Terms of Service
1.1 The definitions and rules of interpretation in this clause apply in this Agreement.
Affiliate: means an entity which controls, is controlled by or is under common control with a party hereto, where “control” means the power to control the composition of the board of directors of the relevant party (whether by contract, corporate law or other means), or the possession of more than half of the voting equity share capital of the relevant party, or the ability to consolidate such company’s financial statements with those of such party in accordance with generally accepted accounting principles.
Agreement: means these Terms of Service and the Order Form(s) including all Annexes, Appendices, and Schedules referred to therein. In the event of conflict between the Terms of Service and any Order Form, the Order Form shall prevail.
Authorised Users: means those employees, agents and independent contractors of Purchaser or, where applicable, its Affiliates who are authorised by Purchaser to use the Services.
Business Day: means any day which is not a Saturday, Sunday or public holiday in Ireland.
Confidential Information: means all documentation, technical information, software, business information, feedback, pricing of the Services, 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.
Data Protection Laws: means to the extent applicable to the provision of any Services under this Agreement, all privacy, security, and data protection laws, rules, and regulations of any applicable jurisdiction including any jurisdiction in which the Services are being provided or the Personal Data is being processed and any jurisdiction from which Boxever provides any of the Services.
Documentation: means the documents made available to Purchaser including without limitation by Boxever online via www.boxever.com or such other web address notified by Boxever.
Effective Date: means the date appearing on the Order Form.
Force Majeure Event: means without limitation events which are unpredictable, unforeseeable, irresistible and beyond the parties’ reasonable control, such as any extremely severe weather, flood, landslide, earthquake, storm, lightning, fire, subsidence, epidemic, sabotage, acts of terrorism, outbreak of military hostilities (whether or not war is declared), riot, explosions, strikes or other labour unrest, civil disturbance, sabotage, expropriation by governmental authorities or other act or any event that is outside the reasonable control of the concerned party.
Intellectual Property: means intellectual property rights in or related to the Service or the Software of any nature anywhere in the world whether registered, registerable or otherwise, including patents, trademarks, registered designs and domain names, trade or business names, goodwill, copyright and rights in the nature of copyright, design rights, rights in databases, moral rights, know-how, feedback, and any other intellectual property rights which subsist in computer software, computer programs, websites, whether registrable or not.
Professional Services: means the Professional services ordered by Purchaser and as more fully described in the Order Form and in the Statement of Work in the form set out in Schedule 4 of the Order Form and which shall be finalised and agreed separately by the parties.
Order Form: means the form signed by Purchaser confirming the order for the Services and Professional Services and any additional work items. Order Form shall include any subsequent ordering document for Services that is signed by the parties specifically referring to this Agreement.
Personal Data: means any and all personal data in respect of which Purchaser is a data controller (which includes Personal Data of Purchaser’s Customers) 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.
Purchaser Customers: means all customers and potential customers of Purchaser the details of which Boxever stores on its system as part of the provision of Services.
Purchaser Data: means all data and information (including Personal Data), originating from Purchaser, Purchaser’s Contractors (including without limitation third party channels or email service providers) agents, Purchaser Customers, or Boxever on Purchaser’s behalf for the purpose of using the Services or facilitating Purchaser’s use of the Services.
Services: means the Software and services described in the Order Form and Data Processing Addendum Annex A and includes without limitation on line databases, system and network interfaces, internal network, disk storage, operating systems, Software, engines, and the Documentation provided under this Agreement.
Software: means the online software applications provided by Boxever as part of the Services.
Third Party Providers: means third party entities engaged by Boxever to provide services which services are delivered as part of the Services or are delivered alongside the Boxever Services. The Third Party Providers are listed on the Order Form.
Virus: means any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by rearranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
1.2 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. Words in the singular shall include the plural and vice versa. 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 email.
2. Boxever’s Obligations
2.1 Boxever shall, during the term, provide the Services to Purchaser and at the Purchaser’s request to its designated Affiliates (as notified in writing to Boxever) on and subject to the terms of this Agreement and shall perform the Services with reasonable skill and care. Purchaser and its designated Affiliates are granted a non-exclusive, non-transferable right and license to use the Services and the Documentation during the term solely for the specific Use Cases outlined in the Order Form.
2.2 Boxever reserves the right to introduce new or enhanced features and functionalities to the Services. Should any enhanced features and/or functionality be incompatible with features in use in the previously released version of the Software, then Boxever shall provide at least sixty (60) days written notice to Purchaser before it introduces any such feature or functionality.
