IMS Service Contract Terms & Conditions 

1.0          INTERPRETATION

1.1          In this Agreement the following words shall have the following meaning(s):
Access Details shall mean the password identity or account formula given exclusively to the Customer for the purpose of gaining access to elements of the Service(s);
Agreement shall mean in order of precedence, these Conditions, the Summary, the Schedules attached hereto and any other document signed by both Parties which is expressly stated to form part of this Agreement;
Authorized User shall mean anyone registered by the Customer as authorized to use the Service;
Payment means the amount specified as payable by the Customer for Goods and/or the Service to which such a  payment is applicable;
Payment Period means the period of payment for the provision of Service which commences on the Commencement Date and shall continue for the minimum duration outlined in the contract summary;
Conditions shall mean these terms and conditions;
Confidential Information shall mean all information (whether oral or written) designated as such by the disclosing party;
Content shall mean information, video graphics, sound, music, photographs, software and any other materials (in whatever form) published or otherwise made available on the Internet;
Further Periods shall mean successive periods of one year, during which the Agreement is continued after the expiration of the First Period or the previous period, each such period being referred to as a Continuation Period;
Customer means the company, or other legal entity so named on the Summary and anyone reasonably appearing to  the Contractor  to be acting with the entity’s authority;
Customer Equipment means all computer hardware, software, cabling, apparatus and facilities provided by the Customer to enable the Contractor to provide the Service;
Customer Premises means the premises described on the Summary details;
Direct Line Access (“DAL”) means the wireline or wireless telecommunications link between the Customer Equipment and  a line provider;
Emergency shall mean a situation where in the Contractor’s sole view there has been, is or may be an immediate threat of serious harm or damage to the  facilities or property of Contractor or property managed under the control of the Contractor;
Commencement Date – the date that is set out in the contract summary;
Contractor Equipment means equipment placed by the Contractor on the Customer’s premises in connection with the provision of the Service;
Summary means the summary on which the Customer specifies Goods or the Service(s) required;
Goods means the articles or things to be sold by  the Contractor to the Customer under the terms of this Agreement
Internet Connection shall mean the Customer’s connection with the Contractor;
First Period
means the Minimum Period of one year commencing on the Commencement Date;
Planned Maintenance shall mean any work planned in advance to be carried out by the  Contractor or on behalf of the Contractor, which will cause the availability of the Service to be suspended;
Service means a Service or, where appropriate, part of a Service as outlined in the Summary to this Agreement;
Site(s) means the property (properties) at which  the Contractor agrees to provide the Service;
Software means any software provided to enable the Customer to access or use the Service;
Third Party Information means data, information, video, graphics, sound, music, photographs, software and any other materials (in whatever form) not owned or generated by or on behalf of the Customer, published or otherwise made available on the Customer Website (or otherwise) during the Customers use of the Service;
Working Day means every day of the week excluding Saturday, Sunday and statutory holidays;

1.2          The headings in this Agreement are inserted only for convenience and shall not affect its interpretation.

1.3          Where appropriate words denoting a singular number only shall include the plural and vice versa

1.4          Reference to any statue or statutory provision includes a reference to the statute or statutory provisions as from time to time amended, extended or re-enacted

2.0          DURATION

2.1          This Agreement is effective from the date of signature by the Parties and shall continue for the Minimum Period and thereafter for one or more Further Periods until termination in accordance with  the provisions of this Agreement;.

2.2          The Contractor will endeavour to provide the Service by the date agreed with the Customer but all dates are estimates and the Contractor accepts no liability for failure to meet those dates.

3.0          OBLIGATION TO PROVIDE GOODS AND SERVICES

3.1          Notwithstanding that the Contractor may have given a quotation, no request for the provision of the Service and no order for the supply of Goods shall be binding on the Contractor unless and until it has been accepted in writing by the Contractor.

4.0          PROVISION OF SERVICE – GENERAL

4.1          The Contractor will provide the Customer with the Service upon the terms of this Agreement.

4.2          Provision of the Service may depend upon a satisfactory Site survey, installation of Equipment and subsequent activation of the Service

4.3          Provide the Service with the reasonable skill and care.

4.4          It is technically impracticable to provide a fault free Service and the Customer does not undertake to do so, the Customer will however endeavour to remedy any faults in so far as same may be attributable to any aspect of the Goods or Service over which the Customer has control

4.5          From time to time for operational, technical, commercial or other reasons the Contractor may:

4.5.1       Change the codes and the numbers allocated to the Customer or alter or vary the technical specification or any other aspect of the Service

4.5.2       Suspend or terminate Service immediately without notice

4.5.3       Give the Customer instructions which it believes are necessary

4.6          The Contractor will give the Customer as much notice as is possible before taking any of the above actions and whenever practicable will agree a time for suspension of the Service to the Customer.

