1. CONTRACT STRUCTURE AND INTERPRETATION
1.1 The contract pursuant to which Secora Consulting will provide services is made up of the following, all as defined in clause 2 below:
1.1.1 the Proposal;
1.1.2 the Authorisation Form;
1.1.3 these Terms and Conditions, (together the Contract.)
1.2 In the event of any conflict between any of the documents that make up the Contract, they shall be applied as set out in clauses 1.1.1 to 1.1.3 with descending order of precedence.
1.3 The Contract shall constitute the entire agreement between the parties and supersedes any previous agreement or understanding and may not be varied except in writing between the parties and signed by their respective authorised signatories. In addition, no other terms and conditions stated on the Client’s purchase order or any other document issued by the Client will apply in any way.
2. DEFINITIONS
“Affiliate” means in respect of a party any entity that directly or indirectly Controls or is Controlled by, or is under common Control with another entity;
“Anti-Bribery Laws” means any and all statutes, statutory instruments, bye-laws, orders, directives, treaties, decrees and laws (including any common law, judgment, demand, order or decision of any court, regulator or tribunal) which relate to anti-bribery and/or anti-corruption, including the Criminal Justice Corruption Offences Act 2018;
“Authorisation Form” has the meaning given to it in clause 4.2;
“Business Day” means a day other than a Saturday, Sunday or public holiday in Ireland;
“Cancellation Fee” has the meaning given to it in clause 5.2;
“Client” means the individual(s) and/or organisation(s) to whom Secora Consulting is providing Services;
“Confidential Information” means any information (whether written, oral, in electronic form or in any other media) that is disclosed by or on behalf of a party to or otherwise accessed by the other party or its employees, agents and/or subcontractors in connection with the Contract and/or the provision of the Services and that relates (in whole or in part) to the disclosing party, its business, its Affiliates and their respective businesses, including all tangible and intangible information designated as confidential by any party in writing and all other information which may, by its nature, be reasonably regarded as confidential including, but not limited to, in respect of the Client, details of the Client’s systems/equipment, procedures, network configuration and topology, passwords, private encryption keys and, in respect of Secora Consulting, details of Secora Consulting’s methodologies;
“Consultant” means the individual(s) provided by Secora Consulting for the performance of the Services, whether they be an employee of Secora Consulting or a Third Party Contractor;
“Contract” has the meaning given to it in clause 1.1;
“Control” means the ability to direct the affairs of an entity, whether by virtue of the ownership of the majority of shares in that entity or the legal power to direct or cause the direction of the general management of that entity and Controls and Controlled shall be construed accordingly;
“Data Protection Legislation” means the Data Protection Act 2018 (Ireland) and the General Data Protection Regulation 2016/679 (“GDPR”) and Privacy and Electronic Communications (EC Directive) Regulations 2003, together with any related or ancillary legislation;
“Deliverables” means all reports, documents, papers, designs, software, and all other materials in whatever form, including hard copy and electronic form, prepared by Secora Consulting for the Client in the provision of the Services;
“Fees” means Secora Consulting’s fees for the Services as detailed in the Proposal and the relevant Services Module(s), together with all reasonable expenses incurred by the Consultant in relation to the Services;
“GDPR” has the meaning set out in the definition of Data Protection Legislation;
“GDPR Information Form” has the meaning set out in clause 7.2.8;
“General Terms and Conditions” means these general terms and conditions;
“Good Industry Practice” means the exercise of that degree of skill, diligence, prudence and foresight which would reasonably and ordinarily be expected from a skilled and experienced operator engaged in providing services of the same kind as the Services;
“Insolvency Situation” means a party:
(a) enters liquidation;
(b) has a receiver, liquidator, administrator, trustee or an individual with a similar role appointed over any of its assets;
(c) proposes to make arrangements with its creditors or goes into liquidation; or
(d) suffers an event which, under the law of any jurisdiction, is equivalent to any of the acts or events specified above;