2.3 Support for the Boxever Services described in Order Form shall be provided according to the service levels set forth in Schedule 3 of the Order Form. The Service Level Arrangements state the Purchaser’s full and exclusive right and remedy, and Boxever’s only obligation and liability in respect of, the performance and/or availability of the Service, or their non-performance and non-availability.
2.4 With regard to Professional Services, within five (5) days of Boxever’s delivery to Purchaser of any deliverable (where specifically deliverable the parties have agreed that such deliverable shall be subject to review and testing), Purchaser shall review the deliverable to confirm that it functions in material conformance with the applicable portion of any specification set forth by Boxever, in accordance with the agreed acceptance criteria. If the deliverable fails in any material respect to so conform, Purchaser is required to give Boxever a detailed written description of any such non-conformance (an “Error”), within the five (5)-day review period. Boxever shall use commercially reasonable endeavours to correct any such Error within a reasonable time and upon completion, shall submit the corrected deliverable to the Purchaser for review and testing as set forth above. Upon accepting any deliverable submitted by Boxever, Purchaser shall provide a written acceptance of the deliverable. If Purchaser does not provide any written comments within the five (5)-day review period described above, or if the deliverable is found to conform to the specification, the deliverable shall be deemed accepted at the end of the applicable review period.
3. Purchaser’s Obligations
3.1 Purchaser shall
(i) provide Boxever with all necessary timely co-operation and access in relation to this Agreement including security access information and configuration services. In the event of any delays attributable to Purchaser, Boxever may adjust any agreed timetable or delivery schedule as reasonably necessary;
(ii) comply with all applicable laws and regulations with respect to its activities under this Agreement including Data Protection Laws and direct marketing laws;
(iii) ensure that Services are used in accordance with the terms and conditions of this Agreement and shall be responsible for any breach by Purchaser and/or Authorised Users and hold Boxever harmless for its acts or omissions as well as those of Authorised Users and its contractors and agents;
(iv) obtain and shall maintain all necessary licences, consents, and permissions necessary for Boxever, its Third Party Providers and subcontractors to perform their respective obligations under this Agreement;
(v) ensure that its network and systems comply with specifications provided by Boxever and will be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to Boxever’s data centre’s and systems, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to Purchaser’s network connections or telecommunications links or caused by traversing the internet; and
(vi) ensure that each Authorised User shall keep a secure password for his or her account which password shall be treated as confidential.
3.2 Purchaser shall not, and shall procure that its Authorised Users shall not, use the Services
(i) to post, send, email, access, store, distribute or transmit make available
(a) any material that is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
(b) any material that facilitates illegal activity; depicts sexually explicit images; promotes unlawful violence;
(c) any material that is discriminatory based on race, gender, color, religious belief, sexual orientation, disability, or any other protected class; or any other illegal activity; or causes damage or injury to any person or property.
(d) any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” “unsolicited commercial communications’, “unsolicited commercial communications’ including by email or SMS or other form of communication prohibited by the CAN-SPAM Act of 2003, the anti-spam laws of the countries Purchaser Customers live in or the applicable direct marketing laws any other unauthorized forms of solicitation. The Purchaser must ensure that its “From” “To” and “Reply To” fields are accurate and clearly identify the sender’s domain name and email addresses;
(e) any material that contains Viruses;
(f) any material that encourages conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable law or regulation;
(g) any content which may subject to any rules and regulations promulgated under the U.S. Export Administration Act of 1979 (as amended from time to time) or the U.S. Arms Export Administration Act of 1976 (as amended from time to time) or restricted under applicable export laws and regulations. Purchaser will not export or re-export directly or indirectly (including via remote access) any part of the Services or Documentation to any country for which a validated license is required under any export laws without first obtaining a validated license and complying with this Agreement;
(h) any material that contains ‘sensitive personal data’ as defined in Directive 95/46/EC;
(i) any material that promotes sexual, adult content, weapons and any explosives, tobacco or tobacco-related, drugs or political, hacking, lead sales and work-at-home offers promoting schemes such as “get rich quick”, “build your wealth” and “financial independence”;
(ii) to interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service; or
(iii) to gain unauthorized access to the Service or its related systems or networks.
