Terms & Conditions
In these Conditions, the following definitions apply:
Acceptable Use Policy means our acceptable use policy, that you shall be responsible for adhering too and ensuring that you shall not (nor any other party on your behalf or with your authorisation or otherwise), knowingly, deliberately, maliciously, willfully or negligently use or permit the use of any of our Services, systems or equipment:
- (i) for any improper, indecent, obscene, unlawful, harmful, unauthorised or fraudulent purpose or to cause any injury, nuisance, offence or annoyance to any person;
- (ii) so as to cause the operation or the quality to be jeopardised, impaired or interrupted or to interfere with the integrity or security of any telecommunications or IT network or system;
- (iii) for the communication, transmission, publication, distribution or dissemination of any material which is, may be or is intended to be a hoax or is of a defamatory, offensive, abusive, obscene, indecent or menacing in nature or in breach of any intellectual property right;
- (iv) to transmit unsolicited commercial communications or promotional material in breach of Applicable Law or otherwise;
- (v) for the processing of automated or manual “personal data” in contravention of Applicable Law; and/or
- (vi) otherwise in any manner which does not comply with the terms of any Applicable Law or any reasonable instructions given by us to you, from time to time.
[Acceptance: the written acceptance by the Supplier of either an Order or a Confirmation.]
Applicable Law(s) means all laws (including common law), statutes, statutory instruments, directives, regulations, rules, regulations, codes, orders, decrees, judgments, consent decrees, settlement agreements, or other pronouncements, in each case having force of law.
Applicable Rules: means the rules governing access to and usage of the Proprietary Software as specified on the Website (and as updated from time to time).
Additional Services: means any service requested or specified in an Order not comprising of Software Services.
Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in Dublin are open for business.
Charges: the charges or fees payable by the Customer for the supply of the Services in accordance with these Conditions.
Commencement Date: has the meaning set out in these Conditions;.
Conditions: these terms and conditions of the Contract between us and you.
Confirmation: a written confirmation issued by the Customer to the Supplier offering to continue the Contract following the expiry of the Trial.
Contract: the contract between the Supplier and the Customer for the supply of Services in accordance with these Conditions.
Customer: the club (“Club”), society (“Society”), firm or party representing a Club or Society who purchases or avails of Services from the Supplier.
Customer Systems: means all computer hardware, software and communications equipment necessary used or owned by the Customer from time to time.
Data Controller: has the meaning set out in the Data Protection Act 2018 (the “Data Protection Act”).
Data Processor: has the meaning set out in the Data Protection Act.
Data Subject: means an individual who is the subject of Personal Data.
Deliverables: the proprietary data of the Customer (and any other deliverables) to be uploaded by the Customer onto the Proprietary Software.
Effective Date: means the date and time when a Contract is formed.
End User: means any individual or entity that directly or indirectly through another user, (a) accesses or uses Your Content; or (b) otherwise accesses or uses the Services under your account
Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
Hosting System: means any data storage system selected by the Supplier for the delivery of the Services.
Order: any Customer’s order for certain of the Services as set out in any Order Form completed by the Customer.
Order Form: means any form produced by the Supplier for the ordering of certain of the Services and whether accessed through the Website or otherwise furnished to the Customer by the Supplier.
Personal Data: has the meaning set out in the Data Protection Act and relates only to personal data comprised within Deliverables or any part of such personal data comprised within the Deliverables, save as may otherwise be provided under these Conditions or a Contract.
Privacy Statement: means the privacy statement maintained on the Website as updated and amended from time to time.
Processing: has the meaning set out in the Data Protection Act.
Proprietary Software: the proprietary or licensed software of the Supplier known as Subsapp together with updates, modifications and enhancements developed by the Supplier from time to time.
Registered User: any representative of the Customer who has been registered by the Supplier as authorised to access the Services and use the Proprietary Software and has been issued with an Access Code.
Services: means the service(s) and any other product provided by the Supplier to the Customer or otherwise pursuant to the Conditions, which may include, the Software Services and the Additional Services.
Software Services: the provision of a limited license to access and use the Proprietary Software subject always to the provisions of the Access Rules.
Specifications: the description of technical specifications necessary to safely and securely enable access to the Proprietary Software, the uploading of any Deliverables and the supply of the Services as specified by the Supplier on the Website from time to time.
