STANDARD INTUITY TERMS AND CONDITIONS
These standard Terms and Conditions (as such terms and conditions may be amended or varied from time to time) are incorporated into and shall be deemed to form legally binding provisions of each Sales Contract and Services Contract entered into between Intuity Technologies Ltd (‘INTUITY’) and each party designated in such a contract as ‘THE CUSTOMER’.
INTUITY reserves the right to, and shall on a regular basis, update, amend and vary the terms of these Terms and Conditions, provided that the current up to date terms and conditions applicable to each Sales Contract and Services Contract entered into between INTUITY and THE CUSTOMER shall at all times be available for review and inspection at https://www.intuity.ie/website-terms-and-conditions/
By accessing and using INTUITY’S website and/or accepting any partial provision or performance of any Services by INTUITY and/or accepting delivery of any Equipment from INTUITY and/or by making any payment to INTUTITY, THE CUSTOMER is deemed to accept and agrees to be bound by these standard Terms and Conditions set out herein (as amended from time to time) and it shall not be necessary for THE CUSTOMER and/or INTUITY to expressly accept these standard Terms and Conditions (as they may be amended from time to time) in writing, or for INTUITY to evidence that a copy of these standard Terms and Conditions or any amendment to these standard Terms and Conditions has been expressly provided to and accepted by THE CUSTOMER in order for them to be deemed accepted by and legally binding on THE CUSTOMER.
1. INTERPRETATION
The following definitions and rules of interpretation apply in these Terms and Conditions:
A. Definitions:
Business Day: a day other than a Saturday, Sunday or public holiday in Ireland, when banks in Dublin are open for business;
Consumer Price Index: means the ‘Consumer Price Index’ as published periodically by the Irish Central Statistics office;
THE CUSTOMER: the party designated as ‘THE CUSTOMER’ in a Sales Contract or Services Contract;
Deliverables: All Equipment, documents, products and materials developed or supplied by INTUITY as part of or in relation to a Sales/ Services Contract;
Effective Date: means the date upon which a Services Contract becomes effective as defined in Clause 5A;
Equipment: the specific items of equipment to be provided by INTUITY to THE CUSTOMER in accordance with a Sales Contract;
Equipment Specification: any specification for the Equipment, including any relevant plans or drawings, that is agreed in writing by INTUITY and THE CUSTOMER;
Intellectual Property Rights: means all patents, copyrights, design rights, trade marks, service marks, trade secrets, know-how, database rights and other rights in the nature of intellectual property rights (whether registered or not) and all applications for the same which may now or in the future subsist anywhere in the world, including the right to sue for and recover damages for past infringements;
Sales Contract: the contract between INTUITY and THE CUSTOMER for the sale and supply of Equipment in accordance with a quotation, order or any other document evidencing the terms upon which INTUITY will sell or hire equipment to THE CUSTOMER together with these Terms and Conditions, any Specific Terms and Conditions and any Third Party Terms and Conditions;
Sales/ Services Contract: either the Sales Contract or the Services Contract or both, incorporating these standard Terms and Conditions (as may be amended);
Services: the specific services and additional ‘out of scope’ services provided by INTUTITY to the Customer in accordance with Clause 2 as set forth in detail in a Services Contract.
Services Contract: the contract between INTUITY and THE CUSTOMER for the provision of Services by INTUITY to THE CUSTOMER in accordance with a Statement of Work, proposal, quotation or any other document evidencing the terms upon which INTUITY will provide, or procure the provision of, Services to THE CUSTOMER together with these Terms and Conditions, any Specific Terms and Conditions and any Third Party Terms and Conditions;
Service Level Agreement means any service level arrangements that may be agreed and entered into between INTUITY and THE CUSTOMER, which may be included in a Statement of Work;
Statement of Work means the service proposal and any other services specification for the Services as set out under separate cover and agreed between the parties;
Specific Terms and Conditions: INTUITY’S specific terms and conditions (if any) applicable to the Services (or any part of them) referred to in a Services Contract or Equipment referred to in a Sales Contract;
Term: means the term of a Services Contract as defined in Clause 5A;
Terms and Conditions: these terms and conditions as amended from time to time;
Third Party Terms and Conditions: the terms and conditions of any third party manufacturer or supplier of Equipment sold by INTUITY pursuant to a Sales Contract or Services to be provided by INTUITY pursuant to a Services Contract;
B. Interpretation:
(i) a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
(ii) A reference to a party includes its personal representatives, successors and permitted assigns.
(iii) A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
(iv) Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
(v) A reference to writing or written includes fax and email.
2. SERVICES
A. During the Term of a Services Contract, INTUITY will provide THE CUSTOMER with the scope of services set forth in detail in the applicable Services Contract.