3.3 Purchaser shall not, except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties, (i) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means; (ii) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; (iii) access all or any part of the Services and Documentation in order to build a product or service which competes with the Services; (iv) work around any technical limitations in the Service (iv) use the Services to provide services to third parties; (v) remove or alter any trademark, logo, copyright or other proprietary notices, symbols or labels (whichever is applicable); (vi) subject to clause 15.5, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit the Services (vii) otherwise make the Services available to any third party, or (viii) attempt to obtain, or assist third parties in obtaining access to the Services, other than as provided under this clause 3.
(i) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means;
(ii) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software;
(iii) access all or any part of the Services and Documentation in order to build a product or service which competes with the Services;
(iv) work around any technical limitations in the Service (iv) use the Services to provide services to third parties;
(v) remove or alter any trademark, logo, copyright or other proprietary notices, symbols or labels (whichever is applicable);
(vi) subject to clause 15.5, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit the Services
(vii) otherwise make the Services available to any third party, or
(viii) attempt to obtain, or assist third parties in obtaining access to the Services, other than as provided under this clause 3.
3.4 Without prejudice to Boxever’s other rights in law or equity, Boxever reserves the right, without liability to Purchaser, to suspend or disable Purchaser’s or any Authorised Users access to the Services or Services or suspend performance of the Professional Service where Purchaser breaches the provisions of this clause or any terms of this Agreement and Purchaser shall not thereby be entitled to claim any refund or compensation.
3.5 Purchaser shall be responsible for the acts and omissions of its Purchaser’s Affiliates, its Authorised Users, Purchasers’ Contractors, subcontractors and agents who access the Services, as though they were the acts and omissions of the Purchaser. Purchaser agrees to defend, indemnify and hold harmless Boxever, its Affiliates, Third Party Providers and subcontractors against any claims, losses, damages or liability arising from the acts or omissions of its Affiliates, Authorised Users and their respective subcontractors and agents.
4. Purchaser Data
4.1 Purchaser shall own all rights, title and interest in and to all of Purchaser Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of Purchaser Data. Purchaser hereby grants and represents and warrants that it has the right to grant Boxever an irrevocable, perpetual, non exclusive royalty free and fully paid worldwide license to process Purchaser Data, which includes processing by Affiliates, Third Party Providers and subcontractors to the extent contemplated by this Agreement.
4.2 In the event of any loss or damage to Purchaser Data, Purchaser’s sole and exclusive remedy shall be for Boxever to use reasonable commercial endeavours to restore the lost or damaged Purchaser Data from the latest back-up of such Purchaser Data maintained by Boxever. Boxever shall not be responsible for any loss, destruction, alteration or disclosure of Purchaser Data caused by reasons outside the control of Boxever or a Third Party Provider.
4.3 In providing its Services including Professional Services under this Agreement, Boxever may be required to process Personal Data on Purchaser’s behalf, including without limitation Personal Data relating to Purchaser Customers. The parties record their intention that the Purchaser and its Affiliates (as applicable) shall be the data controller and Boxever shall be a data processor and in any such case:
(i) Boxever shall process the Personal Data only in accordance with the terms of this Agreement and any lawful instructions reasonably given by the Purchaser from time to time and the Purchaser , having been duly authorised to do so by its Affiliates, shall act as agent for such Affiliates for such purposes and Boxever shall be entitled to treat the instructions given by the Purchaser in respect of the Personal Data as having been duly given by such Affiliates;
(ii) each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage;
(iii) Purchaser and its Affiliates shall, at all times, comply with their respective obligations as data controller and shall be responsible for processing of all Personal Data processed under or in connection with this Agreement by their respective contractors or agents and Authorised Users in accordance with their obligations under applicable Data Protection Laws;
(iv) Purchaser shall ensure that all direct marketing undertaken or intended to be undertaken by Purchaser through use of Boxever or Third Party Providers will comply with any applicable laws;
(v) Purchaser acknowledges and agrees that the Personal Data may be transferred or stored outside the country where Purchaser or the Purchaser Customer is located in order to carry out the Services and Professional Services and other obligations under this Agreement but in no event outside the European Economic Area (“EEA”) other than as expressly requested by the Purchaser in accordance with clause 4.4;
(vi) Purchaser warrants that it is entitled to transfer the relevant Personal Data including that of Purchaser Customers to Boxever and warrants further that Boxever is entitled to transfer Personal Data to its Affiliates, Third Party Providers and subcontractors so that they each respectively may lawfully use, process and transfer such Personal Data in accordance with this Agreement;
(ix) Boxever may create anonymous aggregated data records from any Personal Data by excluding information that makes the data personally identifiable to an individual.
