Terms & Conditions of Supply
Kontex Security agrees to provide the Services and Deliverables specified in our Quotes, Statement of Works, Proposals or other sales engagement and project delivery documentation, the “Sales Documentation” subject to the foregoing terms and conditions. For the purposes of these terms and conditions, the term “Agreement” shall mean collectively these terms and conditions and the Sales Documentation. In the event of any conflict, inconsistency or ambiguity between these terms and conditions and the Sales Documentation, these terms and conditions shall prevail. Terms not otherwise defined in these terms and conditions shall have the meanings set forth in the Sales Documentation.
Subject to any termination provisions in the Sales Documentation, this Agreement may be terminated at any time by either party: (i) upon written notice if the other party breaches any material term of this Agreement and such breach remains uncorrected for thirty (30) days following written notice; or (ii) immediately, if the other party becomes the subject of a voluntary or involuntary petition in bankruptcy or any involuntary proceeding relating to insolvency, receivership, liquidation, or similar action for the benefit of creditors as a consequence of debt, or if the other party otherwise ceases or threatens to cease business. Subject to any termination payments specified in the Sales Documentation, upon termination of this Agreement, Kontex Security shall be entitled to be paid for all work performed, including fees and expenses, up to the effective date of termination.
In consideration of the fees stated in the Sales Documentation, Kontex Security will provide the Services and Deliverables described in the Sales Documentation in a good and workmanlike manner and in accordance with generally accepted industry standards. CUSTOMER AGREES THAT THE REMEDIES, EXPRESS OBLIGATIONS AND WARRANTIES HEREIN ARE EXCLUSIVE AND IN LIEU OF AND TO THE EXCLUSION (TO THE FULLEST EXTENT PERMITTED BY LAW) OF ANY OTHER REMEDY, WARRANTY, CONDITION, TERM, UNDERTAKING OR REPRESENTATION, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, RELATING TO ANYTHING SUPPLIED OR SERVICES PROVIDED UNDER OR IN CONNECTION WITH THIS AGREEMENT INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY, CONDITION, TERM, UNDERTAKING OR REPRESENTATION AS TO THE CONDITION, QUALITY OR FITNESS FOR A PARTICULAR PURPOSE OF DELIVERABLES AND/OR THE SERVICES OR ANY PART OF THEM.
Customer is responsible for all taxes, customs duties, import fees or other similar charges, and all other mandatory payments imposed by government entities with respect to the Services and Deliverables, excluding tax imposed on Kontex Security’s net income and withholding taxes (subject to the condition of providing withholding tax payment receipts, as set forth below). Kontex Security will bill applicable taxes as a separate item on Customer’s invoice. If a transaction is exempt from tax, Customer will provide Kontex Security with a valid exemption certificate or other evidence of such exemption in a form acceptable to Kontex Security. If Customer is required by law to withhold any tax from the payment, Customer will provide to Kontex Security original or certified copies of all tax payment receipts or other evidence of payment of taxes by Customer with respect to transactions under this Agreement. If Customer fails to provide Kontex Security with such tax payment receipts, if applicable, then Customer will reimburse Kontex Security for any fines, penalties, taxes and other governmental agency charges resulting from such failure.
To the extent that confidential and proprietary information of each party (“Confidential Information”) is exchanged and received in connection with the Services, each party agrees not to use the other party’s Confidential Information except in the performance of, or as authorized by, this Agreement, and not to disclose, sell, license, distribute or otherwise make available such information to third parties. Use by third party contractors is permitted so long as such contractor has a need to know and is required to maintain the confidentiality of such information as required by this Section 5. “Confidential Information” includes (but is not limited to) Kontex Security Information (as defined in Section 6(b) below), but does not include: (i) information that was publicly available at the time of disclosure or that subsequently becomes publicly available other than by a breach of this provision; (ii) information previously known by or developed by the receiving party independent of the Confidential Information; or (iii) information that the receiving party rightfully obtains without restrictions on use and disclosure.
