SUPERFY
Master Services Agreement
This Master Services agreement governs Customer’s acquisition and use of Superfy Services and Products.
By accepting this agreement, by (1) clicking a box indicating acceptance, (2) executing an order form that references this agreement, or (3) using trial or pilot services, customer agrees to the terms of this agreement. If the individual accepting this agreement is accepting on behalf of a company or other legal entity, such individual represents that they have the authority to bind such entity and its affiliates to these terms and conditions, in which case the term “customer” shall refer to such entity and its affiliates. If the individual accepting this agreement does not have such authority, or does not agree with these terms and conditions, such individual must not accept this agreement and may not use the services.
1. DEFINITIONS AND INTERPRETATION
1.1 The definitions and rules of interpretation in this clause apply in this Agreement.
Agreement: these Terms of Service together with any Order Forms agreed between Superfy and Customer and any ancillary agreements or documents referred to herein.
Affiliate: 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 Customer to use the Services.
Beta Services: means Superfy services or functionality that may be made available to Customer to try at its option at no additional charge which is clearly designated as beta, limited release, developer preview, non-production, evaluation, or by a similar description.
Business Day: a day other than a Saturday, Sunday or public holiday in Ireland, Canada or Australia when banks in Dublin, Ottawa or Canberra are open for business.
Business Hours: 9.00 am to 5.30 pm local time in Ireland/ UK, Canada or Australia, each Business Day.
Customer: the Customer identified in the Order Form.
Customer Data: the information and data inputted by Customer, Authorised Users, or Superfy on Customer’s behalf for the purpose of using the Services or facilitating Customer’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 Agreement.
Co-Termination: the process where subsequent Order Form terms are applied pro-rated to the current Term controller, processor, data subject, personal data and processing (and process) or equivalent terms: have the meanings given in the Data Protection Laws.
DPA: the Data Processing Agreement available at https://www.superfy.com/terms-service/
Data Protection Laws: 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.
Data Connection and Hosting Fees: the fees in respect of the SIM cards, connectivity and additional hosting fees as set out in the Order Form.
Delivery Date: the date agreed between the parties when the Hardware will be delivered to the customer by Superfy.
Delivery Location: the address and locations for delivery as set out in the Order Form or as indicated on a Customer purchase order.
Effective Date: the date when this MSA is effective from as set out on the First Order Form signed by the customer or Customer Purchase Order
Fees: the fees for the Services as set out in the Order Form to include the Subscription Fees and Data Connection and Hosting Fees.
Hardware: means the equipment such as devices, sensors and associated peripherals supplied by Superfy as set out in an Order Form.
Initial Term: the initial term of this Agreement as set out in the Order Form.
Installation Date: the date agreed between the parties when the Hardware will be installed by Superfy or their Authorised Installers.
Intellectual Property Rights: patents, patentable rights, copyright, design rights, utility models, trade marks (whether or not any of the above are registered), trade names, rights in domain names, rights in inventions, rights in data, database rights, rights in know-how and confidential information, source code and all intellectual property rights concerning a technology application, and all other intellectual and industrial property and similar or analogous rights existing under the laws of any country and all pending applications for and right to apply for or register the same (present, future and contingent, and including all renewals, extensions, revivals and all accrued rights of action).
Order Form: the form signed by Customer confirming the order for the Services subject to these Terms of Service. Order Form shall include any subsequent ordering document for Services that is signed by the parties specifically referring to this Agreement.
Platform: the online software platform and applications provided by Superfy as part of the Services.
Renewal Term: the periods described in clause 12.1.
RMA Policy: the Superfy RMA Service Policy and Procedure available here.
Services: supply (and if applicable installation) of Hardware, provision of the Subscription Services and any other services as more particularly described in the Order Form.
Schedule: the schedules attached to an Order Form
Shipping Date: the date agreed between the parties when the Hardware is ready to be collected by the Customer’s shipping company.
Specifications: the data sheet in respect of the Hardware as may be published by Superfy from time to time.