4.4 Boxever will only transfer Personal Data to an importing entity based in a jurisdiction outside the EEA on the Purchaser’s specific written request. Purchaser shall be responsible for satisfying itself that the relevant country or territory ensures an adequate level of protection for the rights and freedoms of data subjects in relation to the processing of Personal Data and in making such a request it confirms that it has satisfied itself that any such transfer carried out in the manner specified to Boxever by the Purchaser will be in compliance with Data Protection Laws and direct marketing laws. Purchaser shall defend, agrees to indemnify and hold harmless Boxever and its Affiliates from and against any and all claims, costs, losses, damages, judgments, penalties, interest and expenses (including reasonable attorneys’ fees and costs) arising out of any claim, action, audit, investigation, regulatory action, inquiry or other proceeding that arises out of or relates to Purchaser’s failure to comply with any applicable laws and regulations in connection with the transfer of the Personal Data outside the EEA, including any applicable Data Protection Laws. This indemnification obligation set forth herein shall survive the termination of Purchaser’s use of the Service and/or the termination of the Agreement.
4.5 The Service is provided on a software-as-a-service, hosted basis. As such, Purchaser authorizes Boxever to permit Boxever’s Third Party Providers, including its host provider, to have access certain same data, including Purchaser Data. These Third Party Providers are only permitted to process this data for the purposes of providing their specifically contracted services to Boxever.
4.6 Boxever will back up the Purchaser Data as set out in Boxever Security Document (which has been provided separately). In the event of any loss or damage to Purchaser Data, Purchaser’s sole and exclusive remedy shall be for Boxever to use reasonable commercial endeavours to restore the lost or damaged Purchaser Data from the latest back-up of such Purchaser Data maintained by Boxever. Boxever shall not be responsible for any loss, destruction, alteration or disclosure of Purchaser Data caused by any unauthorized third party.
4.7 The terms of the DPA in Appendix 1 to this TOS are in effect. With regard to the subject matter of the DPA, in the event of inconsistencies between the provisions of the DPA and the TOS and/or Order Form, the provisions of the DPA shall prevail.
5. Fees and Payment
5.1 Boxever will invoice fees in accordance with the Order Form and Purchaser shall pay the fees in accordance with the payment terms set out in the Order Form.
5.2 If Boxever has not received payment within fifteen (15) days after the due date, and without prejudice to any other rights and remedies of Boxever, Boxever may, without liability to Purchaser, disable Purchaser’s and all Authorised Users passwords, accounts and access to all or part of the Services and Boxever shall be under no obligation to provide any or all of the Services or Professional Services while the invoice(s) concerned remain unpaid; and interest shall accrue on a daily basis on such due amounts at an annual rate equal to 3% over the then current base lending rate of the refinancing base rate of the European Central Bank, from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
5.3 All amounts and fees stated or referred to in this Agreement: (i) shall be payable in euro or such other currency as set out in the Purchase Order; (ii) are non-cancellable and non-refundable unless stated elsewhere in the Agreement; and (iii) are exclusive of all sales, use, value-added, withholding and other taxes and duties which shall be added to Boxever’s invoice(s) at the appropriate rate. Purchaser will pay all taxes and duties (including withholding tax) assessed in connection with this Agreement and its performance by any authority but excluding any tax measured by the net or gross income of Boxever.
5.4 Boxever may continually review and verify access Purchaser’s compliance with the material terms of this Agreement, including but not limited to clause 3 and clause 5.
6. Intellectual Property
6.1 Purchaser acknowledges and agrees that Boxever and/or its licensors own all Intellectual Property in the Services, Software and the Documentation. Except as expressly stated herein, this Agreement does not grant Purchaser 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 Services, Software or the Documentation. To the extent that any modifications or improvements to the Services, Software and/or the Documentation are carried out under or in connection with this Agreement, whether by Boxever alone or jointly with Purchaser, and whether based on ideas or suggestions from Purchaser, 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 Boxever.
6.2 Boxever hereby grants Purchaser a worldwide, perpetual, non-exclusive, non-transferable, royalty-free licence to use for its internal business purposes reports and other materials developed by Boxever as a result of or as an output of the Professional Services (“Contract Results”). All rights and title in and to the Contract Results shall remain vested in or shall vest upon creation in Boxever.