5.0          CONTRACTOR EQUIPMENT

5.1          The Contractor Equipment remains the property of the Contractor at all times.

6.0          CONNECTION OF EQUIPMENT TO THE SERVICE

6.1          Any Customer Equipment must be connected and used in accordance with any instructions and any safety or security procedures applicable to the use of such equipment, and must be technically compatible with that Service.

7.0          ACCESS AND SITE REGULATIONS

7.1          Anyone acting on the Contractor’s behalf will observe the Customer’s reasonable Site regulations, previously advised in writing to the Contractor.  In the event of any conflict between the Site regulations and these Conditions, these Conditions shall prevail.

8.0          USE OF SERVICE

8.1          The Service is provided solely for the Customer’s own use (including use by the Authorised Users) and the Customer will not resell or attempt to resell the Service (or any part or facility of it) to any third party unless otherwise expressly agreed.

8.2          The Service must not be used for any purpose that:

8.2.1       Constitutes a violation or infringement of the rights of any person, firm or company.
Customer shall be responsible for any such misuse of the Service.

8.3          The Service must not be used:

8.3.1       To send, receive, upload, download, use or re-use any information or material which is illegal, fraudulent, offensive, abusive, indecent, defamatory, obscene or menacing, or in breach of confidence, copyright, privacy or any other rights; or

8.3.2       To cause annoyance, inconvenience or needless anxiety; or

8.3.3       To send or provide unsolicited advertising or provided using the Service, where applicable, by any third party that are in any way connected with the transmission of “junk mail”, “spam”, “chain letter”, “pyramid schemes” or the unsolicited mass distribution of e-mail, or with any unethical marketing practices; or

8.3.4       Other than in accordance with the acceptable usage policies of any connected networks and Internet Standards

8.4          Contractor’s performance obligations under this Agreement shall be solely to the Customer, and not to any third party. Accordingly, to the extent not prohibited by law, and without prejudice to the general indemnity pursuant to the provisions of clause 18 the Customer agrees to indemnify, defend, and hold the Contractor harmless against and from all liabilities and costs (including reasonable legal fees) arising from any and all claims by any such third party in connection with the Service regardless of the form of action, whether in contract, tort, warranty, or strict liability arising from the provisions of the Service which are brought or threatened against the Contractor by a third party, including inter alia, because:

8.4.1       The Service is in breach of the provisions of this clause 8 and/or

8.4.2       The Service is faulty, and/or cannot be used by that third party.

8.5          The Customer shall notify the Contractor of any such claims or proceedings and keep the Contractor informed as to the progress of such claims or proceedings.

9.0          CUSTOMERS RIGHTS AND OBLIGATIONS

9.1          The Customer agrees to pay the Payment and any sums due in accordance with the provisions of the Agreement.

9.2          The Customers shall be responsible for the provision and maintenance of all Customers’ Equipment, associated cabling

9.3          The Customer shall be responsible for the safe-keeping and proper use of the Contractor’s Equipment, and the Customer shall pay for the replacement and or repair of any such apparatus which is lost, damaged, (otherwise than by fair wear and tear) or destroyed and the Contractor’s charge for replacement of the apparatus shall be at the Contractor’s discretion, together with a charge for materials for the replacement or repair of the apparatus.

9.4          The Customer shall be responsible for configuring the Customer Equipment with the Software and shall ensure that the Customer Equipment complies with all requirements specified by the Contractor during the provision of Service.

9.5          The Customer shall return all Contractor Equipment to the Contractor at the termination of this agreement and upon request, and hereby grants the Contractor full licence to enter any place where such Contractor Equipment may be for the purpose of inspecting, disconnecting and removing any equipment not so returned and further undertakes to indemnify and hold the Contractor harmless against all costs of so doing.

9.6          The Customer undertakes at its own expense:-

9.6.1       To provide suitable accommodation and to provide all appropriate support or equipment for the Service

9.6.2       To complete all preliminary preparation work

9.6.3       To permit access to any Site, to anyone acting on the Contractor’s behalf, to enable the Contractor to carry out its obligations under this Agreement.

