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GENERAL
TERMS AND CONDITIONS |
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YOUR
ATTENTION IS SPECIFICALLY DRAWN TO CLAUSE 10(h) OF THIS CONTRACT.
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1.
DEFINITIONS |
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(a) |
"Commencement Date" means the date of execution of this Contract by eircom net. |
| (b) | eircom net means eircom Limited (trading as eircom net), a limited liability company, incorporated in Ireland, having its registered office at 114, St. Stephens Green West, Dublin 2. |
| (c) | "the Service" means the eircom net electronic data interchange and storage service known as "EDI tradefast". |
| (d) | "Service Interfaces" means those points where the telecommunications lines of an authorised public telecommunications operator are connected to the telecommunications equipment managed by eircom net's sub-contractor or, as the case may be, where eircom net accepts Transmissions into its Service. |
| (e) | "Site" means the security controlled premises housing any computer system in which User data will be held during the provision by eircom net of the Service. |
| (f) | "Transmission" means a transmission of data between one User and another User or one User and the Service whose start and end are denoted in accordance with the appropriate standards specified by eircom net from time to time. |
| (g) | A "User" is a person who has contracted to use the Service. |
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(h)
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"User Type" identifies the manner of connection to the Service and the facilities and resources provided by eircom net to the User to enable access to and use of the Service as stated in eircom net's applicable Price Schedule. |
2.
SUPPLY BY DESCRIPTION |
All Services and other items provided or made available by eircom net are provided or made available according to the description of them on the face hereof and/or in any Supplement hereto and/or in eircom net's applicable Price Schedule(s) current at the date of signature of this Contract by eircom net as amended from time to time in accordance with the provisions of this Contract. |
3.
PROVISIONS OF SERVICE |
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4.
USER'S OBLIGATIONS |
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(a) |
The User shall have available at the User's expense on the User's side of the Service Interfaces all such equipment and communication lines, magnetic media programs, personnel and other things as are necessary for the submission of Transmissions to the Service and for their retrieval and deletion therefrom or otherwise necessary for purposes of the Service. |
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| (b) | The User shall be responsible for the accuracy of the data and addressing and proper use of passwords within the "Transmissions" submitted to the Service and the correct formatting and addressing thereof or other functions proper to the User in accordance with the standards specified by eircom net from time to time. | |
| (c) | The User shall keep confidential information including passwords, identifying all other Users and the contents of their transmissions. | |
| (d) | The User shall retain a copy of all Transmissions submitted to the Service, or shall otherwise retain the ability to reconstitute such Transmissions until their correctness shall have been established so that eircom net shall be able to perform its obligation at sub-clause 10(f). | |
| (e) | The User shall nominate one representative and a deputy on either of whose authority eircom net may rely in its relationship with the User. | |
| (f) | The User shall use the Service in accordance with all applicable telecommunications and other laws, licences and regulations, including, without limitation, all regulations made by the Revenue Commissioners, and with such conditions as may be specified by eircom net from time to time. The User is solely responsible for all information or content provided to eircom net in connection with the Service. The User represents to eircom net that the User has all necessary rights to use all such material. eircom net reserves the right to reject for transmission or to remove any material which does not comply with this sub-clause 4(f). | |
| (g) | The User shall indemnify eircom net and hold eircom net harmless against any liability, cost or damages incurred by eircom net in consequence of: | |
| (i) |
the User transmitting data unlawfully or for an unlawful purpose or in breach of the requirements stipulated by eircom net from time to time; |
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| (ii) | the unlawful, improper or unauthorised use of the Service; | |
| (iii) | errors or omissions in any information content made available to eircom net in connection with the Service; or | |
| (iv) | alleged copyright or other intellectual property rights infringement, defamation or other tort on account of information content provided to eircom net. | |
| (h) | The User shall supply eircom net as soon as practicable with such resources and allow eircom net complete and prompt access to such information and facilities as eircom net may reasonably require in connection with the provision of any service(s) by eircom net. | |
| (i) | The User shall be responsible for all fees and charges resulting from use of the Service, including unauthorised use prior to the User notifying eircom net of such use and taking steps to prevent a recurrence by changing its password. | |
5.