B. During the Term of a Services Contract, the parties may agree that INTUITY shall provide additional ‘out of scope’ services to THE CUSTORMER, which additional ‘out of scope services shall be set forth in detail in the applicable Services Contract or otherwise shall be documented in writing between the parties and shall form part of the existing underlying Services Contract.
C. The Services may include applications or other services provided by third parties.
D. CHANGE ORDER
EITHER PARTY MAY PROPOSE CHANGES TO THE SCOPE OF THE SERVICES UNDER A SERVICES CONTRACT BUT NO PROPOSED CHANGES SHALL COME INTO EFFECT UNTIL A RELEVANT “CHANGE ORDER” DOCUMENT HAS BEEN ACCEPTED BY BOTH PARTIES. A CHANGE ORDER SHALL BE A DOCUMENT SETTING OUT THE PROPOSED CHANGES AND THE EFFECT THAT THOSE CHANGES WILL HAVE ON THE UNDERLYING SERVICES CONTRACT, WHICH MAY INCLUDE:
A. Services agreed to be provided under the Services Contract;
B. Fees/Costs/Charges applicable to the amended scope of Services;
C. Timetable for delivery/performance of Services by INTUITY; and
D. Any of the other terms as may be relevant.
IF INTUITY WISHES TO MAKE A CHANGE TO THE SERVICES IT SHALL PROVIDE A DRAFT CHANGE ORDER TO THE CUSTOMER. IF THE CUSTOMER WISHES TO MAKE A CHANGE TO THE SERVICES IT SHALL NOTIFY INTUITY IN WRITING, AND PROVIDE AS MUCH DETAIL AS INTUITY REASONABLY REQUIRES OF THE PROPOSED CHANGES, INCLUDING THE TIMING OF, AND REASONS FOR, THE PROPOSED CHANGES. INTUITY SHALL, AS SOON AS REASONABLY PRACTICABLE AFTER RECEIVING THE INFORMATION ABOVE, PROVIDE A DRAFT CHANGE ORDER TO THE CUSTOMER. IF THE PARTIES AGREE TO A CHANGE ORDER, THEY SHALL SIGN IT AND THAT CHANGE ORDER SHALL AMEND THE RELEVANT SERVICES CONTRACT, AS APPLICABLE.
3. DUTIES OF THE PARTIES
A. Duties of INTUITY.
INTUITY agrees to use commercially reasonable efforts to timely deliver and support the Services for THE CUSTOMER in accordance with industry standards.
B. Duties of THE CUSTOMER.
THE CUSTOMER agrees to
(i) timely submit all payments to INTUITY in accordance with these Terms and Conditions;
(ii) provide INTUITY with a list of THE CUSTOMERS systems and procedures that must be provided by THE CUSTOMER to INTUITY in writing in a form and substance satisfactory to INTUITY, in advance of commencement of each Services Contract;
(iii) provide INTUITY with access to THE CUSTOMER’s facilities and equipment, including access to THE CUSTOMER’s computer systems (which systems shall accord with THE CUSTOMER’s list of systems and procedures referred to above);
(iv)provide INTUITY with adequate and suitable facilities and space for INTUITY’s personnel to work at THE CUSTOMER’s facility and on such computer systems.
(v)provide Intuity with such primary contact details for THE CUSTOMER and its employees/agents as INTUITY may reasonably request and further undertakes to notify INTUITY on the occurrence of any changes to such details on an ongoing basis (address etc) in a timely manner;
(vi) ensure that all of the agreed milestones are met where Intuity is dependent on THE CUSTOMER for the performance of the project plan.
(vii) also provide INTUITY with all the information reasonably requested by INTUITY for INTUITY to remotely access THE CUSTOMER’s computer systems
(viii) Accept and hold INTUITY harmless in respect the possible occurrence of the disruption of services at THE CUSTOMER’S facility or on THE CUSTOMER’S computer systems or reasonable loss or damage to THE CUSTOMER’S software or hardware arising in the course of the provision of Services by INTUITY pursuant to a Services Contract and/or the delivery of Equipment pursuant to a Sales Contract.
C. If INTUITY determines that the Services require INTUITY to remotely access THE CUSTOMER’s computer systems, THE CUSTOMER agrees that it shall also provide INTUITY with all the information and access rights and capabilities reasonably requested by INTUITY for INTUITY to remotely access computer systems of THE CUSTOMER.
D. THE CUSTOMER also acknowledges and agrees that the provision of the Services by INTUITY may in some circumstances result in the disruption of services at THE CUSTOMER’s facility or on THE CUSTOMER’s computer systems or loss or damage to software or hardware.