7.1 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”), which may include Confidential Information belonging to Affiliates or Third Party Providers. 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 (and furthermore, in the case of Boxever to its Affiliates, Third Party Providers and subcontractors) (“Representatives”) on a “need-to-know” basis, provided that such Representatives execute a written agreement with materially the same terms and conditions as this clause 7 and the Receiving Party remains ultimately liable for any breach thereof. In the case of Boxever, it may make disclosures to investors or potential investors subject to such investors being aware of and agreeing in writing comply with the terms equivalent to the terms of this clause 7.
7.2 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 7.3.
7.3 This clause 7 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).
8.1 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.
8.2 Boxever warrants that the Services will operate substantially in accordance with the Documentation.
8.3 Purchaser warrants that the Purchaser Data, material, content or links provided to Boxever by or on behalf of Purchaser:
(i) are owned by Purchaser 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.
8.4 With respect to Professional Services, Boxever warrants that the Professional Services will be performed in a professional and workmanlike manner, in accordance with generally accepted industry standards. Purchaser must notify Boxever promptly of any claimed breach of the foregoing warranty. Purchaser’s exclusive remedy and Boxever’s entire liability for breach of the foregoing warranty will be, at Boxever’s option, re-performance of the deficient Professional Services. Any deficiencies in the Professional Services must be reported to Boxever in writing within thirty (30) days of performance of the Professional Services in order to receive the foregoing warranty remedies.
8.5 Other than with respect to the express warranties set forth herein, all implied warranties, including those of non-infringement, merchantability and fitness for a particular purpose, are hereby disclaimed and excluded by Boxever. Purchaser 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.
8.6 The Service may be subject to limitations, delays and other problems inherent in the use of the internet and electronic communications. Boxever is not responsible for any delays, delivery failures, or other damage resulting from such problems. Boxever does not warrant that Purchaser’s use of the Services will be uninterrupted or error-free; nor that the Services, Documentation and/or the information obtained by Purchaser through the Services will meet the Purchaser’s requirements.
8.7 Where Third Party Providers are used, as listed in the Order Form, Purchaser acknowledges that Boxever 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. Boxever shall contract with the Third Party Providers for such services and Purchaser agrees that Boxever will not be liable to Purchaser for any loss, damage, claim or liability howsoever arising from or related to Third Party Providers software and/or services beyond that which can be claimed by Boxever under the terms of the contract with such Third Party Providers. The Service Level Agreement in Schedule 2 of the Order Form will not apply to the extent that any failure is caused by any failure or delay in the Third Party Providers’ software and/or services.
8.8 Boxever, 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, regardless of whether the data is actually received by Boxever.
8.9 From time to time, Boxever may assist Purchaser, at Purchaser’s request, by permitting Purchaser or providing assistance to Purchaser, to integrate the Service with the services of third parties with whom Purchaser has independently contracted (“Purchaser’s Contractors”). Such integrations will be completed and deployed as part of the Professional Services and will be subject to acceptance by Purchaser prior to deployment, thereinafter the “Accepted Integration”. Boxever disclaims all responsibility for the actions of Purchaser’s Contractors or for loss, damages or claims arising from Accepted Integrations, save to the extent that any liability, loss, damage or claim arises in whole or in part as a consequence of Boxever’s breach, negligence or wilful default. subject to the foregoing, Boxever makes no representations or warranties as to the suitability of the Purchaser’s Contractors or of the successful integration of Boxever service with the services of Purchaser’s Contractors. Boxever is not responsible in any way for the Accepted Integrations other than as set out above or for the acts or omissions of such Purchaser’s Contractors.
9.1 Boxever shall defend, indemnify and hold harmless Purchaser from all claims, defense costs (including reasonable attorneys’ fees and expenses), agreed settlements and finally awarded judgments payable to a third party arising out of the alleged infringement or misappropriation of any trademark, copyright or trade secret with respect to Purchaser’s authorized use of the Services.
9.2 Notwithstanding the above, Boxever shall have no liability to Purchaser to the extent that any claim is based upon
(i) modifications to the Services made by anyone other than Boxever;
(ii) a claim for which Purchaser must indemnify Boxever below;
(iii) combination of the Services with software not provided by Boxever; or
(v) Purchaser’s failure to use modifications to the Services provided by Boxever to avoid infringement or misappropriation.