Supplier: Subsapp as a trading name of SubsApp.com, a limited liability company registered in Ireland.
Supplier Materials: all materials, equipment, documents, information, data and other property of the Supplier provided or supplied to the Customer as part of the Additional Services.
Third Party Content: means content made available to you by any third party in conjunction with the Services.
Website: means subsapp.com
Your Content: means content that you (or on your behalf or with your permission or authority) may provide to us as part of the Service offering in connection with your account.
In these Conditions, the following rules apply:
- 1. a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
- 2. a reference to a party includes its, successors or permitted assigns;
- 3. a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
- 4. any phrase introduced by the terms including in particular or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms;
- 5. a reference to writing or written includes faxes and e-mails.
Basis of a Contract
These Conditions govern your access to and use of the Services and the agreement between Subsapp (also referred to as “we,” “us,” or “our”) and you or the entity you may represent (“you” or “your”). The Conditions takes effect on the Effective Date.
You represent to us that you are lawfully able to enter into a Contract(s) (for example, you are not a minor), including these Conditions. If you are entering into these Conditions for or on behalf of a Customer, you represent to us that you have legal authority to bind that Customer.
- 1. You may access and use the Service in accordance with the Conditions.
- 2. To access the Services, you must have an account associated with a user name and password, and a valid form of payment (where applicable). Unless explicitly permitted by the Conditions, you will only create one account per user.
- 3. Third Party Content may only be made available in conjunction with the Services, at our discretion and with our express written consent, and may be subject to separate terms and conditions and include separate fees and charges.
- 4. For an Order, the Order constitutes an offer by the Customer to purchase Services in accordance with these Conditions.
- 5. The Order shall only be deemed to be accepted when the Supplier issues an Acceptance at which point and on which date the Contract shall come into existence (Effective Date).
- 6. The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Supplier which is not set out in the Contract.
- 7. Any samples, demonstrations, descriptive matter or advertising issued by the Supplier, and any descriptions or illustrations contained on the Website (or any of the Supplier’s catalogues, brochures or similar), are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
- 8. These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
- 10. In the event that the Customer participating in a Trial, the Contract shall last for a period of thirty (30) days from the date of the Acceptance.
- 11. At the conclusion of the Trial, the Customer will be asked to confirm whether it wishes to be provided with the Services on a paid basis. In the event that the Customer provides a Confirmation, then the Customer will be requested to confirm invoicing and payment methods with the Supplier. In the event that the Supplier accepts such invoicing and payment methods, it shall issue an Acceptance to the Customer and this Contract shall continue in full force and effect as and from the Commencement Date, until otherwise terminated in accordance with these Conditions.
- 12. If at the conclusion of the Trial, the Customer fails, refuses or neglects to provide a Confirmation, then the Contract shall terminate and the provisions of these Conditions dealing with termination shall apply.
- 13. For the avoidance of doubt, The Customer will at all times adhere to the Supplier’s anti-money
- 14.1 We may change or discontinue any or all of the Service or change or remove functionality of any or all of the Services from time to time. We will endeavour to notify you of any material change to any Services or discontinuation of any Services.
- 15.2 We may change, modify, discontinue or add to the Conditions (the “Modifications”) from time to time. The Modifications will become effective upon posting. By continuing to use the Service after the effective date of any Modifications, you agree to be bound by the Modifications without further notice. It is your responsibility to check for Modifications to the Conditions. We last modified the Conditions on the date as may be listed at the end of the Conditions.
15. You shall:
- 15.1 except to the extent caused by our breach of the Conditions, (a) you are responsible for all activities that occur under your account, regardless of whether the activities are authorised by you or undertaken by you, your employees or a third party (including your contractors, agents or End Users), and (b) we are not responsible for unauthorised access to your account;
- 15.2 ensure that Your Content and your and End Users’ use of Your Content or the Services will not violate any Applicable Law. You are solely responsible for the content and use of Your Content;
- 15.3 be deemed to have taken any action that you permit, assist or facilitate any person or entity to take related to the Conditions, Your Content or use of the Service Offerings. You are responsible for End Users’ use of Your Content and the Service Offerings. You will ensure that all End Users comply with your obligations under the Conditions and that the terms of your agreement with each End User are consistent with the Conditions. If you become aware of any violation of your obligations under the Conditions caused by an End User, you will immediately suspend access to Your Content and the Service Offerings by such End User. We do not provide any support or services to End Users unless we have a separate agreement with you or an End User obligating us to provide such support or services.