“Intellectual Property Rights” (IPR) means all intellectual and industrial property rights of any kind whatsoever including patents, supplementary protection certificates, registered trademarks, registered designs, models, unregistered design rights, unregistered trademarks, rights to prevent passing off or unfair competition and copyright (whether in drawings, plans, specifications, designs and computer software or otherwise), database rights, topography rights, any rights in any invention, discovery or process, rights in formulae, methods, plans, inventions, discoveries, improvements, processes, performance methodologies, techniques, specifications, technical information, tests, results, reports, component lists, manuals and instructions, and applications for and rights to apply for any of the foregoing, in each case in Ireland and all other countries in the world and together with all renewals, extensions, continuations, divisions, reissues, re-examinations and substitutions;
“ISP” means Internet Service Provider;
“Secora Consulting Equipment” has the meaning given to it in clause 12.0
“Secora Consulting” means the Secora Consulting legal entity identified in the Proposal or, if no such entity is identified, Secora Consulting Limited registered with the CRO under number 624200;
“Personal Data” means personal data (as defined in the GDPR, to which Secora Consulting may (by or on behalf of the Client) be granted access, during the course of the provision of the Services;
“Scheduled Days Cost” has the meaning given to it in clause 5.3;
“Services” means the services to be performed by Secora Consulting in accordance with the Contract as described in the Proposal;
“Service Portion” means a phase, subproject, or similar portion of the total Services as described in the Proposal or otherwise agreed between the parties;
“Start Date” has the meaning given to it in clause 5.1;
“Proposal” has the meaning given to it in clause 1.1;
“Term” means the term in which the Services are provided by Secora Consulting; and
“Third Party Contractor” means a third party engaged by Secora Consulting to provide Services to the Client.
2.1 In the Contract (except where the context otherwise requires):
2.1.1 any words following the terms “including”, “include”, “for example” or any similar expression are by way of illustration and emphasis only and shall not limit the generality or extent of any other words or expressions; and 2.1.2 references to any legislation include any modification or re-enactment of that legislation and any subordinate legislation made (before or after the Contract) under that legislation.
3. SECORA CONSULTING’S DUTIES
3.1 Secora Consulting shall supply the Services to the Client in accordance with the Proposal in all material respects.
3.2 Secora Consulting shall perform the Services using reasonable skill and care and in accordance with Good Industry Practice.
3.3 Any timescales and/or completion dates provided by Secora Consulting are estimates only and time for provision or completion of the Services or any part of them shall not be of the essence.
3.4 Whilst Secora Consulting will use its reasonable endeavours to ensure that the same Consultant will continue to be involved throughout provision of the Services, it reserves the right to replace that Consultant.
3.5 If the Consultant is present on the Client’s premises, Secora Consulting shall use reasonable endeavours to ensure that the Consultant complies with such reasonable site rules and procedures as are notified to Secora Consulting by the Client from time to time.
3.6 Secora Consulting shall, unless otherwise stated in the Proposal or agreed in writing between the Client and Secora Consulting, provide any Deliverables to the Client within twenty-eight (28) days of completion of the Services.
3.7 Secora Consulting shall undertake background screening checks in accordance with BS7858 in respect of all its employees and consultants (with the exception of sales staff) to provide the Client with additional peace of mind in respect of the Services being provided.
3.8 Secora Consulting shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and shall notify the Client of any changes in any such event.
4. CLIENT DUTIES
4.1 The Client shall comply with the duties and responsibilities set out in the Terms.
4.2 The Client will be required to sign off on the Proposal or similar documents (the “Authorisation Form”) giving its consent to specifics of the Services including testing targets, dates and times. Secora Consulting shall not be required to schedule or provide any Services until the Client has accepted the Proposal and provided authorisation to the agreed scope.