Subscription Fees: the fees in respect of the Subscription Services as set out in the Order Form.
Subscription Services: access to the Platform and subscribed modules within that Platform as set out in clause 2.2 and the Order Form;
Subscription Term: unless otherwise stated in the Order Form, the 60 month term for subscription services.
Term: the Initial Term together with any subsequent Renewal Terms.
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.
Warranty Period: the period of 12 months from the date of shipment of the Hardware to Customer during which Customer may perform RMA.
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. 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. SERVICES
2.1 Superfy shall provide the Services in accordance with the terms and conditions of this Agreement.
2.2 During the Subscription Term and subject to the payment of the Fees, Superfy hereby grants to Customer a non-exclusive, non-transferable right, without the right to grant sublicences, of access to and use of the Platform during the Term.
2.3 Customer may designate an Authorised User as an administrator (or “master” administrator) with control over Customer’s service account, including management of Authorised Users and Customer Data. Customer is fully responsible for its choice of administrator and any actions they take. Customer agrees that Superfy’s responsibilities do not extend to the internal management or administration of the Platform for Customer.
2.4 In relation to the Authorised Users, Customer undertakes that:
2.4.1 each Authorised User shall keep a secure password for their use of the Platform and that each Authorised User shall keep his password confidential; and
2.4.2 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 Superfy’s other rights, Customer shall promptly disable such passwords and shall not issue any new passwords to any such individual.
3. HARDWARE DELIVERY, SHIPMENT AND INSTALLATION
3.1 Unless the customer chooses to manage their own shipping, all Hardware shall be delivered to Customer’s Delivery Location in accordance in accordance with a mutually agreed Incoterm or an Incoterm agreed by an approved quote from Superfy. Superfy shall use reasonable efforts to meet any stated delivery date but shall not be liable (in contract, negligence or otherwise) for any loss or damage resulting from its failure to do so, howsoever caused. Unless otherwise expressly agreed, Superfy may make delivery in one or more instalments.
3.2 Where installation is indicated on an Order Form, an installation date will be agreed with Customer and the installation shall be performed by Superfy or a third party engaged by Superfy. Customer must give full and adequate notice to installer and allow adequate time and access to the bins and sites for installation. In the event Customer gives less than forty eight (48) hours’ notice to reschedule, Superfy may at its discretion invoice Customer a rescheduling charge.
3.3 Risk in the Hardware purchased shall pass to Customer upon delivery to the Delivery Location. Notwithstanding any transfer of risk, title to the Hardware shall only pass to Customer on payment in full of the Hardware price.
3.4 The Subscription term shall commence 30 days after the Shipping Date, Delivery Date or Installation Date, depending on whether the Order form indicates that Customer or Superfy is performing the installation and whether the Customer or Superfy is managing the Shipping.
3.4 Where any delay in the Shipping date, Delivery date or Installation date is caused by the Customer, the Subscription term shall commence on the originally agreed date.
4. CUSTOMER’S OBLIGATIONS
4.1 Customer 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 Superfy.
4.2 Customer shall be responsible and liable for the acts and omissions of its Affiliates and Authorised Users who access the Services, as though they were the acts and omissions of Customer. Customer agrees to defend, indemnify and hold harmless Superfy, its Affiliates and subcontractors against any claims, costs, losses, damages or liabilities arising from the acts or omissions of its Affiliates and Authorised Users.
4.3 Customer 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.
4.4 Customer 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.
4.5 Customer shall (i) comply with all applicable laws and regulations with respect to its activities under this Agreement; (ii) obtain and shall maintain all necessary licences, consents, and permissions necessary for Superfy, Affiliates and subcontractors to perform their respective obligations under this Agreement; and (iii) ensure that its network and systems comply with specifications provided by Superfy 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 Customer’s network connections or telecommunications links.