4. PRICING AND PAYMENT
A. Pricing.
(i) The price payable by THE CUSTOMER to INTUITY for Equipment provided pursuant to a Sales Contract shall be set forth in detail in the Sales Contract.
(ii) The fees/hourly rates payable by THE CUSTOMER to INTUITY for the provision of Services are set forth in detail in each Services Contract.
(iii) The fees/hourly rates payable by THE CUSTOMER to INTUITY for additional ‘out of scope’ Services to be provided under a Services Contract/ Change Order during the Term of a Services Contract shall be notified by INTUITY to THE CUSTOMER in a timely manner and INTUITY shall endeavour in good faith to provide such additional ‘out of scope’ Services at fee/hourly rates generally reflective of the fees/hourly rates specified for the Services outlined in the underlying Services Contract.
(iv) INTUITY reserves the right to
a. increase the charges for the Services on written notice to THE CUSTOMER in line with either:
i. the percentage increase in the Consumer Price Index in the preceding 12-month period with each increase to take effect on each consecutive 12 month anniversary of the commencement of a Services Contract and shall be based on the latest available figure for the percentage increase in the Consumer Price Index; or
ii. any price increase levied upon INTUITY by a third-party supplier.
b. increase the price of the Equipment, by giving notice to THE CUSTOMER at any time before delivery, to reflect any increase in the cost of the Equipment to INTUITY that is due to:
i. any factor beyond the control of the Supplier (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
ii. any request by THE CUSTOMER to change the delivery date(s), quantities or types of Equipment ordered, or the Equipment Specification;
iii. any delay caused by any instructions of THE CUSTOMER in respect of the Equipment or failure of THE CUSTOMER to give INTUITY adequate or accurate information or instructions in respect of the Equipment; or
iv. any price increase levied upon INTUITY by a third-party supplier
B. Payment.
i. INTUITY will invoice THE CUSTOMER on a monthly basis for the fees accrued /accruing in accordance with the Services Contract. Payment of fees charged for all Services shall be made by THE CUSTOMER via bank transfer to the account specified in, and in accordance with the terms of, the underlying invoice issued by INTUITY.
ii. Where INTUITY shall, in accordance with a Sales Contract, procure and supply Equipment to the CUSTOMER, payment must be made by THE CUSTOMER for such Equipment to INTUITY in advance of delivery and upon receipt of an invoice for such Equipment from INTUITY. Payment of all fees charged for all such agreed Equipment shall be made by THE CUSTOMER via bank transfer to the account specified in, and in accordance with the terms of, the underlying invoice issued by INTUITY.
C. Non Payment
(i) INTUITY will have no obligation to perform any Services for, or supply any Equipment to, THE CUSTOMER, whether included in a Sales Contract, a Services Contract or otherwise, unless all charges, fees, and taxes for Services and/or Equipment rendered under have been paid in full by THE CUSTOMER when due in accordance with the relevant underlying invoice and Sales/Services Contract.
(ii)In the event of non-payment of any sum due and owing under a Sales Contract or Services Contract, INTUITY shall have the right to suspend or immediately terminate the provision of all Services, including the provision and operation of administration passwords, without notice, and INTUITY may determine at its absolute discretion whether or not to reinstate any Services upon receipt of payment in full of all sums owed.
(iii) Any payment not received by INTUITY on or before thirty (30) days following the due date shall bear interest from the due date until such amount is paid to INTUITY in full at the rate of one percent (1%) of the unpaid amount per month.
D. Set Off / Deduction
All amounts shall be payable by THE CUSTOMER to INTUITY without right of setoff, deduction, or demand. All amounts payable by THE CUSTOMER are exclusive of amounts in respect of value added tax chargeable for the time being (VAT).
E. Tax Gross Up
Where any taxable supply for VAT purposes is made under a Sales/ Services Contract by INTUITY to THE CUSTOMER, THE CUSTOMER shall, on receipt of a valid VAT invoice from INTUITY, pay to INTUITY such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
5. TERM AND TERMINATION
A. Term
This term of each Services Contract (the “Term”) shall commence on the earlier of (i) the date of execution of the Services Contract by THE CUSTOMER and INTUITY; or (ii) the first date upon which INTUITY shall commence the supply of Services pursuant to a Services Contract or shall deliver Equipment pursuant to a Sales Contract; or (iii) the first date upon which INTUITY shall confirm acceptance or otherwise act in reliance on a Sales Contract or a Services Contract following receipt of an order or other such communication from THE CUSTOMER (the “Effective Date”) and shall continue until its expiry and automatic termination either:
(i) on the final date of the Initial Term if the Services Contract is expressly not extended by delivery of written notice of termination in accordance with these Terms and Conditions;
(ii) at the end of the extended period of a Services Contract if such Services Contract is extended in accordance with these Terms and Conditions; or
(iii) if a Services Contract is otherwise terminated in accordance with these Terms and Conditions.