4.3 Subject to clause 4.4, where the Client procures the Services from Secora Consulting on behalf of a third party or in connection with systems, equipment, data or premises owned or operated by a third party (in either case, the “Third Party Subject”), then any obligation of the Client under the Contract shall include an obligation for the Client to procure the compliance of the Third Party Subject. The Client shall indemnify, keep indemnified and hold harmless Secora Consulting, its Affiliates and its and their officers, employees, agents, contractors and sub-contractors in full and on demand from and against any and all third party claims, losses, damages, demands, costs, expenses, fees (including court and legal fees) and liabilities (in each case whether direct, indirect or consequential) of whatever nature suffered, incurred or sustained by Secora Consulting (or its Affiliates) as a result of any claim or action brought against Secora Consulting by the third party, save to the extent that any such losses, damages, demands, costs, expenses, fees or liabilities are incurred as a direct result of Secora Consulting’s breach of the Contract.
4.4 Clause 4.3 shall not apply to the extent that the Client obtains the written agreement of the Third Party Subject to Secora Consulting’s Standard Terms and Conditions for Testing Subjects, to be provided to the Client by Secora Consulting upon request.
4.5 The Client shall ensure that Terms and Conditions are understood and that any information specified in the Proposal is complete and accurate. Should any information be omitted when defining the scope of work for the Services quoted, the client acknowledges that any additional time required will be subject to the Fees and Payment Terms.
4.6 Upon acceptance and only within agreed time frames the Client shall make available to Secora Consulting any details, information or access relevant to the supply of the Services described in the Proposal; such as physical equipment or location to work from for Secora Consulting staff whilst delivering the Services.
5. COMMENCEMENT OF SERVICES AND CANCELLATION
5.1 The Services or, if applicable, each Service Portion will commence on the date set out in the Proposal unless otherwise agreed in writing between Secora Consulting and the Client (the “Start Date”).
5.2 The Client accepts and acknowledges that Secora Consulting allocates Consultants weeks or months in advance and would suffer a loss should the Services or any Service Portion be postponed or cancelled at short notice. As such, the Client agrees that it shall pay to Secora Consulting (as genuinely pre-estimated liquidated damages) an amount to reflect the losses which Secora Consulting will incur if such cancellation or rescheduling is requested within a set number of days of the Start Date (as specified in the relevant Services Module) (the “Cancellation Fee”).
5.3 A notice of intent to cancel or a notice to postpone testing will only be accepted in written format up to 14 days prior to any agreed commencement date. If cancellation or postponement is 14 days or sooner to the testing start date a fee of 50% will be imposed and an invoice will be issued. If cancellation or postponement is 24 hours or less to the testing start date, 100% of the cost of fee will be incurred and an invoice will be issued.
5.4 The Cancellation Fee shall be calculated as a percentage of the Fees that correspond to the days scheduled by Secora Consulting for provision of the Services or the relevant Service Portion (as applicable) (the “Scheduled Days Cost”). The relevant percentages and time periods are set out in the corresponding Services Module.
5.5 Charging of the Cancellation Fee is at Secora Consulting’s discretion. Secora Consulting will use reasonable commercial efforts to re-deploy Consultants to other projects to mitigate its losses resulting from cancellation or rescheduling. If Secora Consulting is able to successfully redeploy Consultants, then it can reduce the Cancellation Fee payable by the Client accordingly.
5.6 If the Client re-books the Services for another date, the Fees for the Services as re-booked will be payable in addition to any Cancellation Fee. If a test is postponed three times or more, charges of up to 50% will be incurred upon each postponement starting on the third postponement.
6. FEES AND PAYMENT
6.1 The Client will provide Secora Consulting with a valid purchase order following acceptance of the proposed Proposal for the amount stated therein. Secora Consulting may at its discretion invoice the Client for a percentage of the Fees. For the avoidance of doubt, the Client’s failure to issue a valid purchase order in accordance with this clause shall not prevent Secora Consulting from invoicing in respect of the Services at any point after acceptance of the Proposal.
6.2 Any mistakes, error or omissions by the Client or authorised representatives which affect the Service in terms of time or cost shall be the responsibility of the Client and as such any additional works may be subject to additional charges. Any such charges will be notified to the Client in advance.
6.3 In addition to the prices quoted within the Proposal, any out of pocket expenses incurred by Secora Consulting as part of any on-site work, will be charged as part of the invoice. Expenses include but are not limited to hotels, subsistence, parking and travel. Mileage and expenses will be benchmarked against civil service rates.
