which, if capable of remedy, is not remedied by the defaulting party within fifteen days of its receipt of written notice of the breach from the non-defaulting party;
12.3.2. fraud or wilful default of the other party; or
12.3.3 the other party becoming insolvent or unable to pay its debts when due (as defined by applicable law) or has a liquidator, receiver or manager appointed to it, or a winding-up order instituted against it.
12.4 On termination of this agreement for any reason:
12.4.1 all licences granted under this agreement shall immediately terminate and all right to access the Services shall immediately terminate;
12.4.2 each party shall return and make no further use of any equipment, property, documentation and other items (and all copies of them) belonging to the other party;
12.4.3 Upon receipt of a written request, Optahaul shall use reasonable commercial endeavours to deliver a back-up of Client Data to Client within 30 days of its receipt of such a written request, provided that Client has at that time paid all fees and charges outstanding at and resulting from termination. If Optahaul does not receive any such request within 30 days of the date of termination, it may destroy or otherwise dispose of any of Client Data in its possession; and
12.4.4 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 the agreement which existed at or before the date of termination shall not be affected or prejudiced.
13.1 Each Party (the “Receiving Party”) acknowledges that, in the course of this Agreement, it may obtain Confidential Information from the other Party, (the “Disclosing Party”). The Receiving Party shall keep in confidence all Confidential Information disclosed by the Disclosing Party and shall not use Confidential Information except in furtherance of this Agreement. The Receiving Party shall not disclose any Confidential Information to any person without the Disclosing Party’s prior written consent except that the Receiving Party may disclose the Confidential Information to its officers, employees, independent contractors and agents (“Representatives”) on a “need-to-know” basis, provided that such Representatives are bound by a written agreement with materially the same terms and conditions as this clause 13 and the Receiving Party remains ultimately liable for any breach thereof.
13.2 The obligations of confidentiality shall continue during the term of this Agreement and thereafter, unless and until such Confidential Information falls within one of the exceptions outlined in clause 13.3.
13.3 This clause 13 shall not apply with respect to information the Receiving Party can document: (a) is in the public domain as a result of no act or omission of the Receiving Party or its employees or agents; (b) is received by the Receiving Party from third parties without restriction and without breach of a duty of nondisclosure by such third party; (c) was independently developed by the Receiving Party without reliance on the Confidential Information; or (d) is required to be disclosed by operation of law or by order of a court or administrative body of competent jurisdiction (provided that, where permitted under law, prior to such disclosure, the Receiving Party shall first give notice to the Disclosing Party such that the Disclosing Party has the opportunity to contest such order or requirement of disclosure or seek appropriate protective order).
13.4 Any breach or threatened breach by the receiving party of an obligation under this Agreement may cause the Disclosing Party immediate and irreparable harm for which damages alone may not be an adequate remedy. Consequently the Disclosing Party has the right, in addition to other remedies available at law or in equity, to seek injunctive relief against the receiving party (and its agents, assigns, employees, officers and directors, personally) or to compel specific performance of this clause.
13.5 A party must notify the Disclosing Party in writing, giving full details known to it immediately, when it becomes aware of any actual, suspected, likely or threatened breach by any person of any obligation in relation to the Confidential Information, or any actual, suspected, likely or threatened theft, loss, damage, or unauthorised access, use or disclosure of or to any Confidential Information
14. FORCE MAJEURE
Optahaul shall have no liability to Client under this agreement if it is prevented from or delayed in performing its obligations under this agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of Optahaul or any other party), failure of a utility service or transport or telecommunications network, 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, pandemic, epidemic, provided that Client is notified of such an event and its expected duration. 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 three (3) months, the party not affected may terminate this Agreement by giving one calendar month written notice to the other party.
15. DISPUTE RESOLUTION
15.1 Subject to clause 15.4 below, in the event of any dispute, difference or question arising out of, or in connection with, this Agreement or its formation (a dispute): (i) the party claiming that a dispute has arisen must give written notice to the other party setting out full particulars of the dispute; and representatives of Optahaul and Client shall (a) each use best efforts to resolve the dispute through good faith negotiations and informal dispute resolution techniques; and (b) continue to perform their obligations under this Agreement as far as possible as if the dispute had not arisen, pending final settlement of the dispute.
15.2 If a dispute cannot be resolved pursuant to the provisions of clause 15.1 within fourteen (14) days, that dispute shall be referred to a senior representative of Optahaul and of Client for resolution.
15.3 If a dispute cannot be resolved by the Parties’ respective senior representative pursuant to clause 15.2 within fourteen (14) days, then either party may resort to such other methods of dispute resolution as may be available to them (including, for the avoidance of doubt, litigation).
15.4 Clauses 15.1 – 15.3 (inclusive) shall be without prejudice to the rights of termination stated in clause 12 and in addition shall not prevent Optahaul or Client from applying for injunctive relief in the case of: (i) breach or threatened breach of confidentiality; (ii) infringement or threatened infringement of its Intellectual Property rights; or (iii) infringement or threatened infringement of the Intellectual Property rights of a third party, where such infringement could expose Optahaul or Client to liability.
16.1 No forbearance, delay or granting of time by either party in or before enforcing the Agreement shall prejudice its rights.
16.2 If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
16.3 This Agreement (which includes all Order Forms and the DPA), and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.
16.4 Either party may assign all of its rights and obligations under this Agreement to (i) an Affiliate, (ii) a purchaser of all or substantially all assets related to this Agreement, or (iii) a third party participating in a merger, acquisition, sale of assets or other corporate reorganization in which Optahaul is participating. Any attempt to assign this Agreement in violation of this provision shall be void and of no effect.
16.5 Neither party may publicly announce this Agreement except with the other party’s prior consent or as required by applicable laws. However, Optahaul may include Client and its trademarks in Optahaul’s customer lists and promotional materials but will cease this use at Client’s written request.
16.6 Nothing in this Agreement is intended to or shall operate to create a partnership or joint venture between the parties, or authorize either party to act as agent for the other.
16.7 Any notice to be given by either party for the purposes of the Agreement shall be sent by mail/email to the contact party whose details are set out in the Order Form. A notice delivered (i) by hand shall be deemed to have been received when delivered or if delivery is not in business hours, at 9am on the first business day following delivery, (ii) by post if correctly addressed by prepaid registered delivery shall be deemed delivered two days from the date of posting and five days for pre-paid registered airmail, and (iii) by email shall be deemed to have been received at 9.00am on the next working day (being a day other than a Saturday, Sunday or bank holiday when banks in Ireland are open for business) after transmission.
16.8 The following Clauses shall survive the termination or expiration of this Agreement: clause 3, 4, 6, 8, 9, 10, 11, 12, 13 and this clause 16.
16.9 No variation of this Agreement shall be valid or effective unless it is in writing, refers to this Agreement and is duly signed or executed by, or on behalf of, each party.
16.10 This Agreement may be executed in any number of counterparts, each of which when executed and delivered shall constitute an original of this Agreement, but all the counterparts shall together constitute the same agreement.
16.11 This Agreement and any disputes or claims arising out of or in connection with it are governed by and construed in accordance with the laws of the Republic of Ireland. The parties irrevocably agree that the courts of the Republic of Ireland have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non- contractual disputes or claims).