9.3 If the exercise by Purchaser of any of the rights granted to it under this Agreement is enjoined or, in Boxever’s reasonable opinion, is likely to be enjoined due to the type of infringement or misappropriation specified above, Boxever, at Boxever’s option and expense, may:
(i) procure for Purchaser a license to continue to exercise all of the rights granted under this Agreement with respect to the Services or
(ii) modify the allegedly infringing software to avoid the infringement or misappropriation.
If options (i) and (ii) above cannot be accomplished despite the reasonable efforts of Boxever, then Boxever may both:
(a) terminate Purchaser’s rights and Boxever’s obligations under this Agreement with respect to such Services and
(b) refund to Purchaser the unearned portion of any prepaid fees. The rights granted to Purchaser under this clause 9.3 shall be Purchaser’s sole and exclusive remedy for any alleged infringement of any intellectual property rights of any third party.
9.4 Purchaser shall defend, indemnify and hold harmless Boxever, its Affiliates, Third Party Providers and subcontractors (and their respective employees, directors, officers, shareholders, attorney and representatives) in respect of any and all damage, awards of damages, other awards, loss, losses, costs, expenses, fees (including the reasonable fees of professional advisors), fines and penalties to the fullest extent permissible under the laws of the place in which the indemnity is sought directly and to the extent arising out of claims by third parties, including Purchaser Customers, arising out of or in connection with the
(i) unauthorised use of the Services or infringement of Boxever’s or a Third Party Provider’s Intellectual Property
(ii) breach of this Agreement including any warranties or representations or obligations
(iii) breach of applicable laws or regulations including Data Protection Laws; and
(iv) any violations of third party rights due to Purchaser’s use of the Services and Third Party Services.
9.5 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 9.3 or clause 9.4, 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. Limitation of Liability
10.1 Nothing in these terms and conditions will limit or exclude any liability in a way that is not permitted under any applicable law.
10.2 To the maximum extent permitted by applicable law, Boxever will not have any liability to Purchaser or any Authorised Users for any lost profits, loss of data, loss of use, data inaccuracy, reputational damage, costs of procurement or substitute goods or services, or for any indirect, special, incidental, punitive, or consequential damages however caused and under any theory of liability whether or not Boxever has been advised of the possibility of such.
10.3 Subject to clause 10.1, notwithstanding anything in this Agreement to the contrary, except for liability for death or personal injury resulting from Boxever’s negligence or the negligence of its employees or agents acting in the course of their employment or agency or for fraudulent misrepresentation, to the maximum extent permitted by applicable law, Boxever’s and its Affiliates total aggregate liability arising out of or related to this Agreement or the Services or Professional 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 the Purchaser under this Agreement.
11. Term and Termination
11.1 This Agreement shall, unless otherwise terminated as provided hereunder, come into force on the Effective Date and shall continue for the Term as set out in the Order From.
11.2 Without prejudice to any other rights or remedies to which the parties may be entitled, this Agreement may be terminated by either party as follows:
(i) on thirty (30) days written notice to the other if the other has committed an irremediable material breach of this Agreement, specifying the nature of such breach. In the case of any invoiced amount being overdue, Boxever may terminate where Purchaser fails to pay having been given 20 days written notice to pay. Such 20 days is in addition to the 15 days referred to in clause 5.2;
(ii) with immediate effect by notice in writing if the other has committed a remediable material breach or wilful and repeated non-material breaches and fails to remedy the same within thirty (30) days of receipt from the other of a notice clearly identifying the nature of the breach(es) and requiring such breach(es) to be rectified;
(iii) with immediate effect by notice in writing if any Force Majeure Event prevents the performance of the whole or a substantial part of the other party’s obligations for a continuous period of thirty (30) days after the date on which it should have been performed; or
(iv) with immediate effect by notice in writing if the other should become insolvent or otherwise unable to pay its debts as and when they fall due, should have appointed to it a liquidator, receiver or administrator, should enter into an arrangement with its creditors or have presented against it a petition for its winding up other than for the purposes of effecting a solvent reorganization which it does not promptly apply to have set aside, or be ordered to be wound up or liquidated or for any other reason cease or threaten to cease trading or business; or
(v) where Boxever’s contract with a Third Party Provider is no longer in force and Boxever is not able to secure a replacement service acceptable to the Purchaser.