9.6.4       Not to allow the Contractor Equipment to be serviced, repaired, or otherwise interfered with other than by an authorised representative of  the Contractor.

9.6.5       Upon and after termination of the Agreement to allow the Contractor access to remove all Contractor Equipment

9.6.6       To inform the Contractor of any change of name, address and/or telephone number of the Customer;

9.6.7       Provide at its own expense all electricity supply required for maintenance and operation of the Service and the Contractor Equipment

9.7          The Customer shall:

9.7.1       keep secure all information relating to Authorised Users it acquires using the Service; and

9.7.2       keep personal data or other information subject to the Data Protection Act 1988, as amended, in accordance with all applicable Data Protection and privacy requirements (of whatever jurisdiction) and not use or disclose such information for any unlawful purpose.

9.8          The Customer is solely responsible for evaluating any goods (including software) or services offered by third parties via the Internet.  The Contractor will not be a party to and is not responsible for any transactions between the Customer, Authorised Users and third parties.

9.9          The Customer is responsible for the acts and omissions of all Authorised Users in connection with the Service and is liable for any failure by any Authorised User to perform and observe the terms and conditions of this Agreement;

9.10        The Customer shall observe and comply fully with the laws of copyright and all intellectual property rights in respect of the service.

9.11        The Customer is solely responsible for any transactions of any kind entered into between the Customer and the Authorised User or any other third parties accessing or acting in reliance on the Service, or Third Party Information. The Contractor will not be a party to or in any way responsible for any transaction between the Customer and an Authorised User or other third party.

10.0        CONTRACTOR’S RIGHTS AND OBLIGATION

10.1        Prior to commencement of the Service, and where necessary for the provision of the Service, the Contractor shall perform a survey of the Site. Following this, the Contractor shall instruct the Customer to make modifications to the Customer’s Site or to the Customer’s Equipment to make them technically compatible with the Service to be provided.

10.2        Unless the Contractor notifies the Customer otherwise, the Contractor will be responsible for obtaining and providing any Direct Access Line needed to provide the Service to the Site.

10.3        The Contractor will respond to reported faults without undue delay. The Contractor will notify the Customer if the fault lies beyond the Customer Premises.

10.4        For the purposes of providing new connections, updating facilities and general maintenance, scheduled downtime may occur from time to time.  The Contractor will use its reasonable endeavours to schedule maintenance in accordance with the Customer’s requirements.

11.0        INTERNET

11.1        The Service, if applicable, enables access to the Internet. The Internet is separate from the Service and use of the Internet is solely at the Customer’s and any Authorised User’s risk and subject to all applicable laws.  The Contractor has no responsibility for any information, software, services or other materials obtained by the Customer or Authorised Users using the Internet.

12.0        SECURITY

12.1        The Customer is responsible for the security and proper use of all Access Details and must take all necessary steps to ensure that they are kept confidential, secure, used properly and not disclosed to unauthorised parties.

12.2        The Customer must immediately inform the Contractor if there is any reason to believe that any Access Details has or is likely to become known to someone not authorised to use it or is likely to be used in an unauthorised way.

12.3        The Contractor reserves the right (as its sole discretion) to require the Customer to change any or all of the Access Details used by the Customer in connection with the Service.

13.0        INTELLECTUAL PROPERTY RIGHTS

13.1        The Customer agrees to sign any agreement required by the owner of the copyright in the Software to protect the owner’s interest in that software.

14.0        TERMS OF PAYMENT

14.1        The Payments and the invoice periods for the Service will commence on the Commencement Date and shall be as set out in the Summary and shall be subject to any change by the Contractor upon thirty days prior notice given by the Contractor to the Customer.

14.2        Subject to clause 14.3 all Payments, shall be due and payable within [30] days of the date of invoice.  The Contractor may charge daily interest on late payments at a rate equal to 2% per annum above the base lending rate of Allied Irish bank or at the rate of 18% per annum at the option of the Contractor

14.3        Credit terms are subject to review by the Contractor from time to time and the Contractor shall at all times have the right to suspend or vary any credit terms granted.  If at anytime the Customer should be in default in payment of any sums due to the Contractor or the Contractor’s relationship with the Customer should be terminated for any reason then all sums (including interest) due by the Customer shall be payable immediately to the Contractor.