6.4 Should a resource be required to deliver Services outside normal working hours, overtime will be expensed as part of the invoice. All daily rates are quoted between the hours of 9:00 am and 5:59 pm or part thereof and the Client recognises that time and a half is incurred between 6:00 pm and 8:59 pm and double time is valid from 9:00 pm until 06:00 am the following morning. Double time is also in effect between 06:00 am Saturday morning until 06:00 am Monday morning.
6.5 Secora Consulting shall have no obligation to commence Services until a valid purchase order has been received. Failure to provide a valid purchase order as described in this clause ahead of the agreed Start Date may (at Secora Consulting’s sole discretion) be deemed to be a cancellation of the Services by the Client for the purposes of clause 5 above.
6.6 The Client shall pay each invoice (including invoices for Cancellation Fees) in full and cleared funds to the bank account nominated in writing by Secora Consulting within 30 days of the date of the invoice. All payments due under this Contract shall become due immediately upon termination of this Contract despite any other provision herein. All payments due under this Contract shall be made without any deduction by way of set off, counterclaim, discount or abatement or otherwise.
6.7 All prices quoted exclude VAT unless otherwise stated and VAT shall, where applicable, be payable in addition.
6.8 Payment of invoices issued by Secora Consulting shall not be conditional upon Secora Consulting’s use of any online payment processing system to the extent that such online payment processing system requires Secora Consulting to accept additional legal terms and conditions beyond those stated in the Contract.
7. CONFIDENTIALITY AND DATA PROTECTION
7.1 Confidentiality:
7.1.1 Each party will be entitled to disclose Confidential Information to its Affiliates and its and their employees, agents and sub-contractors, provided that the same are under a duty of confidentiality no less onerous than as set out in this Contract. Save as provided in the preceding sentence, neither party will disclose or permit its Affiliates, employees, agents and sub-contractors to disclose any Confidential Information entrusted to it by the other party provided always that this restriction shall not apply to information already in the receiving party’s possession, or which comes into the public domain other than by breach of this obligation by the receiving party or its Affiliates, employees, agents and sub-contractors, or which is disclosed to the receiving party by a third party lawfully entitled to disclose the same, or which is developed by the other party or its Affiliates, employees, agents or sub-contractors independently of the Confidential Information or which is required to be disclosed pursuant to any law or regulation or by the rules of any stock exchange or by a court of competent jurisdiction.
7.1.2 Nothing in this Contract will prevent or restrict Secora Consulting from providing services the same as or similar to the Services to other clients or using or sharing for any purpose any knowledge, experience or skills gained during or arising from the performance of the Services, subject to the obligations of confidence set out in clause 7.1.1. The Client acknowledges that Secora Consulting shall have no obligation to provide any information Secora Consulting has in its possession that is subject to an obligation of confidence to a third party even if that information would be helpful to the Client or assist in the provision of the Services.
7.1.3 Any data provided to the Client by or on behalf of Secora Consulting, any of Secora Consulting’s Affiliates and/or the Consultant remains the property of Secora Consulting and may not be quoted, published or otherwise made known to any person who is not an employee of the Client without Secora Consulting’s prior written consent.
7.1.4 Where the Services are being performed in connection with the assessment of the Client or its products against a standard or scheme operated by a third party accreditation or approval body, Secora Consulting may be required to allow such third party accreditation or approval body to inspect or supervise its performance of the Services. In such cases, Secora Consulting shall be permitted to allow such supervision and to disclose Confidential Information of the Client to such third party accreditation or approval body to the extent reasonably required, including providing copies of the Deliverables where applicable.
7.2 Data Protection:
7.2.1 The parties hereby acknowledge and agree that the Client is a controller and Secora Consulting (or the relevant Affiliate) is a processor (as each term is defined under the Data Protection Legislation) of any Personal Data disclosed by the Client to Secora Consulting (or its Affiliates) for the purposes of the Contract.