11.3 On termination of this Agreement:
(i) all licences granted under this Agreement and all right to access the Services shall immediately terminate;
(ii) each party shall return and make no further use of any Documentation, Confidential Information, and other items (and all copies of them) belonging to the other party;
(iii) the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced;
(iv) save as required by applicable law, Boxever may destroy or otherwise dispose of any of Purchaser Data in its possession unless Boxever receives, no later than ten days after the effective date of the termination of this Agreement, a written request for the delivery to Purchaser of the then most recent back-up of Purchaser Data. Boxever shall use reasonable commercial endeavours, at Purchaser’s cost, to deliver the back-up, in a standard industry format determined by Boxever, within 30 days of the request, provided that Purchaser is, at that time, up to date with paid all fees and charges due.
12. Force Majeure
12.1 Neither party shall in any circumstances be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure results from a Force Majeure Event. 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.
13. Dispute Resolution
13.1 Subject to clause 13.4 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 Boxever and the Purchaser 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.
13.2 If a dispute cannot be resolved pursuant to the provisions of clause 14.1 within fourteen (14) days, that dispute shall be referred to a senior representative of Boxever and of the Purchaser for resolution.
13.3 If a dispute cannot be resolved by the Parties’ respective senior representative pursuant to clause 14.2 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).
13.4 Clauses 13.1 – 13.3 (inclusive) shall be without prejudice to the rights of termination stated in clause 11 and in addition shall not prevent Boxever or the Purchaser 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 Boxever or the Purchaser to liability.
14.1 A waiver of any right under this Agreement 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 this Agreement are cumulative and do not exclude rights provided by law.
14.2 The parties acknowledge and agree that in the event of any infringement of either party’s intellectual property rights, or rights in confidential information the non-breaching party will suffer irreparable damage for which damages would not necessarily be an adequate remedy at law. Accordingly, the non-breaching party will be entitled to seek injunctive and other equitable remedies to prevent or restrain, temporarily or permanently, such breach, in addition to any other remedy that such non-breaching may have at law or in equity.
14.3 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.
14.4 This Agreement, and any documents referred to in it, constitute the whole agreement between the parties and supersedes any previous arrangement, understanding or agreement between them relating to the subject matter they cover. Each of the parties acknowledges and agrees that in entering into this Agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether a party to this Agreement or not) relating to the subject matter of this Agreement, other than as expressly set out in this Agreement.
14.5 Neither party shall without the prior written consent of the other party assign, transfer, charge, or deal in any other manner with all or any of its rights or obligations under this Agreement, save that Boxever may without the prior written consent of Purchaser, assign, transfer, charge or deal in any other manner or encumber any of the moneys due or becoming due under this Agreement. Furthermore, either party may assign all of its rights and obligations under this Agreement to
(i) an Affiliate,
(iii) a third party participating in a merger, acquisition, sale of assets or other corporate reorganization in which Boxever is participating. Any attempt to assign this Agreement in violation of this provision shall be void and of no effect. Subject to the foregoing, this Agreement will bind and inure to the benefit of each party’s successors and permitted assigns. Boxever may appoint subcontractors without prior approval of the Purchaser.
(ii) a purchaser of all or substantially all assets related to this Agreement, or
14.6 Purchaser agrees
(ii) to act as a reference client
(iii) to grant permission and a license to allow Boxever to use Purchaser name and logo in its website and marketing material collateral; and
(iv) to participate with Boxever at two conferences/events, such events to be agreed by the parties. Participation shall be by senior representatives from Purchaser.
14.7 Nothing in this Agreement is intended to or shall operate to create a partnership between the parties, or authorize either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
14.8 Any notice required to be given under this Agreement shall be in writing and
(i) sent to the other party by registered and recorded delivery at its address set out in this Agreement, or such other address as may have been notified by that party for such purposes or
(ii) by email to such email addresses agreed between the parties for receipt of contractual notices.
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). A correctly addressed notice shall be deemed to have been received at the time at which it would have been delivered in the normal course of post and
(ii) 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.
14.9 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.
14.10 This Agreement 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 as follows:
(i) if Purchaser is based in North America, Massachusetts state law governs the interpretation of this agreement and applies to claims for breach of it, regardless of conflict of laws principles. The parties irrevocably agree that the courts of Massachusetts shall 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); or
(ii) if Purchaser is based outside of North America, the laws of Ireland apply. 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 this Agreement or its subject matter or formation (including non- contractual disputes or claims).
(a) The U.N. Convention of Contracts for the International Sale of Goods is expressly excluded from any interpretation of this Agreement.