On expiry of the Initial Term, unless either party shall expressly notify the other party of its intention to terminate the underlying Services Contract on or before the 12 month anniversary of the Effective Date (the “Initial Term”), the Services Contract shall automatically and immediately renew by additional consecutive periods of 12 months commencing on the first day after expiry of the Initial Term and shall continue until either party shall terminate the Services Contract in accordance with these Terms and Conditions.
B. Termination by Notice
Either party may terminate a Sales/ Services Contract at any time by providing at least two (2) months (“Notice Period”) prior written notice to the other party.
THE CUSTOMER acknowledges and agrees that THE CUSTOMER is responsible to pay:
(i) monthly Fees for Services during the Notice Period, regardless if THE CUSTOMER requests not to receive such Services during the Notice Period, at the same monthly amount as the average of the three (3) month period immediately preceding the notice of termination; and
(ii) If THE CUSTOMER shall terminate the Services Contract at any time during the Initial Term or at any time during the extended period of a Services Contract (as extended pursuant to Clause 5(a) above), the Customer shall be required to pay all remaining unaccrued or undischarged costs and fees under the applicable Services Contract for the entirety of the remaining period of the Initial Term or extended period in full without deduction or set off, irrespective of the date upon which the Services Contract may be terminated during the Initial Term or extended term.
C. Termination by INTUITY
INTUITY may immediately terminate a Sales/ Services Contract upon written notice to THE CUSTOMER if THE CUSTOMER:
(i) fails to make any payment to INTUITY when due under the terms of the Sales Contract or Services Contract and such failure continues for a period of five (5) Business Days following written notice of such failure by INTUITY to THE CUSTOMER; or
(ii) breaches any other provision of the Sales Contract or Services Contract including these standard Terms and Conditions.
D. Duties on Termination
Immediately upon the expiration or termination of a Sales/ Services Contract, each party shall:
(i) return to the other any and all equipment provided by the other party;
(ii) undertake and complete all necessary tasks and actions to enable the CUSTOMER to transition effectively and promptly to an alternate supplier of in accordance with the Intutiy Offboarding Process Document; and
(iii) discontinue the use of and permanently delete from the party’s computer systems any and all of the other party’s software and other computer programs installed or provided by the other party.
E. Consequences of Termination
(i) THE CUSTOMER acknowledges and agrees that it shall be responsible for payment of any and all costs that may be reasonably incurred in respect of data transfer/offboarding in excess of reasonable fair use levels as determined and applied by INTUITY.
(ii) THE CUSTOMER agrees and acknowledges that INUTITY allocates its employees and consultants weeks or months in advance and would suffer a loss should all or any part of the Services be postponed or cancelled at short notice. As such, THE CUSTOMER agrees that it shall pay to INTUITY (as genuinely pre-estimated liquidated damages) an amount to reflect the losses which INTUITY will incur if such cancellation or rescheduling is requested within a set number of days of the Effective Date (the “Cancellation Fee”).
(iii) A notice of intent to cancel or a notice to postpone the provision of Services or Equipment will only be accepted in written format up to 14 days prior to any agreed commencement date. If cancellation or postponement is 14 days or closer to the agreed commencement date a fee of 50% will be imposed and an invoice will be issued. If cancellation or postponement is within 24 hours of the agreed commencement date a fee of 100% will be imposed and an invoice will be issued.
(iv) Charging of the Cancellation Fee is at INTUITY’S discretion. INTUITY will use reasonable commercial efforts to re-deploy consultants and employees to other projects to mitigate its losses resulting from cancellation or rescheduling. If INTUITY is able to successfully redeploy consultants, then it can reduce the Cancellation Fee payable by THE CUSTOMER accordingly.
(v) If THE CUSTOMER re-books/ re-orders the Services for another date, the Fees for the Services as re-booked will be payable in addition to any Cancellation Fee. If a test is postponed three times or more, charges of up to 50% will be incurred upon each postponement starting on the third postponement.
6. OWNERSHIP
All materials, including all copyrights, trademarks, logos and other identifying marks (collectively “Materials”) of each party are and shall remain the exclusive property of that party, and except as otherwise specifically set forth in these Terms and Conditions, no license to use such Materials is granted pursuant to these Terms and Conditions.
All Materials are proprietary and may not be reproduced, duplicated or disseminated for any purpose. All non-third- party software installed or provided by one of the parties for the other party’s use is proprietary software and the exclusive property of installing party.