7.2.2 Secora Consulting (or the relevant Affiliate) shall use the Personal Data only for the purposes of fulfilling its obligations under the Contract and shall:
7.2.2.1 subject to clause 7.2.3, process the Personal Data only in accordance with documented instructions from the Client, including with regard to transfers of personal data to a third country or an international organisation;
7.2.2.2 subject to clause 7.2.4, obtain prior authorisation (such authorisation not to be unreasonably withheld or delayed) from the Client if the Personal Data may be processed by another person, and shall ensure such processing is governed by a contract or other legal act with obligations equivalent to those set out in the Contract. Secora Consulting shall remain liable to the Client for the performance by the processor of its obligations;
7.2.2.3 put in place the technical and organisational measures necessary to ensure that the Personal Data is protected against accidental or unlawful loss, destruction, damage, unauthorized access, use, modification, disclosure or other misuse. Secora Consulting can provide its Data Retention and Disposal policy to the Client upon request;
7.2.2.4 only transfer Personal Data to a third country or international organisation if a finding of adequacy has been made in respect of the relevant country or, in the absence of a finding of adequacy, enter into an EU Commission approved model clause controller to processor data transfer agreement with the Client, and/or procure that, where relevant, any Affiliate enters into such agreement; and
7.2.2.5 subject to clause 7.2.5, Secora Consulting shall assist the Client to comply with its obligations set out in the Data Protection Legislation where the Data Protection Legislation requires Secora Consulting (as processor) to do so, taking into account the nature of processing and the information available to the Secora Consulting. In particular, Secora Consulting shall:
7.2.2.5.1 notify the Client if, in Secora Consulting’s opinion, an instruction of the Client infringes the Data Protection Legislation;
7.2.2.5.2 provide information requested by the Client to enable it to respond to requests to exercise rights of data subjects made pursuant to the Data Protection Legislation as soon as reasonably practicable following receipt of a written request from the Client; and
7.2.2.5.3 notify the Client within 2 Business Days of Secora Consulting becoming aware of a breach by Secora Consulting or any of its Affiliates of the Data Protection Legislation. Secora Consulting will investigate any such breach and provide a report to the Client setting out the results of such investigation as soon as reasonably practicable.
7.2.3 The Client accepts and acknowledges that, in order to deliver the Services effectively and/or to meet the requirements of the Contract, Secora Consulting may, from time to time, need to transfer Personal Data to a third country or international organisation. Unless it has informed Secora Consulting otherwise in writing, the Client therefore confirms that it consents to such transfer and that this clause 7.2.3 constitutes written instructions from the Client for the purposes of clause 7.2.2.1.
7.2.4 The Client acknowledges and accepts that Third Party Contractors providing Consultants working in a staff augmentation capacity may provide part of certain Services and the Client consents to Personal Data being processed by such Third Party Contractor. Secora Consulting shall ensure that any Third Party Contractors, acting as Secora Consulting’s sub-processor, is under a contractual obligation to process the Personal Data in accordance with the Data Protection Legislation, and Secora Consulting will remain liable to the Client for the acts and omissions of such Third Party Contractors as if such acts and omissions were those of Secora Consulting. The client therefore confirms that it consents to such use of the Third Party Contractor and that this clause 7.2.4 constitutes authorisation from the Client for the purposes of clause 7.2.2.3.
7.2.5 Other than as required by the Data Protection Legislation, Secora Consulting will not be required under clause 7.2.2.5 to assist with the Client’s own security, technology and related processes, in respect of which Secora Consulting has no insight. Secora Consulting shall provide assistance pursuant to clause 7.2.2.5 free of charge except to the extent such assistance, in the reasonable opinion of Secora Consulting, would require disproportionate effort or cost in which case the parties shall agree in advance any fees payable by the Client for such assistance
7.2.6 Secora Consulting may permit the Client to conduct audits as required pursuant to the Data Protection Legislation. Any audit shall be conducted no more frequently than once a year (unless such audit is being carried out as a result of an actual or suspected breach by Secora Consulting of the Data Protection Legislation in which case there shall be no limit on the number of audits the Client is entitled to conduct) requiring no more than 2 (two) Business Days’ input by Secora Consulting and shall be carried out on no less than 10 (ten) Business Days’ notice and during Secora Consulting’s usual business hours.