FEES, CHARGES AND PAYMENTS |
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(a) |
The User shall pay on receipt of eircom net's invoices all Joining Fees and other applicable fees and charges of the type and amounts stated or referred to on the face of this Contract and/or in any Supplement hereto and/or in eircom net's applicable Price Schedule for the time being in force. eircom net may, from time to time, modify such fees and charges by giving not less than three months' written notice. |
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| (b) | Such fees and charges will be invoiced in accordance with sub-clause 5(a). | |
| (c) | eircom net's standard scales for personnel are based upon a 37 hour week between the hours of 09.00 and 17.15 daily excluding Saturdays, Sundays and public holidays. Travelling time directly incurred in the provision of any work at the User's premises will be counted as working hours. Any overtime work undertaken by eircom net personnel will be charged at the overtime rates for the time being in force. eircom net shall not do any chargeable consultancy work for the User except upon receipt of a written purchase order signed by one of the authorised representatives of the User. | |
| (d) | eircom net reserves the right to make a charge for any work done by eircom net which is attributable to the User's failure to perform his obligations or not specified by eircom net as part of any service(s) provided. | |
| (e) | Charges for components and materials for magnetic media, stationery and order supplies and for travel and subsistence (when not specifically included) are separately payable by the User and together with all other charges whatsoever arising from the operation of this Contract shall be payable on receipt of invoice(s). | |
| (f) | If any payment is overdue by the User for more than thirty days, then eircom net reserves the right to: | |
| (i) | suspend the Service, having given fourteen days notice of its intention so to do; and/or | |
| (ii) | charge interest on a daily basis from the original due date at the rate of four per cent above the Allied Irish Banks plc Base Rate (or if such rate should no longer be extant then such rate as in eircom net's opinion approximates thereto) in force from time to time; | |
| (iii) | at its sole discretion to alter future payment terms under this Contract; or | |
| (iv) | take whatever other action which it in its absolute discretion deems necessary. | |
6.
SECURITY OF DATA |
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(a) |
All data submitted to the Service by the User shall remain the sole property of the User. eircom net shall take all reasonable steps to ensure that User data is not lost or corrupted within the Service. |
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| (b) | eircom net shall keep all User data submitted to the Service strictly confidential and not disclose it to any third party other than as permitted by the terms of this Contract or to anybody having legally binding authority to require eircom net to make such disclosure. | |
| (c) | eircom net shall not alter any User data save to the extent necessary for performing conversions of protocol or of data structure and by deletion of passwords so as to make such data available to its intended recipient in a standard acceptable format. | |
| (d) | Subject to the provisions of sub-clause 6(f), eircom net shall ensure that no User data is converted into human readable form or interpreted in any way, save to the extent necessary to: | |
| i) | provide the Service; or | |
| ii) | facilitate recovery from a failure in the Service by producing a computer store dump or disk dump or store print with the Userıs permission. In such event, only personnel authorised by eircom net will be allowed access to such dump or print, which will not be removed from the Site and which will be destroyed by eircom net following recovery from the failure. If such permission is not given, then eircom net shall have no further liability in respect of the Transmissions concerned. | |
| (e) | Subject to the provisions of sub-clause 6(f), eircom net shall ensure that data is exchanged only between the User and other Users who have agreed to exchange the types of data concerned and whose current passwords coincide with passwords submitted for Transmissions of the data concerned. | |
| (f) | eircom net warrants that it has, where relevant (and honestly believes that third party providers on whose systems reliance is placed, have), built into the computer programs which will be used in the provision of the Service, checks and controls designed with a high degree of professional competence to detect and prevent unauthorised access to User data which is being transmitted or stored in electronic form. eircom net does not, and cannot, guarantee that a third party could not gain such unauthorised access, but eircom net shall at all times use its reasonable endeavours to prevent any such unauthorised access. | |
| (g) | eircom net shall ensure at all times that all access to computer operation areas in the Site and to computers used in the provision of the Service shall be through high level security locks, and eircom net shall enforce strictly controlled access to the Site. | |
| (h) | eircom net shall ensure at all times that effective restart and recovery procedures are available. | |
7.
INTELLECTUAL PROPERTY RIGHTS, CONFIDENTIALITY AND PUBLICITY |
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(a) |
The User accepts that all copyright and other intellectual property rights in any specifications, computer programs, manuals and other material written or provided by eircom net for or in connection with the Service ("Material") shall remain vested in eircom net or its licensors. The User will not disclose or make available any such Material or any part thereof to any other person in any form except without the prior written consent of eircom net. |
| (b) | The User will follow all such reasonable instructions as eircom net gives from time to time with regard to the use of trademarks or other indications of the property and other rights of eircom net or its licensors. |
| (c) | If any unauthorised use is made of any Material written or provided by eircom net and such use is attributable to any act or default of the User then, without prejudice to eircom net's rights or remedies hereunder, the User will immediately be liable to pay eircom net an amount equal to the fees and/or charges which would have been payable had eircom net contracted with the unauthorised User at the beginning of the period of authorised use. |
| (d) | eircom net shall be entitled to refer to the User in its promotional material as a User of the Service. |
8.
