Terms and Conditions

Agreement

THIS LICENCE AGREEMENT is made and effective as of the Commencement Date listed in the Order Form by and between COOL PLANET LIMITED a limited company organized and existing in Ireland with a registered address at Powerscourt House, Powerscourt Estate, Enniskerry, Co Wicklow, Ireland and company number 477334 (“Licensor“) and the Party listed as the Licensee on the Order Form (“Licensee“) (each a “Party” and together the “Parties“).

Definitions

  1. “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with either of the Parties. For the purpose of this definition, “control” means direct or indirect ownership or control of more than 50% of the voting interests of the relevant Party.
  2. “Agreement” means this License Agreement including the Order Form and these Terms and Conditions.
  3. “Authorised Users” means those employees, agents and independent contractors of Licensee who are authorised by Licensee to use the Services in accordance with clause 7.
  4. “Business Day” means a day other than a Saturday, Sunday or public holiday in Ireland when banks in Dublin are open for business.
  5. “Business Hours” means the hours between 9am and 5pm on a Business Day.
  6. “Commencement Date” means the date listed as such in the Order Form.
  7. “Confidential Information” means information provided or made available by one Party to the other Party in relation to this Agreement, including the existence and contents of Agreement; information relating to the Services, correspondence, intellectual property including trade secrets, either Party’s current and future products and customers, technical knowledge, know-how, formulae, processes, techniques, data and data systems, current and future suppliers, markets, sales, prices, accounts, finances, forecasts, projections, prospects, organisation, business, policies, practices, transactions, the marketing or promotion of any product.
  8. “Customer” has the same meaning as “Licensee” in the Agreement.
  9. “Customer Cause” means any of the following causes of an Error, except, in each case, any such causes resulting from any action or inaction that is authorized by this Exhibit or the Agreement, specified in the then-current Documentation, or otherwise authorized in writing by Provider: (a) any grossly negligent or improper use, misapplication, misuse or abuse of, or damage to, the Software by Customer; (b) any maintenance, update, improvement or other modification to or alteration of the Software by Customer; (c) any use of the Software by Customer in a manner inconsistent with the then-current Documentation; or (d) any use by Customer of any Third-party Products that Provider has not approved or provided or caused to be provided to Customer.
  10. “Customer Site” has the same meaning as “Designated Site” in the Agreement.
  11. “Customer Systems” means Customer’s information technology infrastructure, including Customer’s computers, software, databases, electronic systems (including database management systems) and networks.
  12. “Dashboard” means the part of CLARITY which will be made accessible to the Authorised Users.
  13. “Error” means any reproducible failure of the Software to operate in all material respects in accordance with the Agreement, including any problem, failure or error referred to.
  14. “Data Protection Legislation” means any applicable laws concerning the protection of personal data or privacy to which the applicable Party is subject, including: (i) the General Data Protection Regulation (EU) 2016/679 (the “GDPR“); (ii) the Data Protection Acts 1988 to 2018, and any other legislation which implements the GDPR; (iii) the European Communities (Electronic Communications Networks and Services) (Privacy and Electronic Communications) Regulations 2011; (iv) any other legislation which implements the European Community’s Directive 2002/58/EC; and (v) any guidance and / or codes of practice issued by the Irish Data Protection Commission or the European Data Protection Board.
  15. “Disclosing Party” means the Party that discloses Confidential Information under (or in anticipation of entering into) this Agreement.
  16. “Intellectual Property Rights” means any and all trade marks, service marks, rights in get up, trade names, business names and domain names, rights in goodwill (including rights to sue for past, present and future infringements), rights in designs (whether registered or unregistered), copyright and related rights (including rights in computer programs), database rights, semi-conductor topography rights, patents, utility models, trade secrets, know-how, rights in inventions, discoveries and improvements, Confidential Information and all applications to register and rights to apply for registration of any of the foregoing rights, the right to sue for passing off or unfair competition, rights to preserve the confidentiality of information, together with all other rights of a similar or corresponding character which now, or in the future, may subsist in any part of the world.
  17. “IPR Claim” means any claim that:
  18. (a) the provision by the Licensor, or access or use by the Licensee and / or Authorised Users, of the Services; and/o
  19. (b) the grant by the Licensor, or the exercise by the Licensee or Authorised Users, of any licence of, or other rights in relation to, any Intellectual Property Rights under this Agreement,
  20. infringes the Intellectual Property Rights of any third party.
  21. “Licence Fee” means fees payable by Licensee to Licensor for the Services, as set out in the Order Form.
  22. “Licensee Data” means the data inputted by Licensee, Authorised Users, or Licensor on Licensee’s behalf for the purpose of using the Services or facilitating Licensee’s use of the Services.
  23. “Licensee Intellectual Property” means any Intellectual Property Rights owned by the Licensee or licensed to the Licensee by any third party.
  24. “Order Form” means the order form entered into by the Parties which will be issued by the Licensor with a quote or, in the event that the Customer purchases the Services by means of the CLARITY website, will be available online.
  25. “Personal Data” has the meaning given to that term by Regulation (EU) 2016/679.
  26. “Provider” has the same meaning as “Licensor” in the Agreement.
  27. “Receiving Party” means the Party that receives Confidential Information under (or in anticipation of entering into) this Agreement.
  28. “Renewal Period” has the meaning given to that term in clause 15.1.
  29. “Resolve” and the correlative terms, “Resolved”, “Resolving” and “Resolution” each have the meaning set forth in Schedule 1, Section 2.2.
  30. “Services” means any products and subscription services, provided by Licensor to Licensee under this Agreement, including CLARITY or any other website or application notified to Licensee by Licensor from time to time, as more particularly described in the Order Form.
  31. “Service Credits” means the service credits specified in Schedule 1, Section 4.
  32. “Service Levels” means the defined Error severity levels and corresponding required service level responses, response times, Resolutions and Resolution times referred to in the Service Level Table in Schedule 1, Section 1.
  33. “Support” means the identification, diagnosis and correction of Errors by the provision of the following Support Services by help desk technicians sufficiently qualified and experienced to identify and Resolve Customer’s Support Requests reporting these Errors: (a) telephone/e-mail/chat assistance; (b) Remote Services; and (c) access to technical information on the Provider’s website for proper use of the Software/Service.
  34. “Support Hours” means the hours between 9.00 am to 5.00 pm prevailing Irish time on days from Monday to Friday, excluding bank holidays within the meaning of the legal regulations having force and effect in Ireland.
  35. “Support Period” means the Term and, if requested by Customer, any period during which Customer transfers the Support Services to an alternate service provider.
  36. “Support Request” has the meaning set forth in Schedule 1, Section 3.1
  37. “Support Services” means Provider’s support of the then-current version and release of the Software, including First Line Support and Second Line Support
  38. “Technical Contact” has the meaning set forth in Schedule 1, Section 3.2.
  39. “Term” means the term of this Agreement as set out in the Order Form beginning on the date this Agreement is accepted which, for the avoidance of doubt, will be the Commencement Date unless otherwise specified in the Order Form.
  40. “Terms and Conditions” means these clauses 1 to 21.
  41. “Third-party Products” means all third-party software, computer hardware, network hardware, electrical, telephone, wiring and all related accessories, components, parts and devices.
  42. “Third Party Software” means any software which is used by the Licensor to deliver the Services and which requires the Licensee to enter into a licence agreement with a third party].
  43. “Virus” means anything 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.