Supply of services
- 1.1 The Supplier shall supply the Services to the Customer in accordance with the Specification in all material respects.
- 1.2 The Supplier shall use all reasonable endeavours to meet any performance dates specified in the Order, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
- 2 The Supplier shall use all reasonable endeavours to ensure that the Services are available to Customer provided always that the Supplier shall have no liability to the Customer or obligation to provide the Services in the event of the occurrence of any of the following:
- 2.1 any network failures, external to the Supplier (including but limited to the Hosting System); or,
- 2.2 any scheduled or emergency maintenance of the Proprietary Software, the Website, the Hosting System or any computing systems and networks on which the Proprietary Software is hosted (provided always that the Supplier shall where reasonably possibly, plan any scheduled maintenance (within the direct control of the Supplier) outside of those hours considered to be high volume and provide prior notice to the Customer of any such scheduled maintenance likely to result in any outage of the Services); or,
- 2.3 server over-utilisation due to unforeseen increase in traffic by a client and/or permitted or unauthorised users.
- 1. Supplier’s Obligations: The Customer and the Supplier acknowledge that for the purposes of the Data Protection Act 2018 the Customer is the Data Controller and the Supplier is the Data Processor in respect of any Personal Data, save that the Supplier shall be the Data Controller and the relevant Club or Society shall be the Data Processor, with respect to the Personal Data of any members of any relevant Club or Society, that may have separately submitted Personal Data directly (in a format provided and approved by the Supplier) to the Supplier, as part of the Services. The Customer also acknowledges that insofar as it may be required to register as a Data Controller with the Data Protection Commissioner under the Data Protection Act (and as a corollary the Supplier is required by law register as a Data Controller) the Supplier has already effected a generic registration as a Data Processor with Data Protection Commissioner. The Supplier shall process the Personal Data only in accordance with, and subject to, the Customer’s instructions as received from time to time and shall not process the Personal Data for any purpose other than those authorised and instructed by the Customer or as permitted by the Data Protection Act. For the avoidance of doubt, The Customer acknowledges and agrees that the Supplier may collect and use certain content and other information you provide when you use the Services, including the right to use anonymised data sets for system testing, staff training, and as a Data Provider for statistical and research analysis and as a Data Provider to use the data to provide measurement, analytics, and other business services, and to use this information (including any activity as part of the Services) to help clubs, national governing bodies and other partners understand their membership and understand the types of people who use their services and how people interact with their organisations. The Customer agrees that the Supplier may use the output of such analysis for marketing purposes.
- 2. For the purposes of the Contract (but without limitation to any other form that such instructions and authorisation of the Customer may take) the Customer will be deemed to have authorised and instructed the Supplier to process Personal Data as and from the time the Customer (or any employees, contractors or agents acting on its behalf) first uses any of the Software Services.
- 4. The Supplier may authorise a third party (sub-contractor) to process the Personal Data provided that the sub-contractor’s contract, on terms which are substantially the same as those set out in this Contract; and terminates automatically on termination of this Contract for any reason.
The Customer shall:
- 1. ensure that the scope of any Services requested together with any information submitted in any Order are complete and accurate;
- 2. co-operate with the Supplier in all matters relating to the Services;
- 3. provide the Supplier, its employees, agents, consultants and subcontractors, with access to the Customer Systems (and if necessary access to the Deliverables, premises, office accommodation and other facilities as reasonably required by the Supplier);
- 4. provide the Supplier with any such other information and materials as the Supplier may reasonably require in order to supply the Services, and ensure that all such information and materials are accurate in all material respects;
- 5. obtain, prepare and maintain all Customer Systems;
- 6. ensure that the Customer Systems comply at all times with the Specifications;
- 7. upload the Deliverables from the Customer Systems using the Proprietary Software onto the Hosting System in a manner which at all times complies with the Specifications;
- 8. ensure that all Deliverables are uploaded onto the Proprietary Software in a lawful, accurate, safe and secure manner in all material respects;
- 9. obtain and maintain all necessary licences, permissions and consents which may be required before the date on which the Services are to commence;
- 10. keep and maintain the Supplier Materials at the Customer’s premises in safe custody at its own risk, maintain the Supplier Materials in good condition until returned to the Supplier, and not dispose of or use the Supplier Materials other than in accordance with the Supplier’s written instructions or authorisation;
- 11. immediately notify the Supplier in the event of the occurrence of any breach of security of the Customer Systems or unauthorised usage of the Services; and
- 12. comply at all times with all terms and conditions specified on the Website, any notifications or guidance posted on the Website and any amendments or modifications to the Conditions, the Privacy Statement, the Specifications, the Applicable Rules or any other rules or similar as posted on the Website from time to time and whether arising as a result in any change of law or and shall not by act or omission permit anything to be done which would result in any breach of any of the foregoing.