7. HIRING OF INTUITY’S EMPLOYEES
In the absence of INTUITY’s prior written consent, and for a period of twelve (12) months following the expiration or termination of the relevant Contract, for any reason whatsoever, THE CUSTOMER agrees not to hire or otherwise engage, directly or indirectly, any person who, at any time during the twelve (12) months immediately preceding such hiring or engagement, was an employee of INTUITY who was employed to perform (in whole or in part the Services or other services similar to the Services for THE CUSTOMER.
INTUITY and THE CUSTOMER agree that the quantum of damages arising from a breach of this clause by a CUSTOMER would be difficult to ascertain. Therefore, in the event of any breach of this clause by THE CUSTOMER, THE CUSTOMER agrees to pay INTUITY, as liquidated damages and not as a penalty, a sum equal to twenty-four (24) months’ total remuneration paid by INTUITY for each former employee of INTUITY hired or otherwise engaged by THE CUSTOMER in breach of this Clause, at the rate of remuneration paid by INTUITY for the last full month of such employee’s employment with INTUITY.
In addition, INTUITY shall be entitled to temporary and permanent injunctive relief or similar Court orders in order to prevent or restrain any such violation of this Clause by THE CUSTOMER or its partners, agents, representatives, servants, employers, employees and any and all persons directly or indirectly acting for or with THE CUSTOMER.
These remedies shall be in addition to, and not in limitation of, any other rights or remedies afforded to INTUITY under these Terms and Conditions or available to INTUITY at law or in equity.
8. FORCE MAJEURE
Except for payment obligations, the parties shall not be responsible for failure to render any obligation due to causes beyond its reasonable control, including, but not limited to, work stoppages, fires, civil disobedience, riots, rebellions, floods, war, acts of terrorism, delays in transportation, accident, failure of THE CUSTOMER to provide a suitable operating environment for INTUITY, hardware malfunctions caused by defects in software or otherwise, failure of THE CUSTOMER to allow INTUITY access to its computer system, acts of God and other similar occurrences. The obligations and rights of the parties shall be extended on a day-to-day basis for the duration of excusable delay.
9. REPRESENTATIONS AND WARRANTIES
Each party represents and warrants to the other party that:
A. it has the full right, power and authority to enter into and to perform the Sales/ Services Contract;
B. the execution, delivery and performance of the Sales/ Services Contract has been duly authorized by all necessary corporate action;
C. the Sales/ Services Contract constitutes a valid and binding obligation of such party, enforceable against it in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and other laws affecting the rights of creditors generally; and
D. the execution, delivery and performance of the Sales/ Services Contract does not or will not violate or cause a breach or default under:
(i) the governing corporate or company documents of such party;
(ii) any agreement, lease, mortgage, license or other contract to which such party is a party; or
(iii) any law, rule, regulation, order, decree or consent action by which such party is bound or to which it is subject.
10. DISCLAIMER OF WARRANTIES
INTUITY does not warrant:
A. the uninterrupted or error-free operation or provision of the Services,
B. that the Services will be free from interruption,
C. the Services will be secure from unauthorized access,
D. that the Services will detect every security or other vulnerability of the customer’s computer systems, or
E. that results generated by the Services will be error-free, accurate or complete.
All information, materials and services are provided to THE CUSTOMER on an “as is” basis. Except as specifically set forth in the Sales / Services Contract, INTUITY hereby disclaims all representations and warranties, express or implied, including, but not limited to, warranties of merchantability, fitness for a particular purpose and noninfringement.
The Services may become unavailable due to any number of factors, including, without limitation, scheduled or unscheduled maintenance, technical failure of the software, telecommunications infrastructure, or the unavailability or interruption of access to the Internet. The disclaimers set forth in this Section shall apply regardless of whether:
A. INTUITY determines that THE CUSTOMER’S computer systems are deemed “secure”,
B. THE CUSTOMER performs such modifications to its computer systems as INTUITY reasonably suggests in order for THE CUSTOMER’S computer systems to be deemed “secure”, or
C. otherwise.
Certain Equipment provided by INTUITY to THE CUSTOMER pursuant to a Sales Contract and/or certain Services provided by INTUITY to THE CUSTOMER pursuant to a Services Contract may involve the sale and/or provision of third party products and services that may be subject to such third party manufacturer/provider standard terms, conditions, representations and warranties. In such circumstances THE CUSTOMER hereby confirms and acknowledges that they agree to accept and be legally bound by such standard terms, conditions, representations and warranties, which shall be deemed to be in addition to and not in replacement or amendment of INTUITY’S terms and conditions pursuant to each Sales/Services Contract. INTUITY shall be under no obligation to inform THE CUSTOMER of the details of all third party manufacturer/provider standard terms, conditions, representations and warranties or to update THE CUSTOMER in respect of any amendments or other changes to such third party manufacturer/provider standard terms, conditions, representations and warranties.