6. Rights in Deliverables
(a) Ownership Rights. Subject to Kontex Security’s rights in Kontex Security Information, as described in Section 6(b) and Kontex Security Derivative Work as described below, all Deliverables created specifically for and provided to Customer by Kontex Security under this Agreement shall, upon final payment, become the property of Customer for Customer’s internal business purposes. Any inventions, designs, intellectual property or other derivative works of Kontex Security Information, shall vest in and be the exclusive property of Kontex Security (“Kontex Security Derivative Work”). Any inventions, designs, intellectual property or other derivative works of Customer Information (as defined below) shall vest in and be the exclusive property of Customer (“Customer Derivative Work”).
(b) Pre-Existing Work. Any pre-existing proprietary or Confidential Information of Kontex Security or it’s licensors used to perform the Services, or included in any Deliverable, including but not limited to software, appliances, methodologies, code, templates, tools, policies, records, working papers, know-how, data or other intellectual property, written or otherwise, including Kontex Security Derivative Works shall remain the exclusive property of Kontex Security and its licensors (collectively, “Kontex Security Information”). To the extent that Kontex Security incorporates any Kontex Security Information into the Deliverable(s), Kontex Security hereby grants to Customer a non-exclusive, non-transferable license to use such Kontex Security Information at no additional charge solely for Customer’s internal business purposes, in accordance with the limitations set forth in this Agreement. Any Customer pre-existing information, including but not limited to any Customer’s proprietary and Confidential Information provided to Kontex Security by Customer shall remain the exclusive property of Customer or its licensors (“Customer Information”).
(c) Retention. Customer acknowledges that Kontex Security provides similar services to other customers and that nothing in this Agreement shall be construed to prevent Kontex Security from carrying on such business. Customer acknowledges that Kontex Security may at its sole discretion develop, use, market, distribute and license software or documentation that is substantially similar to the Deliverables including without limitation software with similar structure, sequence and organisation as the Deliverables. Notwithstanding the preceding sentence, Kontex Security agrees that it will not market or distribute any Deliverables that include the confidential information of Customer.
(a) Kontex Security shall defend and indemnify and hold Customer harmless from any claim asserting that the Services or Deliverables infringe any intellectual property right of any third party, and will pay any and all damages awarded by a court and actually paid by Customer, or agreed to in settlement by Kontex Security and attributable to such claim. Kontex Security’s obligations under this Section 7 are subject to Customer doing the following: (i) providing Kontex Security all reasonable assistance and information to enable Kontex Security to perform its duties under this Section 7; (ii) allowing Kontex Security sole control of the defense and all related settlement negotiations; and (iii) not having compromised or settled such claim. Notwithstanding the foregoing, Customer may participate at Customer’s expense in the defense of any such claim with its own counsel, provided Kontex Security retains sole control of the suit. Customer has the right to approve any settlement that affirmatively places on Customer an obligation that has a material adverse effect on Customer other than the obligations to cease using the affected Deliverables or to pay sums indemnified hereunder. Such approval will not be unreasonably withheld. If the Services or Deliverables are found to infringe, or if Kontex Security determines in its sole opinion that either is likely to be found to infringe, then Kontex Security will either: (a) obtain for Customer the right to continue to use Deliverable; or (b) modify the Services or Deliverable so as to make it non-infringing, or replace it with a non-infringing equivalent substantially comparable in functionality, in which case Customer will stop using any infringing version of the Services or Deliverable; or if or if Kontex Security determines in its sole opinion that (a) and/or (b) are not commercially reasonable); (c) terminate Customer’s rights and Kontex Security’s obligations under this Agreement with respect to such Services or Deliverable, and refund to Customer the fees paid for the relevant Services or Deliverables. Notwithstanding the above, Kontex Security will have no liability for any infringement claim based on: (i) modification of the Services or Deliverable other than by Kontex Security; (ii) combination, use or operation of the Services or Deliverable with products not specifically authorized by Kontex Security to be combined with the Services or Deliverables; (iii) use of Services or Deliverables other than in accordance with this Agreement; (iv) Customer’s continued use of infringing Services or Deliverables after Kontex Security, for no additional charge, supplies or offers to supply modified or replacement non-infringing Services or Deliverables.