If the Supplier’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation, including but not limited to those specified as provided (“Customer Default”), then:
- 1. the Supplier shall without limiting its other rights or remedies have the right to immediately suspend, without warning, the continued performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays the Supplier’s performance of any of its obligations;
- 2. the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier’s failure or delay to perform any of its obligations as set out herein;
- 3. the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.
Charges and payment
- 1. The Charges for the Services shall be as specified and particularised in the Acceptance or otherwise.
2. The Customer shall pay each invoice submitted by the Supplier using one of the payment methods we support (including to a bank account nominated in writing by the Supplier):
- 2.1 within 30 days of the date of the invoice; and
- 2.2 in full and in cleared funds , and
- 2.3 time for payment shall be of the essence of the Contract.
- 3. All amounts payable by the Customer under the Contract are inclusive of amounts in respect of value added tax chargeable for the time being (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier 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.
- 4. The Customer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against the Supplier in order to justify withholding payment of any such amount in whole or in part. The Supplier may, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.
- 5. The Customer will be responsible, as required under Applicable Law, for identifying and paying all taxes and other governmental fees and charges (and any penalties, interest, and other additions thereto) that are imposed on that party upon or with respect to the transactions and payments under this Agreement.
- 6. The Customer permits the Supplier to collect from the Customer’s Account any of the fees, service charges, and/or penalties owed by the Customer, on the date or dates we select.
7. With respect to any payments or transfer of money or funds (a “Transfer(s)”) from the Supplier to a Club or Society, as may be required as part of a Contract, such Transfer shall only be conducted, when required, once:
- ● the Club or Society has securely provided its full bank account details (including, the bank name and address, account name, account number, sort code, IBAN and BIC);
- ● the Club or Society has provided written details to the Supplier, on its headed paper, of the individual(s) authorised to request a Transfer. The Club or Society shall also provide at least 14 days written notice to the Supplier of any change to the individual(s) so authorised ;
- ● the bank account must be in Ireland or the United Kingdom; and
- ● the account name must include the Club or Society name.
Clubs and Societies must sign up to and agree to a Direct Debit payment to the Supplier, with respect to certain of the Services, prior to them availing of any of those Services. In doing so, the Club or Society expressly authorise the Supplier (or its agent or provider) to collect payment for the Services, as provided, from the relevant Club / Society bank account (and other relevant) details which must be provided, and to instruct and complete a Direct Debit mandate (and any other necessary documentation to facilitate the Direct Debit payment) with the relevant bank or provider. The Supplier is entitled to rely on this instruction received in order to take a payment from the relevant bank account and the Supplier will provide such reasonable documentation or information, as may be required, to facilitate this payment regime. The payment must be in euro or sterling and the account to which funds are being withdrawn must be within the Single Euro Payments Area (SEPA). In order to cancel or amend either a Direct Debit payment or a Direct Debit mandate, you must contact the Supplier with whom you have agreed the terms, in order to agree in writing the cancelation of amendment, prior to doing so.
Intellectual property rights
- 1. All Intellectual Property Rights, title, interest and know-how in or arising out of or in connection with the Service offering Proprietary Software and the Supplier Materials are owned (or licensed) by the Supplier.
- 2. You represent and warrant to us that: (a) you or your licensors own all right, title, and interest in and to Your Content; (b) you have all rights in Your Content and necessary to grant the rights contemplated by the Conditions; and (c) none of Your Content or End Users’ use of Your Content or the Service Offerings will violate the Acceptable Use Policy, as it may be updated by us from time to time.