11. LIMITATION OF LIABILITY
INTUITY will not be liable to THE CUSTOMER or any third party for any of the following arising out of the Equipment and/or the Services: any special, indirect, incidental, punitive or consequential damages, whether based upon breach of warranty, breach of contract, negligence, strict tort or any other legal theory, and whether or not INTUITY is advised of the possibility of such damages, including, but not limited to, damages for any loss of profits, loss of data, equipment downtime, or loss of goodwill.
THE CUSTOMER acknowledges and agrees that INTUITY’S aggregate liability to THE CUSTOMER for any damages, losses, fees, charges, expenses and/or liabilities arising out of the Sales / Services Contract and/or the Services shall not exceed the gross fees paid by THE CUSTOMER pursuant to the Sales / Services Contract for the six (6) month period immediately prior to the first occurrence of the applicable damages, losses, fees, charges, expenses and/or liabilities.
THE CUSTOMER acknowledges that the limitations on liability contained in these standard Terms and Conditions were specifically bargained for and are acceptable to THE CUSTOMER. THE CUSTOMER’S willingness to agree to the limitations of liability set forth in these standard Terms and Conditions was material to INTUITY’s decision to enter into the Sales / Services Contract. The limitations on liability set forth in the Sales / Services Contract shall be enforceable to the maximum extent permitted by applicable law.
12. GENERAL TERMS
A. The Sales / Services Contract, incorporating these standard Terms and Conditions as may be amended from time to time (including by way of Change Order), is the entire agreement between INTUITY and THE CUSTOMER and supersedes any prior understandings or written or oral agreements between INTUITY and THE CUSTOMER with respect to the subject matter of the a Sales/ Services Contract.
B. A Sales Contract/ Services Contract may only be amended or changed pursuant to a written document duly executed or otherwise accepted by both INTUITY and THE CUSTOMER (including by way of Change Order), save and except that these standard Terms and Conditions shall be updated on a regular basis by INTUTIY at its discretion with a copy of the up to date Terms and Conditions applicable to the Sales Contract / Services Contract being made available at all times at https://www.intuity.ie/website-terms-and-conditions/ . By entering into the Sales / Services Contract THE CUSTOMER acknowledges that INTUITY’s standard Terms and Conditions applicable to the Sales / Services Contract shall be subject to amendment on a regular basis by INTUITY at its discretion and THE CUSTOMER accepts and agrees to be bound by such standard Terms and Conditions as they may be amended.
C. No waiver of a breach of any provision of these Terms and Conditions by any party shall be construed as a waiver of a subsequent breach of the same or any other provision of these Terms and Conditions.
D. THE CUSTOMER’S obligation to pay for any Services or other services received by INTUITY and each of the provisions of Section 3, 5 through 7, and 10 through 16 shall survive the expiration or earlier termination of these Terms and Conditions.
E. The invalidity of any provision of the Sales / Services Contract (including any Change Order)or these standard Terms and Conditions (as may be amended) shall not affect the enforceability of the remaining provisions the Sales / Services Contract or these standard Terms and Conditions (as may be amended). All exhibits and schedules to the Sales / Services Contract or these standard Terms and Conditions (as may be amended) are true, correct and hereby incorporated into by reference and made a part of the Sales / Services Contract.
F. The Sales / Services Contract shall be binding upon, inure to the benefit of, and be enforceable by INTUITY and THE CUSTOMER and their successors and permitted assigns, and no other person or entity shall have or acquire any right by virtue of the Sales / Services Contract unless otherwise specifically agreed to in writing by INTUITY and THE CUSTOMER.
G. The Sales / Services Contract and the rights and obligations of the Parties are not assignable without the prior written consent of the other Party. Any attempt by one of the Parties to assign the Sales / Services Contract or any right, duty, or obligation which arises under the Sales / Services Contract without such consent, will be void.
H. The Sales / Services Contract shall not be construed to give any person other than INTUITY and THE CUSTOMER any legal or equitable right, remedy or claim under or with respect to the Sales / Services Contract.
I. The Sales / Services Contract will not create a joint venture, partnership or other formal business relationship or entity of any kind, or an obligation to form any such relationship or entity. Each party will act as an independent entity and not as an agent of the other party for any purpose, and neither will have the authority to bind the other.
J. This Contract may be executed in multiple counterparts, each of which shall be deemed to be an original and of equal force and effect, and all of which taken together shall constitute one and the same instrument.