14.4        The sums due to the Contractor under the Agreement shall be due in full to the Contractor in accordance with the terms of the Agreement and the Customer shall not be entitled to exercise any set-off, lien, or any other similar right or claim

15.0        CONTRACTOR WARRANTIES

15.1        The Contractor, makes no warranty whatsoever in relation to the Service or  the Contractor Equipment or the goods  and its or their operation.  Any conditions or warranties (whether express or implied by statute, common law or arising from conduct or a pervious course of dealing or trade custom or usage) as to the quality of the same or their fitness for any particular purpose is made known expressly or by implication to the Contractor is denied.

15.2        The Customer accepts that the Contractor does not monitor or exercise  control over messages or other data sent over the Service or otherwise available on the Internet and that the security of the internet as a communication medium, or as a medium for purchasing or payment cannot be guaranteed and that the Contractor shall have no liability in connection therewith.

15.3        The Agreement for the provision of the Service or for the sale of Goods shall not constitute a sale by description or sample.

16.0        CUSTOMER WARRANTIES

16.1        The Customer warrants that it does not act as a consumer in relation to the transaction(s) governed by the Agreement but in the course of its business.

17.0        LIMITATION OF LIABILITY

17.1        The Contractor is not liable to the Customer or any third party in contract, tort or otherwise for any financial loss whatsoever or for any indirect or consequential loss however arising in relation to the Goods or the use of the Service or the Goods of any failure, interruption or error or default by the Contractor in the provision thereof, or otherwise in connection with this Agreement.

17.2        The Contractor’s liability to the Customer in contract, tort (including negligence) or otherwise in relation to this Agreement shall be limited.

17.2.1     in any event, to €1,269,738 for any one incident or series of related incidents and to € 2,539,476 for all incidents in any period of 12 months

17.3        The Contractor shall have no liability of any kind in respect of:

17.3.1     Contents or any other material on the Internet which can be accessed using the Service and is not responsible in any way for any goods (including software) or services provided by third parties advertised, sold or otherwise made available by means of the Service or on the Internet; and

17.3.2     Any unauthorised access to the Customer’s computer system through the Service and in this respect the Customer acknowledges that any material and/or data downloaded or otherwise obtained through the use of the Service is at the risk of the Customer and the Customer is solely responsible for any consequences thereof including any damage to the Customer’s computer system or loss or corruption of data resulting there from.

17.4        The Contractor is not liable to the Customer either in contract, tort (including negligence) otherwise for the acts or omissions of other providers of telecommunications or Internet services (including domain name registration authorities) or for faults of their equipment.

17.5        Each provision of this clause 17 operates separately. If any part is held to be unreasonable or inapplicable in any circumstances the other parts shall continue to apply.

18.0        INDEMNITY

18.1        The Customer shall at all times keep the Contractor indemnified and hold  the Customer harmless against any claims for loss, damage, costs, expenses, injury or death to third parties howsoever arising (directly or indirectly) out of or in connection with the negligence, breach of duty of care breach of any terms of the Agreement or any other act or omission of the Customer in relation to the use of the Service or the Goods hereunder.

19.0        FORCE MAJEURE

19.1        Neither party shall be held responsible for any delay or failure in performance of any part of this Agreement (other than a payment obligation) to the extent such delay or failure is caused by:  fire, flood, lightning, explosion, war, strike, embargo, labour dispute, government requirement, civil or military authority, act of God or nature, inability to secure materials or transportation facilities, act or omission of carriers or suppliers, acts or failure to act of any governmental or other competent authority, or any other causes beyond its reasonable control, whether or not similar to the foregoing; provided, however, that the Customer by reason of such cause shall not be relieved of its obligation to make any required payments that are due to the Contractor.  Each party shall endeavour to give the other reasonable notice of any such delay.

19.2        Without prejudice to Clause 19.1 in the event of:

19.2.1     a refusal or delay by a third party to supply telecommunications service to the Customer.

19.2.2     The Contractor being prevented by restrictions of a legal or regulatory nature from supplying a service.

The Contractor will have no liability to the Customer for failure to provide a Service.

20.0        SUSPENSION OF SERVICE

20.1        Except in the case of emergency (where disconnection may be implemented immediately by the Contractor without notice to the Customer) if the Customer is in breach of any of these Conditions and the Customer having been notified of such breach in writing has failed to remedy, that breach within fourteen (14) days (or seventeen (7) days in the case of non-payment of charges), the Contractor may summarily suspend the Service.