- 3. Subject to the terms of the Conditions, we grant you a limited, revocable, non-exclusive, non-sublicensable, non-transferrable license to do the following: (a) access and use the Services solely in accordance with your Contract; and (b) use our content solely in connection with your permitted use of the Services. Except as herein provided, you obtain no rights under these Conditions from us or our licensors to the Service offerings, including any related Intellectual Property Rights.
Save as otherwise provided herein, a party (Receiving Party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Receiving Party by the other party (Disclosing Party), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party’s business or its products or its services which the Receiving Party may obtain. The Receiving Party shall restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Receiving Party’s obligations under the Contract, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party. This clause shall survive termination of the Contract.
1 We may immediately suspend your or any End User’s right to access or use any portion or all of the Services, with or without notice, if we determine:
- 1.1 your or an End User’s use of the Services (i) poses a security risk to the Services or any third party, (ii) could adversely impact our systems, the Services or the systems or content of any other customer, (iii) could subject us, or any of our affiliates, or any third party to liability, or (iv) could be fraudulent or illegal;
- 1.2 you are, or any End User is, in breach of the Conditions;
- 1.3 you are in breach of your payment obligations under these Conditions; or
- 1.4 you have ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of your assets, or become the subject of any bankruptcy, reorganisation, liquidation, dissolution, administration, receivership, examinership or similar proceeding.
- 2 If we suspend your right to access or use any portion or all of the Services you remain responsible for all relevant fees and charges you incur during the period of suspension.
You will defend, indemnify, and hold harmless us, and any of our affiliates and licensors, and each of their respective employees, officers, directors, and representatives from and against any Losses arising out of or relating to any third party claim concerning, (a) your or any End Users’ use of the Services; (b) breach of these Conditions or violation of Applicable Law by you, End Users or Your Content; (c) a dispute between you and any End User; or (d) alleging that any of Your Content infringes or misappropriates that third party’s Intellectual Property Rights.
THE SERVICES ARE PROVIDED “AS IS”. EXCEPT TO THE EXTENT PROHIBITED BY LAW, OR TO THE EXTENT ANY STATUTORY RIGHTS APPLY THAT CANNOT BE EXCLUDED, LIMITED OR WAIVED, WE AND OUR AFFILIATES AND LICENSORS (A) MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE REGARDING THE SERVICE OFFERING OR THE THIRD PARTY CONTENT, AND (B) DISCLAIM ALL WARRANTIES, INCLUDING ANY IMPLIED OR EXPRESS WARRANTIES (I) OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR QUIET ENJOYMENT, (II) ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE, (III) THAT THE SERVICE OFFERINGS OR THIRD PARTY CONTENT WILL BE UNINTERRUPTED, ERROR FREE OR FREE OF HARMFUL COMPONENTS, AND (IV) THAT ANY CONTENT WILL BE SECURE OR NOT OTHERWISE LOST OR ALTERED.
Limitations of Liability
WE AND OUR AFFILIATES AND LICENSORS WILL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, REVENUES, CUSTOMERS, OPPORTUNITIES, GOODWILL, USE, OR DATA), EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, NEITHER WE NOR ANY OF OUR AFFILIATES OR LICENSORS WILL BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH: (A) YOUR INABILITY TO USE THE SERVICES, INCLUDING AS A RESULT OF ANY (I) TERMINATION OR SUSPENSION OF A CONTRACT OR YOUR USE OF OR ACCESS TO THE SERVICE OFFERINGS, (II) OUR DISCONTINUATION OF ANY OR ALL OF THE SERVICE OFFERINGS, OR, (III) WITHOUT LIMITING ANY OBLIGATIONS UNDER ANY SERVICE LEVEL AGREEMENTS, ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME OF ALL OR A PORTION OF THE SERVICES FOR ANY REASON; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; (C) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY YOU IN CONNECTION WITH THE CONTRACT OR YOUR USE OF OR ACCESS TO THE SERVICE OFFERINGS; OR (D) ANY UNAUTHORIZED ACCESS TO, ALTERATION OF, OR THE DELETION, DESTRUCTION, DAMAGE, LOSS OR FAILURE TO STORE ANY OF YOUR CONTENT OR OTHER DATA. IN ANY CASE, OUR AND OUR AFFILIATES’ AND LICENSORS’ AGGREGATE LIABILITY UNDER THIS CONTRACT WILL NOT EXCEED THE AMOUNT YOU ACTUALLY PAY US UNDER THIS CONTRACT FOR THE SERVICE THAT GAVE RISE TO THE CLAIM DURING THE 12 MONTHS BEFORE THE LIABILITY AROSE. THE LIMITATIONS IN THIS SECTION APPLY ONLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
- 1. The term of a Contract will commence on the Effective Date and will remain in effect until its expiry or terminated under this Clause.