EMPLOYMENT |
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(a) |
No employer or employee relationship will be deemed to exist between the User and any eircom net personnel. |
| (b) | The User and eircom net will each indemnify the other against injury to or death of any of the other's personnel caused by an act or omission of the indemnifying party for which it as employer would have been liable if sued by the individual or its personal representatives. |
| (c) | Until six months after the performance of any work or six months after termination of this Contract, whichever is later, neither party will employ or solicit the employment or services of any personnel of the other party who have been engaged in connection with any services which are the subject of this Contract. Liquidated damages for breach of this provision will be payable by the defaulting party and will be equal to the gross salary of the person concerned for the first six months of his new employment or service contract with such party. |
9.
CHANGES IN THE eircom net SERVICE |
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(a) |
eircom net shall be entitled to change the Service at any time by |
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| (i) | correcting errors therein; or | |
| (ii) | introducing enhanced facilities. | |
| (b) | eircom net shall be entitled at any time to change the computers or any other thing used by eircom net in the provision of the Service. | |
10.
EXEMPTION AND LIMITATIONS OF LIABILITY |
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(a) |
Except for the failure to make payments when due, neither party will be liable for delay in performing obligations or for failure to perform obligations if the delay or failure results from circumstances beyond the control of the party (whether happening in Ireland or elsewhere) including, but not limited to, force majeure, act of God, refusal of licence (including refusal or renewal) or revocation of any licence approval or consent in respect of data communications equipment and/or Transmissions, (other than a refusal or revocation due to any act or omission on the part of eircom net) or other governmental act, fire, flood, tempest, explosion, accident, civil commotion, industrial dispute or impossibility of obtaining materials. |
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| (b) | eircom net does not warrant that the Service will meet the Userıs requirements or that the operation of the Service will be uninterrupted or error free. In particular, eircom net makes no warranties or representation to the extent that the operation of the Service is dependent on third party service providers and eircom net shall have no liability in respect of defects, interruptions or malfunctions in the Service which are attributable to such third party service providers. The User assumes the responsibility to take adequate precautions against damages to its operation which could be caused by defects, interruptions or malfunctions in the Service. | |
| (c) | eircom net shall have no liabilities for indirect or consequential loss, or for loss of business, or of profits, howsoever arising. | |
| (d) | eircom net shall have no liability for any loss or damage suffered by the User as a result of the non-availability or failure of any telecommunications line of any duly authorised public telecommunications facilities. | |
| (e) | Since eircom net has no knowledge or control over the types or volumes of transmissions which the User and other Users will submit to the Service at any particular time, eircom net does not guarantee any specific time for delivery of any Transmission. | |
| (f) | If any Transmission submitted by the User to the Service is through the fault of eircom net incorrectly transmitted or stored, eircom net will retransmit such Transmission at eircom net's expense, provided that the User shall have fulfilled his obligation at sub-clause 4(d) and eircom net shall have no other liability whatsoever. | |
| (g) | (g) eircom net and its licensors and all other telecommunications service providers, companies, undertakings and administrations involved in the provision of the Service shall be immune from all liability in respect of any injury, loss or damage suffered by a person in the use of the Service by reason of failure or delay in providing operating or maintaining the Service or failure, interruption, suspension or restriction of the Service. | |
| (h) | THE PROVISIONS OF SECTION 39, SALE OF GOODS AND SUPPLY OF SERVICES ACT, 1980 ARE HEREBY EXCLUDED FROM THIS CONTRACT. | |
| (i) | Save and insofar as the same are lawfully excluded under this Agreement by virtue of the provisions of Section 55 of the Sale of Goods Act, 1893, (as amended by Section 22 of the Sale of Goods and Supply of Services Act, 1980) and of Section 40 of the Sale of Goods and Supply of Services Act, 1980, no statement on equipment or on any document including this Agreement shall in any way prejudice the statutory rights which the User may enjoy while "dealing as a consumer" within the meaning of the Sale of Goods and Supply of Services Act, 1980, or which he may otherwise enjoy under the said Section 55 or Sections 40 and 46 of the 1980 Act or while dealing as a "consumer" within the meaning of Regulation 2 of the European Communities (Unfair Terms in Consumer Contracts) Regulations, 1995. Subject and without prejudice to other aspects of mandatory public general law, the requirements of the European Communities (Unfair Terms in Consumer Contracts) Regulations, 1995, shall only be imported into this Contract where eircom net is dealing with a User as a "consumer" within the meaning of the said Regulation 2. | |