4.6 Without prejudice to Superfy’s other rights in law or equity, Superfy reserves the right, without liability to Customer, to suspend or disable Customer’s or any Authorised Users access to the Services where Customer breaches the provisions of this clause 4 and Customer shall not thereby be entitled to claim any refund or compensation for such suspension. Given the nature of the obligations in this clause 4 and the impact a breach of same could have on Superfy and the Services, no remedy period shall be granted prior to Superfy exercising the suspension rights herein.
5. FEES AND PAYMENT
5.1 The parties have agreed the Subscription Term and Fees on the Order Form
5.2 Customer will provide Superfy with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Superfy. If Customer provides credit card information to Superfy, Customer authorizes Superfy to charge such credit card for all Services listed in the Order Form for the initial subscription term and any renewal subscription term(s) as set forth in the “Term and Termination” section below. Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, Superfy will invoice Customer in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced fees are due net 30 days from the invoice date. Customer is responsible for providing complete and accurate billing and contact information to Superfy and notifying Superfy of any changes to such information.
5.3 Superfy shall invoice Customer and Customer shall pay the Fees in accordance with the provisions of the Order Form and this clause 5. Fees for Renewal Terms are as specified in the Order Form or if not specified shall be at Superfy’s then-current rates, regardless of any discounted pricing in a prior Order.
5.4 If Superfy has not received payment of Fees within fifteen (15) days after the due date in accordance with the payment terms set out in the Order Form, and without prejudice to any other rights and remedies of Superfy, Superfy may subject to providing a further fifteen (15) days’ written notice, without liability to Customer, disable Customer’s password, account and access to all or part of the Services and Superfy 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.
5.5 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 Superfy’s invoice(s) at the appropriate rate. Customer will pay all taxes and duties (including withholding tax) assessed in connection with this Agreement. Customer shall pay all Fees in full without set off or counterclaim.
5.6 During each year of the Subscription Term, Superfy reserves the right to change the Fees and/or to institute new charges and fees, upon thirty (30) days prior notice to Customer.
5.7 Superfy’s fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder. If Superfy has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, Superfy will invoice Customer and Customer will pay that amount unless Customer provides Superfy with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Superfy is solely responsible for taxes assessable against it based on its income, property and employees.
6. SUPPORT AND MAINTENANCE
6.1 Customer may contact Superfy for support in relation to the Services by contacting support@superfy.com or calling published support phone numbers during Business Hours.
6.2 From time to time it may be necessary for Superfy to complete maintenance on the Superfy systems and Platform. If the maintenance is likely to result in unavailability of the Services then Superfy will endeavour to advise Customer in advance. Unscheduled maintenance in respect of a significant event may be required to be performed at any time without notice.
6.3 Where the customer has requested extra assistance beyond normal support, Superfy may quote the customer for professional services or software development services.
7. WARRANTIES AND DISCLAIMER
7.1 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.
7.2 Customer warrants that Customer Data, material, content or links provided to Superfy by or on behalf of Customer: (i) are owned by Customer 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 Rights, injury, damage or harm of any kind to any person or entity.
7.3 Superfy reserves the right to introduce new or enhanced features and functionalities to the Services without notifying the Customer in advance..
7.4 Superfy warrants in respect of the Hardware that:
7.4.1 it has title to sell the Hardware to Customer at the Effective Date;
7.4.2 the Hardware will conform in all material respects with the specification for such Hardware published by Superfy during the Warranty Period; and
7.4.3 that the Hardware is free from defects in workmanship and materials under normal use during the Warranty Period.
7.5 The Superfy RMA Policy shall apply in respect of any claims that the Hardware does not comply with the warranty set out in Clause 7.4.
7.6 Superfy shall not be liable to Customer for any act, or failure on the part of any third party (which includes but not limited to, the mobile network provider and mobile communication supplier used for the transmission of the communication and data from the Hardware to the Platform) upon whom, the parties rely for the performance of this agreement. Superfy disclaims any guarantee for the security and wireless network used for the transmission of data and information.
7.7 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 Superfy from this Agreement. Customer is solely responsible for determining the suitability of the Services for its use in light of any applicable legislation or regulations.