K. The parties reserve the right to maintain an executed copy of the Sales / Services Contract in electronic form only and agree that a print-out of such electronic form of the Sales / Services Contract (including the up to date Terms and Conditions at the given time) will be deemed an original for all purposes relating to the enforceability of the terms and conditions of the Sales / Services Contract.
13. NOTICES
A. All notices required pursuant to these Terms and Conditions shall be written and shall be delivered by
(i) hand-delivery;
(ii) nationally recognized overnight delivery service (such as FedEx, UPS, DHL, or USPS express mail); or
(iii) electronic mail with verification of receipt. All such notices and other communications shall be addressed to the other party at the address set forth in the Sales / Services Contract or to such other address as a party may designate by notice complying with the terms of this Section.
B. Each such notice shall be deemed delivered:
(i) on the date delivered if by hand-delivery;
(ii) on the date delivered or the date delivery is refused by the recipient, if by nationally recognized overnight delivery service; or
(iii) upon verification of receipt if by electronic mail.
C. INTUITY uses electronic communications as defined in the Electronic Commerce Act, 2000. Each party will be responsible with regards to the security and privacy of the electronic communications used. If THE CUSTOMER chooses to communicate with INTUITY via electronic communications or request that INTUITY communicates with such CUSTOMER via electronic communications, INTUITY will assume that THE CUSTOMER wishes communications between INTUITY and THE CUSTOMER to be conducted via electronic communication. Upon request by THE CUSTOMER. INTUITY will be happy to consider implementing an electronic communication security system which THE CUSTOMER operates or such other system as may be agreed.
14. INTELLECTUAL PROPERTY RIGHTS
INTUITY alone (and its sub-contractors and licensors, where applicable) shall own all right, title and interest, including all relating Intellectual Property Rights, in and to the Deliverables. For the avoidance of doubt, the Sales/ Services Contract do not transfer to THE CUSTOMER any Intellectual Property Rights in the Deliverables or any other Intellectual Property Rights owned or licensed by INTUITY and/or any of its sub-contractors or licensors.
15. CONFIDENTIALITY
A. Each party undertakes that it shall not at any time during a Sales/ Services Contract, and for a period of five years after termination of this a Sales/ Services Contract, disclose to any person any confidential information concerning the business, affairs, INTUTIY, THE CUSTOMER or any supplier of the other party or any member of the group of companies to which the other party belongs, except as permitted by Clause 15 (B) below.
B. Each party may disclose the other party’s confidential information:
a. to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with a Sales/ Services Contract. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this Clause 15; and
b. as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
c. No party shall use any other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with a Sales/ Services Contract.
16. DATA PROTECTION
A. The following definitions shall have the following meanings for the purpose of this Clause 16
a. “Data Protection Legislation” means applicable data protection law including the Data Protection Acts 1988 to 2018, the General Data Protection Regulation ((EU) 2016/679) (‘GDPR’) and any secondary legislation which relates to personal data and any codes of conduct or guidance issued by the Data Protection Commission from time to time;
b. “Relevant Data” means any personal data processed on behalf of THE CUSTOMER in connection with the performance by INTUITY of its obligations under a Sales/ Services Contract;
c. the terms “controller”; “data subject”; “personal data”; “personal data breach”; “processor“; “processing” (and any derivatives of this term) and “supervisory authority” each have the meaning given under Data Protection Legislation.
B. THE CUSTOMER hereby authorises INTUITY to process the Relevant Data for the purposes of providing the Services. The Parties agree to comply with all applicable requirements of Data Protection Legislation. This Clause 16 is in addition to, and does not relieve, remove or replace, a Party’s obligations under Data Protection Legislation.