20.2        The Contractor may suspend the Service

20.2.1     Where the Contractor has suspended the Service, it shall only re-establish the Service when the Customer remedies all breaches to the Contractor’s satisfaction.  Any such reconnection shall require payment of a Connection Fee/or the implementation of such changes as the Contractor may require

20.2.2     Any suspension of the Service shall not exclude the Contractor’s  right subsequently to terminate this Agreement.

21.0        TERMINATION

21.1        Either party may terminate the Agreement upon 60 days written notice to the other and any such termination shall be effective on the expiry of such notice period, such notice to expire on or after the end of the Minimum Period.

21.2        Without prejudice to the Contractor’s other rights. The Contractor shall be entitled to terminate forthwith in the event that:

21.2.1     The Customer fails to pay any sum due to the Contractor in accordance with the terms of payment, or

21.2.2     The Customer is in material breach of any term of the Agreement; or

21.2.3     The Customer fails to comply with any reasonable condition specified by the Contractor in relation to the use of the Services and/or where such a breach is capable of remedy, the Customer has failed to remedy same within 10 days of a request so to do, or

21.2.4     The Contractor is obliged to comply with an order, instruction or request of Government or other competent authority, or

21.2.5     The Contractor finds itself to have irreconcilable dispute with any third party upon whom provision of Service depends.

21.2.6     An encumbrancer takes possession of, or an examiner or a receiver is appointed over, any property or assets of the Customer, or the Customer makes any voluntary arrangement with its creditors, or (being a company) goes into liquidation save for purposes of reconstruction or amalgamation, the Contractor shall have the option at its discretion either to terminate the Agreement or to require the Customer within such period as  the Contractor may specify, to do such things or take such steps and furnish satisfactory proof to the Contractor that such event has been cured, or never occurred to has ceased to exist as the case may be.

22.0        DISPUTE

22.1        Any dispute between the Parties shall be referred to arbitration under the Arbitration Rules of the Chartered Institute of Arbitrators – Irish Branch and shall be governed by the Arbitration Act, 1954 to 1998 as may be amended or replaced from time to time.

23.0        GENERAL

23.1        If any provisions of the Agreement are held to be unenforceable, illegal or void in whole or in part the remaining portions of the Agreement shall remain in full force and effect.

23.2        Nothing in this Agreement shall be deemed to constitute a partnership or joint venture between the Parties or constitute one party the agent of the other for any purpose whatsoever.

23.3        The parties acknowledge and agree that:

23.3.1     They have not been induced to enter into this Agreement by any representation, warranty not expressly incorporated into it, and

23.3.2     In connection with this Agreement their only rights and remedies in relation to any representation, warranty or other assurance shall be for breach of this Agreement and that all other rights are excluded, except in the case of fraud.

24.0        ENTIRE AGREEMENT, VARIATION AND WAIVER

24.1        This Agreement represents the entire understanding of the Parties and supersedes all prior written and oral agreements relating to its subject matter and cannot be modified except in writing.

24.2        Failure, omission, delay or waiver by either Party to exercise or enforce any right conferred by this Agreement shall not be deemed to be a waiver of any such right and does not operate so as to bar the exercise or enforcement thereof, or any such right or any other right on any later occasion.

25.0        ASSIGNMENT

25.1        This agreement is personal to the Customer who may not assign or transfer any of its rights or obligations under this Agreement, without the prior written consent of the Contractor.

25.2        The Contractor may assign all of its rights and obligations under this agreement to any party to which it transfers all or part of its business provided that the assignee undertakes to be bound by and perform the obligations of the Contractor under this Agreement.

25.3        The Contractor also reserves the right to subcontract the provision of Service (or part thereof) to a subcontractor without consent, whereby the Contractor’s obligations to the Customer as contained herein shall also remain vested with the Contractor.

26.0       JURISDICTION AND LAW 

26.1       This Agreement shall be subject to the laws of Ireland and to the non exclusive jurisdiction of the Irish courts.

27.0       NOTICES

27.1        Notices given under this Agreement (including invoices sent by  the Contractor to the Customer) must be in writing and may be delivered by hand or sent by telefax, facsimile, or post to the addressee at the following addresses:

27.1.1     To the Contractor at the address of the Contractor shown on the Summary or an alternative address which the Contractor notifies to the Customer;

27.1.2     to the Customer at the address set out in the Summary.