7.8 Superfy does not warrant that Customer’s use of the Services will be uninterrupted or error-free or that the Services will operate beyond their Specifications. There are technical limitations set out in the Specifications and the Service may be subject to limitations, delays and other problems inherent in the use of the internet and electronic communications.. Customer acknowledges and agrees that it shall not solely rely on the Services in respect of any health safety and other risks identified in the use case it deploys the Services for. Superfy is not responsible for any delays, delivery failures, or any damage, losses, claims or liabilities resulting from the transfer of data over communications networks and facilities, including the internet or arising in connection with the technical limitations set out in a Specification.
7.9 Customer may choose to use the Services with third-party platforms. Use of third-party platforms is subject to Customer’s agreement with the relevant provider and not this Agreement. Superfy 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 Customer Data. If Customer enables a third-party platform with the Services, Superfy may access and exchange Customer Data with the third-party platform on Customer’s behalf.
8. PERSONAL DATA
8.1 In providing its Services under this Agreement, Superfy may be required to process personal data on Customer’s behalf. In such circumstances, the parties record their intention that Customer and its Affiliates (as applicable) shall be the data controller and Superfy shall be a data processor and each party shall comply with the DPA.
8.2 Customer acknowledges that Superfy may collect and use anonymised data from the Platform relating to outcomes, usage data and other information. This data shall be irreversibly anonymised and shall therefore no longer be considered personal data under the Data Protection Laws.
9. INTELLECTUAL PROPERTY RIGHTS
9.1 Customer acknowledges and agrees that Superfy and/or its licensors own all Intellectual Property Rights in the Services and Platform. Except as expressly stated herein, this Agreement does not grant Customer 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 and Platform. To the extent that any modifications or improvements to the Services and Platform are carried out under or in connection with this Agreement, all Intellectual Property Rights in any resulting improvement or modifications shall be assigned to and shall vest with and be solely owned by Superfy and/or its licensors.
9.2 Customer shall own all right, title and interest in and to all of Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Data.
10. INDEMNITY
10.1 Superfy will indemnify Customer in respect of any and all damages, awards of damages, losses, costs, expenses, fees (including reasonable legal and professional 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, Superfy will at its expense and option either: (i) procure the right for Customer 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 Customer fees paid for any unused portion of the Services.
10.2 Notwithstanding the above, Superfy shall have no liability to Customer to the extent that any claim is based upon (i) modifications to the Services and/or Hardware made by anyone other than Superfy or a party authorised by Superfy; (ii) Customer’s failure to use modifications to the Services and/or Hardware provided by Superfy to avoid infringement or misappropriation; or (iii) unauthorised use or misuse of the Services and/or Hardware.
10.3 The rights granted to Customer under Clause 10.1 shall be Customer’s sole and exclusive remedy and Superfy’s entire liability for any alleged or actual infringement of Intellectual Property Rights of any third party.
10.4 Customer shall defend indemnify and hold harmless Superfy, its Affiliates and each of its officers, employees agents and subcontractors from and against all claims, demands, damages, awards of damages, losses, costs, expenses and liabilities (including any regulatory fines and reasonable legal and professional fees) that result or arise in connection with: (i) Customer’s or its Authorised User’s unauthorised use of the Services; (ii) Customer’s or its Authorised User’s infringement of Superfy’s Intellectual Property Rights; (iii) Customer’s or its Authorised User’s material breach of this Agreement including any warranties or representations; and (iv) Customer’s or its Authorised User’s breach of applicable laws.
10.5 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”), 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 defence 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 defence thereof, including settlement negotiations in connection with the action, and will be responsible for the costs of such defence, negotiations and proceedings. The Indemnifying Party will have sole control of the defence 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 defence of the action or claim at its own expense.
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 fraudulent misrepresentation, any other liability which cannot be excluded or limited by law.
11.2 To the maximum extent permitted by applicable law, Superfy will not have any liability to Customer for any loss of 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 Superfy has been advised of the possibility of such.