C. The Parties acknowledge and agree that:
(i) for the purposes of Data Protection Legislation, THE CUSTOMER is the controller INTUITY is processor of Relevant Data; and
(ii) Without limiting or affecting any other provision of a Sales/ Services Contract, INTUITY shall, in relation to the Relevant Data:
a. only process the Relevant Data as necessary to perform the Services and only in accordance with THE CUSTOMER documented written instructions regarding the processing of Relevant Data pursuant to the Sales/ Services Contract, unless otherwise prevented by applicable law. If INTUITY is required by applicable law to process Relevant Data for purposes other than those agreed under the Sales/ Services Contract, it shall inform THE CUSTOMER of that legal requirement before processing such Relevant Data, unless that applicable law prohibits such information being given on important public interest grounds;
b. without limiting or affecting INTUITY’s obligation under Clause 16(C)(ii)(a), inform THE CUSTOMER in writing if in its opinion an instruction issued by THE CUSTOMER infringes Data Protection Legislation;
c. at all times for the duration of its processing of Relevant Data implement and maintain appropriate technical and organisational measures required under Article 32 of the GDPR and shall document those measures in writing and periodically review them to ensure they remain current. INTUITY shall make its security practices and policies for the protection of the Relevant Data available to THE CUSTOMER for inspection on reasonable written notice;
d. ensure that persons employed by it and other persons who may process the Relevant Data are aware of and comply with this Clause 16 and the Data Protection Legislation, and are suitably trained in the processing of personal data and in the technical and organisational measures described in this Clause 16 as applicable to the Relevant Data;
e. promptly inform THE CUSTOMER in the event of receiving a request from a data subject to exercise their rights under Data Protection Legislation and provide such cooperation and assistance as may be reasonably required by THE CUSTOMER, at THE CUSTOMER sole cost and expense, to enable THE CUSTOMER to deal with such request in accordance with the provisions of Data Protection Legislation. This will include assisting THE CUSTOMER, where deemed necessary, by implementing appropriate measures to aid THE CUSTOMER to meet requests under Data Protection Legislation. INTUITY shall not respond to any such request from a data subject or to any communication from a supervisory authority concerning Relevant Data without THE CUSTOMER prior written instruction.
f. Considering the nature of processing of Relevant Data and the information available to INTUITY, provide assistance to THE CUSTOMER and its representatives in ensuring compliance with obligations pursuant to Articles 32 to 36 of the GDPR;
g. promptly and without undue delay, and in any event no later than 24 hours upon becoming aware, notify THE CUSTOMER of any actual or suspected occurrence of a personal data breach in respect of the Relevant Data in such form and detail as complies with a notification under Article 33(3) of the GDPR. INTUITY shall reasonably cooperate with THE CUSTOMER in fulfilling THE CUSTOMER obligations under Articles 33 and 34 of the GDPR including by assisting with any investigation and making available all relevant information required for THE CUSTOMER to comply with Data Protection Legislation or as reasonably required by THE CUSTOMER
h. maintain complete and accurate records and information to demonstrate its compliance with this Clause 16 and make available to THE CUSTOMER all information reasonably necessary to demonstrate compliance by INTUITY in respect of Relevant Data with the obligations laid down in this Clause 16 and allow for and contribute to audits, including inspections, conducted by THE CUSTOMER or another auditor mandated by THE CUSTOMER
i. when INTUITY ceases to provide the Services or services relating to the processing of Relevant Data INTUITY shall: (i) at the choice of THE CUSTOMER, delete or return all such Relevant Data to THE CUSTOMER; and (ii) delete all existing copies of such Relevant Data unless EU law or the laws of an EU Member State require storage of the Relevant Data;
j. not authorise a sub-processor to process Relevant Data without THE CUSTOMER prior written consent. INTUITY shall, where it engages a sub-processor in accordance with this Clause 16(C)(ii)(j), comply in full with Article 28(4) of the GDPR;
k. ensure that persons authorised to process the Relevant Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality; and
l. not transfer or otherwise process Relevant Data outside of the European Economic Area unless the prior written consent of THE CUSTOMER has been obtained.
D. THE CUSTOMER acknowledges that with respect to the Relevant Data its statutory duties may include the following:
(i) complying with Data Protection Legislation and ensuring that any instructions that it issues to INTUITY complies with Data Protection Legislation;
(ii) establishing a procedure for the exercise of the rights of data subjects whose personal data is processed;
(iii) only process Relevant Data that have been lawfully and validly collected and ensuring that such Relevant Data is relevant and proportionate to the respective uses; and
(iv) establishing the legal basis for processing Relevant Data under Data Protection Legislation.
E. Schedule 1 sets out the scope, nature and purpose of the processing by INTUITY, the duration of the processing and the types of Relevant Data and categories of data subject.
17. GOVERNING LAW AND JURISDICTION
Each Services Contract, Sales Contract and these Terms and Conditions and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of Ireland and the courts of Ireland shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Services Contract, Sales Contract, these Terms and Conditions or its subject matter or formation.
Schedule 1 Processing, Personal data and Data subjects
| PART 1 | |
| Scope of the Processing | The provision of Services to the CUSTOMER |
| Nature and Purpose of the Processing | To allow INTUITY to engage with the business of the CUSTOMER for the purposes of providing the Services |
| Duration of the Processing | The term of the Sales/ Services Contract |
| PART 2 | |
| Types of Personal Data | Names, addresses, email addresses, age, date of birth, financial information |
| PART 3 | |
| Categories of Data Subject | CUSTOMERS; Employees, customers, subscribers |
Version published on Jan 24th 2024