7.2.7 The Client warrants to Secora Consulting (and its Affiliates) that in order to disclose any Personal Data to Secora Consulting (and its Affiliates) and to otherwise allow Secora Consulting (and its Affiliates) to carry out its obligations under and incidental to the Contract, the Client:
7.2.7.1 has all requisite authority and has obtained and will maintain (including by way of incorporating into all materials and processes through which Personal Data is captured) all necessary consents required, or otherwise has a valid lawful basis for such disclosure under the Data Protection Legislation;
7.2.7.2 has fully complied with all of its obligations under the Data Protection Legislation; and
7.2.7.3 shall not do or omit to do anything that would place Secora Consulting in breach of the Data Protection Legislation, the Investigatory Powers Act 2016 all relevant Computer Misuse Legislation or any other relevant laws.
7.2.8 Unless otherwise specified in the relevant Service Module or as otherwise required pursuant to the Data Protection Legislation or other applicable laws, Secora Consulting shall retain the Personal Data for the duration of the Services and for 6 (six) months following completion of the Services. If Secora Consulting is unable, using reasonable endeavours, to delete or destroy any of the Personal Data (including, for example, backup copies of the Personal Data) it shall ensure that such Personal Data is encrypted or protected by security measures so that it is not readily available or accessible by Secora Consulting.
7.2.9 The Client shall immediately notify Secora Consulting if any of the consents is revoked or changed in any way which impacts or may impact on Secora Consulting’s rights or obligations under or in connection with the Contract or in any other scenario whereby the Client may no longer lawfully share the Personal Data with Secora Consulting (and its Affiliates) for the purpose of its provision of the Services under this Contract.
7.2.10 The Client shall, at all times during and after the termination or expiry of the Contract, indemnify, keep indemnified and hold harmless Secora Consulting, its Affiliates and their respective officers, employees, agents, contractors and sub-contractors in full and on demand from and against any and all claims, fines, losses, damages, demands, costs, expenses, fees (including, but not limited to, court and legal fees) and liabilities (in each case whether direct, indirect or consequential) of whatever nature suffered, incurred or sustained by Secora Consulting or its Affiliates as a result of any breach by the Client of its obligations under this clause 7.
8. COMPLAINTS
Our Complaints Policy
We are committed to providing a high-quality service to all our clients and in this regard we operate a complaints handling procedure in the event that you might experience any difficulties with our service. When something goes wrong, we need you to tell us about it. This will help us to improve our standards.
Our complaints procedure
If you have a complaint, please contact any of the Directors or Senior Management of Secora Consulting, in writing. If we have to change any of the responsibilities or the timescales set out below we will let you know and explain why.
What will happen next?
- We will send you a letter acknowledging receipt of your complaint within seven working days of receiving it, enclosing a copy of this procedure and asking you to confirm or explain any details. The person responsible for overseeing your matter will be the person appointed to deal with your complaint unless otherwise advised by us.
- We will record your complaint in our central register and investigate your complaint by examining the relevant file.
- If appropriate, we will then invite you to a meeting to discuss and hopefully resolve your complaint. We would hope to be in a position to meet with you in this way no longer than 21 days after first receiving your complaint. If you would prefer not to meet, or if we cannot arrange this within an agreeable timescale, we will write to you setting out our views on the situation and any redress that we feel to be appropriate.
- In the event of a meeting having taken place, then within seven days thereof, we will write to you to confirm what took place and any solutions agreed with you.
- At this stage, if you are still not satisfied, you should contact us again and we will arrange for another Associate, or someone unconnected with the matter at the firm, to carry out a final review of the decision. We will write to you within 14 days of receiving your request for a final review, confirming our final position on your complaint and explaining our reasons. In the event that you are not satisfied with our final position then we shall advise you of the options open to you if you wish to take the matter further.