11.3 Subject to clauses 11.1 and 11.2, to the maximum extent permitted by applicable law, Superfy’s and its Affiliates total aggregate liability arising out of or related to this Agreement or the 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 Customer 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. Thereafter, this Agreement shall automatically renew for the renewal terms of 12 months each (Renewal Term) unless either party notifies the other party of termination, in writing, at least 90 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 Superfy wishes to modify pricing for the Services for such a Renewal Term it may do so in accordance with clause 5.
12.2 When the Customer signs subsequent Order Forms, the Term of those subscriptions shall co-terminate with the original Term of this MSA. When the remaining Term of this MSA is less than 12 months, the Co-Termination date shall be a minimum of 12 months from the date of the Order Form.
12.2 Either party shall be entitled to terminate the Agreement on written notice in the event of:
12.2.1 a material breach of this Agreement by the other party which, if capable of remedy, is not remedied by the defaulting party within 90 days of its receipt of written notice of the breach from the non-defaulting party;
12.2.2 fraud or wilful default of the other party; or
12.2.3 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.
12.3 Superfy may terminate the Agreement on written notice where a Superfy invoice remains unpaid for thirty days after receipt by Customer of written notice of non-payment.
12.4 On termination of this Agreement for any reason:
12.4.1 all licences and rights of access granted under this Agreement 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, Superfy shall use reasonable commercial endeavours to deliver a back-up of Customer Data to Customer within 90 days of its receipt of such a written request, provided that Customer has at that time paid all fees and charges outstanding at and resulting from termination. If Superfy does not receive any such request within 90 days of the date of termination, it may destroy or otherwise dispose of any of Customer 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. CONFIDENTIALITY
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.
13.4 If the Receiving Party is confronted with legal action to disclose the Confidential Information received under this Agreement from the Disclosing Party, the Receiving Party shall, unless prohibited by the applicable laws, provide prompt written notice to the Disclosing Party to allow the Disclosing Party an opportunity to seek a protective order or other relief that it deems appropriate, and the Receiving Party shall reasonably assist the Disclosing Party in such efforts. If disclosure is nonetheless required, the Receiving Party shall limit its disclosure to only the portion of the Confidential Information which must be disclosed as advised by its legal counsel.
13.5 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 or to compel specific performance of this clause.
13.6 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
Neither party shall have any liability to the other party 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, 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 the party 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. MISCELLANEOUS
15.1 Waiver. No failure or delay by a Party to exercise any right or remedy provided under this Agreement or by law, or a single or partial exercise of such right or remedy, shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy.
15.2 Invalidity. 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.
15.3 Entire Agreement. 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. Additional Order Forms may be agreed between the parties referencing this Agreement, each of which shall form part of the Agreement.
15.4 Assignment. Either party may assign on written notice 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 a party is participating. Any attempt to assign this Agreement in violation of this provision shall be void and of no effect. This Agreement will bind and inure to the benefit of the parties and their respective permitted successors and assigns.
15.5 Publicity. Neither party may publicly announce this Agreement except with the other party’s prior consent or as required by applicable laws. However, Superfy may include Customer and its trademarks in Superfy’s Customer lists and promotional materials but will cease this use at Customer’s written request.
15.6 No agency. 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.
15.7 Notice. 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 Business Day after transmission.
15.8 Survival. The following Clauses shall survive the termination or expiration of this Agreement: clause 4, 7, 8, 9, 10, 11, 12, 13, 14 and this clause 15.
15.9 Amendment. Superfy may amend these Terms of Service at any time on providing thirty (30) days’ written notice to Customer.
15.10 Counterparts. 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.
15.11 Dispute Resolution. The Parties shall do their best acting in good faith to settle amicably any dispute, controversy or claim arising out of or in connection with the existence, validity, construction, performance and termination of the Agreement (or any terms thereof). Escalation to the Senior Management of the Parties shall be the preferred dispute resolution methodology. If Senior Management cannot resolve the dispute within 30 days of first notification of the dispute the matter shall be referred to the courts of Ireland in accordance with clause 15.12.
15.12 Governing Law and Jurisdiction. 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).