| (j) | Subject to the limits set out in sub-clause 10(k), eircom net shall accept liability to the User in respect of personal injuries or damages to the tangible property of the User resulting from the negligence or wilful default of eircom net or its employees, agents or sub-contractors. | |
| (k) | eircom net's entire liability hereunder (without prejudice to the provisions hereof) shall be limited to damages of an amount equal to | |
| (i) | IR£20,000 in the case of any liability under (i) above; and | |
| (ii) | in the case of any other liability the aggregate of the total User Charges for the twelve (12) months immediately preceding the date of such liability arising. | |
| (l) | Subject only to sub-clause10(i), eircom net shall have no liability to the User in respect of any liability unless the User shall have served notice of the same upon eircom net within one calendar month of the date on which the User became aware of the circumstances giving rise to such liability or the date when the User ought reasonably to have become so aware. | |
| (m) | Nothing in this Clause 10 shall confer any right or remedy upon the User to which it would not otherwise be entitled. | |
| (n) | The User shall indemnify eircom net, its employees or agents against all claims made against eircom net, its employees or agents for loss, damage or injury to any person or property occasioned by or arising from the User's operation of the Service except and insofar as eircom net, its employees or agents are liable therefor. | |
| (o) | Save as expressly stated in this Agreement, eircom net shall have no liability whatsoever to the User in respect of this Agreement whether in contract, tort or otherwise and all conditions and warranties express or implied whether by statute or common law or otherwise are hereby excluded to the extent permitted by applicable public general law. | |
| (p) | The provisions of this Clause 10 shall survive any termination of this Agreement. | |
11.
DURATION AND TERMINATION |
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(a) |
The Contract shall come into force on the Commencement Date and shall, subject to the provisions of sub-clause 11(b), remain in force until terminated by either party having given the other not less than thirty daysı prior notice of such termination. |
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| (b) | Either party may terminate this Contract by notice in writing to the other forthwith in any of the following events (whether or not they occur in Ireland): | |
| (i) | if the other party is guilty of any material breach, non-observance or non-performance of its obligations hereunder or any of them and does not remedy the same (if it is capable of remedy) within thirty days of notice of such failure or breach being given by the non-defaulting party; | |
| (ii) | if any order is made or an effective resolution is passed for winding up the other, except for the purposes of an amalgamation, merger or reconstruction; | |
| (iii) | if an encumbrancer takes possession or a receiver, examiner or administrator or similar officer under an analogous process is appointed over the whole or any part of the undertaking or assets of the other; | |
| (iv) | if the other becomes insolvent or makes any special arrangement or composition with its creditors or any special assignment for the benefit of its creditors. | |
| (c) | On termination of this Contract for whatever reason each party will return to the other forthwith all copies of computer programs including any parts merged with other programs, documentation, papers and other property, including any Material, provided under this Contract and belonging to the other. | |
| (d) | Termination of this Contract for any cause shall not affect rights or obligations of the parties hereto in relation to anything done prior to such termination and the provisions of this Contract shall continue to bind the parties insofar and so long as may be necessary to give effect to such rights and obligations. | |
12.
NOTICES |
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(a) |
All notices hereunder shall be in writing addressed to the parties at their respective addresses set forth herein or as may be notified for the purpose, and shall, if sent by post, be deemed to have been given two days notice after the date of posting. |
| (b) | The provisions of this Agreement are for the sole benefit of the parties, and not for the benefit of any other person or legal entity. |
| (c) | If any part or parts of this Agreement are held to be invalid, the remaining parts of the Agreement will continue to be valid and enforceable. |
| (d) | The headings in this Agreement are for reference purposes only; they will not alter the meaning or construction of the terms of this Agreement. |
| (e) | Any action of any kind by either party arising out of this Agreement must be commenced within two (2) years from the date the right, claim, demand or cause of action shall first arise. |
13. ASSIGNMENT |
eircom net shall be entitled to sub-contract all or any of its obligations hereunder. The User shall not assign, sub-contract or otherwise dispose of this Contract or any part hereof or any benefit hereunder without the prior consent in writing of eircom net. eircom net may assign this Contract in whole or in part to a wholly owned subsidiary company of eircom plc. |
14. LAW |
This Contract shall be subject to Irish law and the parties agree to submit to the exclusive jurisdiction of the Irish Courts. |
15.
ENTIRE AGREEMENT |
This Contract together with any documents expressly referred to herein or in any Supplement hereto duty signed on behalf of eircom net, represents the entire agreement between the parties and supersedes all other agreements, oral or written, and all other communications between the parties relating to the subject matter hereof. |