(b) SECTION 7 STATES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND KONTEX SECURITY’S SOLE AND EXCLUSIVE OBLIGATIONS AND LIABILITY, REGARDING ALLEGED OR ACTUAL INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY.
8. Limitation of Liability
(a) In no event shall KONTEX SECURITY OR ITS SUPPLIERS be liable, WHETHER IN CONTRACT, TORT OR OTHERWISE TO CUSTOMER OR ANY PERSON FOR: i) COSTS OF PROCUREMENT OF SUBSTITUTE OR REPLACEMENT GOODS OR SERVICES, lost business profits OR REVENUE or lost OR CORRUPTED data, LOSS OF PRODUCTION, LOSS OF CONTRACTS, LOSS OF GOODWILL OR ANTICIPATED SAVINGS OR WASTED MANAGEMENT AND STAFF TIME; OR ii) ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, LOSSES, EXPENSES OR COSTS OF ANY KIND; EVEN IF ADVISED OF THE POSSIBILITY AND WHETHER arising DIRECTLY OR INDIRECTLY out of this Agreement or use of the Services or Deliverables OR THE PERFORMANCE, DEFECTIVE PERFORMANCE, NON-PERFORMANCE OR DELAYED PERFORMANCE BY KONTEX SECURITY OF ANY OF ITS OBLIGATIONS UNDER OR IN CONNECTION WITH THIS AGREEMENT.
(b) Nothing in this Agreement shall exclude or limit Kontex Security’s liability for: (i) death or personal injury caused by its negligence; (ii) any fraudulent pre-contractual misrepresentations made by Kontex Security on which Customer can be shown to have relied; or (iii) any other liability which cannot be excluded by law.
(c) In all other cases not falling within Section 8(a) and 8(b) Kontex Security’s total liability (whether in contract, tort or otherwise) relating to anything supplied or services provided (including without limitation the Services) under or in connection with this Agreement shall not exceed in aggregate one hundred and twenty-five percent (125%) of the amount payable by Customer for the Service which is the subject of the claim.
9. Compliance with Law
This Agreement will be governed in accordance with the laws of Ireland and the parties agree to be subject to the jurisdiction of the Irish Courts. Customer acknowledges that the Services and Deliverables, including documentation and other technical data, are subject to export controls imposed by the U.S.A. and to export controls as may be imposed by the government or governmental agency within the territory where the Services and Deliverables are rendered. Customer agrees to comply with applicable laws including export and import and use restrictions, including the U.S. DOC, Export Administration Regulations (see http://www.bis.doc.gov/). Accordingly, Customer will not export or re-export (directly or indirectly) the Services and Deliverables or other technical data without complying with such export and import and use restrictions, including the U.S. DOC, Export Administration Regulations.
During the provision of Services under this Agreement and for one (1) year thereafter, neither party shall actively solicit for hire, nor knowingly allow its employees to solicit for hire, any employee of either party associated with the performance of Services under this Agreement without the prior written consent of the other party. This provision shall not restrict in any way the right of either party to solicit generally in the media for required personnel, and shall not restrict employees, contractors, or representatives of either party from pursuing on their own initiative employment opportunities from or with either party. The parties agree that violation of this provision will subject the violating party to liquidated damages consisting of an amount equal to (6) month’s salary for each employed, solicited, or retained person.
11. Data Privacy
With respect to any data, including but not limited to, personally identifiable information, third party data and associated metadata provided by Customer to Kontex Security (collectively the “Data”) Customer represents and warrants that all such Data has been collected by Customer in accordance with applicable laws and that Customer has obtained all necessary consent to transfer the Data to Kontex Security for the purpose of this Agreement. Kontex Security will process any personally identifiable information provided by the Customer to Kontex Security in accordance with the instructions of the Customer, provided that such instructions are compatible with the terms of the Sales Documentation. Where such processing takes place outside the Location or within systems controlled by Kontex Security, Kontex Security shall take appropriate technical and organisational measures against unauthorised or unlawful processing of that personally identifiable information and against accidental loss or destruction of, or damage to that personally identifiable information.