- 2. You will terminate use of the Service(s), by either closing and/or logging out (manually or otherwise) of your account for all Services
- 3. Notwithstanding clause no. 2 above, a Club or Society may only terminate the provision of Services and a Contract, on giving three months written notice to the Supplier.
4. Without limiting its other rights or remedies, each party may terminate the Contract with immediate effect by giving written notice to the other party if:
- i. the other party commits a material breach of the Contract and (if such a breach is capable of remedy) fails to remedy that breach within 20 Business Days of that party being notified in writing of the breach;
- ii. the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of the Companies Act 2014 or (being an individual) is unable to pay his debts or appears to have no reasonable prospect of so doing, or (being a partnership) has any partner to whom any of the foregoing apply;
- iii. a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party (being a company);
- iv. the other party (being an individual) is the subject of a bankruptcy petition or order;
- v. a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
- vi. an application is made to court, or an order is made, for the appointment of an examiner or if a notice of intention to appoint an examiner is given or if an examiner is appointed over the other party (being a company);
- vii. a floating charge holder over the assets of that other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
- viii. person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
- ix. any event occurs or proceeding is taken with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned aforesaid; and / or
- x. the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; or the other party (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation
- 5. Without limiting its other rights or remedies, the Supplier may terminate a Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under this Contract on the due date for payment.
Consequences of termination
On termination of the Contract for any reason:
- i. the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt
- ii. the Customer shall return all of the Supplier Materials to the Supplier. If the Customer fails to do so, then the Supplier may enter the Customer’s premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract;
- iii. the Supplier shall cease rendering the Services and shall take steps to ensure that the Customer shall no longer be able to access the Proprietary Software including the cancellation of all access codes;
- iv. the Supplier shall not be under any obligation or liability to permit access to or to return any Deliverables to the Customer until such time as all payments referred to have been received in full by the Supplier. In circumstances where the Deliverables have not been returned to the Customer due to such non-payment, the Deliverables will (in due course and at a time of the Supplier’s election) be permanently deleted from the Supplier’s system (including the Hosting System and/or the Proprietary Software) in accordance with the Supplier’s obligations under the Data Protection Act;
- v. the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and,
- vi. those clauses or provisions which expressly or by implication have effect after termination shall continue in full force and effect.
- 1. For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of the Supplier including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport 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 or default of suppliers or subcontractors.
- 2. The Supplier shall not be liable to the Customer as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
- 3. If the Force Majeure Event prevents the Supplier from providing any of the Services for more than 8 weeks, the Supplier shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Customer.
Assignment and subcontracting:
- 1. The Supplier may at any time assign, transfer, novate, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.
- 2. The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
- 1. Any notice or other communication required to be given to a party under or in connection with this Contract shall be in writing and shall be delivered to the other party personally or sent by prepaid post, recorded delivery or by commercial courier, at its registered office (if a company) or (in any other case) its principal place of business, or sent by fax to the other party’s main fax number, or by e-mail to the other party’s e-mail address.
- 2. Any notice or other communication shall be deemed to have been duly received if delivered personally, when left at the address referred to above or, if sent by pre-paid post or recorded delivery, at 12pm on the third Business Day after posting, or if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed, or if sent by fax, on the next Business Day after transmission, or if by e-mail, and the sending email system confirms the notice was delivered successfully, the notice is deemed to be received by the other party on the day of that confirmation (provided that such day is a Business Day and if not a Business Day, then on the next day which is a Business Day).
- 3. This clause shall not apply to the service of any proceedings or other documents in any legal action.
- 1. A waiver of any right under the Contract is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
- 2. Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
- 1 If a court or any other competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
- 2 If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
- Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
A person who is not a party to the Contract shall not have any rights under or in connection with it.
Except as set out in these Conditions, any variation, including the introduction of any additional terms and conditions, to the Contract, shall only be binding when agreed in writing and signed by the Supplier.
Governing law and jurisdiction:
This Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, Irish law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of Ireland