Please refer to our Privacy Notice
Unless we agree otherwise, we will invoice you on a monthly basis. If you are arranging for any other person to pay our fees and expenses on a matter you will remain liable for any amounts unpaid.
Time for payment: Unless otherwise agreed, our invoices are due on issuance. If you do not discharge our invoice in full within 30 days of the date of the invoice we may charge interest on the amount outstanding from the due date at 2 per cent per annum above the base lending rate of Allied Irish Banks p.l.c. If an invoice remains unpaid for 30 days from the date of the invoice (or such other period as may be agreed, whether shorter or longer) we shall be entitled to stop any work engagements for you and may engage a debt collection agency or pursue a legal action on the outstanding debt.
If you are not satisfied with an invoice which we issue to you, queries should be directed in writing in the first instance to the Director in charge of your matter within 14 days of the invoice being provided to you who will take appropriate and reasonable steps to resolve the matter. If you are still not satisfied, please contact our Managing Director. We will take all appropriate and reasonable steps to resolve the matter by informal means with you, which may include mediation. If you or the Firm are still not satisfied and have made all reasonable steps to resolve the dispute, the dissatisfied party shall inform the other party in writing of that opinion. Any dispute in respect of fees can then be referred to a debt collection agency or through legal action.
(a) While on Customer’s premises, Kontex Security will ensure that its personnel follow all reasonable instructions, as such are provided to Kontex Security prior to the performance of the Services.
(b) Kontex Security is an independent contractor and shall not be deemed an employee or agent of Customer.
(c) These terms and conditions, including the Sales Documentation, contain the complete and exclusive agreement between the parties relating to the Services and supersedes any previous or contemporaneous agreement, proposal, commitment, representation, or other communication, whether oral or written between the parties in relation to such subject matter. It is expressly agreed that any pre-printed terms appearing on the face or reverse side of any invoice, purchase order, acknowledgement or confirmation issued by Customer that are different from or in addition to the terms provided in this Agreement are not binding on the parties, even if signed and returned.
(d) Kontex Security has the right to subcontract to third parties the performance of the Services.
(e) All notices will be in writing and addressed to the receiving party’s current business contact, if known, with a cc: to the General Counsel/Legal Department of the receiving party and sent to the party’s address as listed in this Agreement, or as updated by either party in writing. Notices shall be effective upon receipt and shall be deemed received as follows: (i) if personally delivered by courier, when delivered, or (ii) if mailed by first class mail, or the local equivalent, on the fifth business day after posting with the proper address.
(f) This Agreement may not be assigned or otherwise transferred by Customer. A change of control shall constitute an assignment.
(g) No person other than a party to this Agreement shall be entitled to enforce any term of it except as expressly provided herein.
(h) Each party will be excused from performance, other than payment obligations, for any period during which, and to the extent that, it is prevented from performing any obligation or service, in whole or in part, due to unforeseen circumstances or to causes beyond such party’s reasonable control including but not limited to war, strike, riot, crime, acts of God, or shortages of resources.
(i) If any provision or part of this Agreement is found by a court of competent jurisdiction or other competent authority to be illegal or unenforceable, it will be enforced to the maximum extent permissible, and the remainder of this Agreement will remain in full force and effect to the fullest extent permitted by law and the parties hereto agree to replace the illegal or unenforceable provisions with valid provisions which are as close as possible to the illegal or unenforceable provisions in their respective meaning, purpose, and commercial effect.
(j) Any term of this Agreement, which by necessary implication is deemed to survive termination or expiration of this Agreement shall survive termination or expiration of this Agreement, including, without limitation, Sections 3 through to 12.