9. EMAIL COMMUNICATIONS AND THE INTERNET
9.1 Secora Consulting uses electronic communications as defined in the Electronic Commerce Act, 2000. Each party will be responsible with regards to the security and privacy of the electronic communications used. If you do choose to communicate with us via electronic communications or request that we communicate with you via electronic communications we will assume that you wish communications between yourselves and ourselves to be conducted via electronic communication. Upon request by you we will be happy to consider implementing an electronic communication security system which you operate or such other system as may be agreed.
10. CONFLICT OF INTEREST
10.1 We will consult you should we become aware of a conflict of interest or a significant risk of a conflict of interest. If we become aware of such a situation which would prevent us from continuing to act for you we will inform you promptly and assist you in finding new service providers and provide an effective transfer to said new service providers. You agree to pay our fees and expenses up to the date of such transfer.
11. INTELLECTUAL PROPERTY RIGHTS
11.1 Subject to alternative terms set out in the Proposal:
11.1.1 nothing in the Contract will operate to transfer to the Client or to grant to the Client any licence or other right to use any of Secora Consulting’s (or its Affiliates) Intellectual Property Rights except to the extent necessary for the Client to use the Services for the purpose for which they are supplied;
11.1.2 the Intellectual Property Rights in any Deliverables are owned and shall remain owned by Secora Consulting, but the Client is hereby granted a non-exclusive, non-transferable licence to copy and use such Deliverables for its own internal purposes only. The Deliverables may only be disclosed to third parties with Secora Consulting’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned); and
11.1.3 any Intellectual Property Rights which come into existence as a result of the performance by Secora Consulting (or its Affiliates) of the Services will be the property of Secora Consulting (or as appropriate the relevant Affiliate).
12. SECORA CONSULTING EQUIPMENT
12.1 Secora Consulting (or its Affiliates) may temporarily provide to the Client hardware or software to assist in delivery or performance of certain Services (the “Secora Consulting Equipment”). In such cases, this clause 12 shall apply.
12.2 Secora Consulting grants to the Client a non-exclusive, non-transferable licence for the Term to use the Secora Consulting Equipment, solely in relation to the Services. The Secora Consulting Equipment shall at all times be and remain Secora Consulting’s exclusive property, and shall be held by the Client in safe custody at Client’s own risk and maintained and kept in good condition until returned to Secora Consulting, and shall not be disposed of or used other than in accordance with Secora Consulting’s written instructions or authorisation. The Client shall be responsible for obtaining and maintaining in full force, until Secora Consulting acknowledges in writing safe receipt of the Secora Consulting Equipment back into its possession, adequate insurance cover in respect of any and all loss of and/or damage to the Secora Consulting Equipment, such insurance to be, as a minimum, to the full replacement value of the Secora Consulting Equipment as notified by Secora Consulting (the “Equipment Value”). Secora Consulting and its agents and employees shall be entitled at any time on reasonable notice to enter any premises where the Secora Consulting Equipment is or may be stored in order to inspect it or recover the Secora Consulting Equipment. Client acknowledges and agrees that upon expiration or termination of this Contract, Client shall be responsible for returning the Secora Consulting Equipment to Secora Consulting at the Client’s expense within 14 days of the Services ceasing (the “Return Period”). If Secora Consulting does not receive the Secora Consulting Equipment:
12.2.1 within the Return Period;
12.2.2 in good cosmetic condition;
12.2.3 in good working order as determined by Secora Consulting in its reasonable opinion, taking into consideration fair wear and tear; and
12.2.4 with any warranty sticker still intact and untampered with;
12.2.4.1 Client shall be liable to pay to Secora Consulting a sum equal to the Equipment Value.
12.2.3 Risk in the Secora Consulting Equipment shall not pass to Secora Consulting until the Client has received written signed acknowledgement of receipt of the Secora Consulting Equipment.
12.2.4 A return-to-base warranty is provided for all Secora Consulting Equipment for the duration of the term that Secora Consulting is providing the Services. The return to base is at the Client’s cost and return to Client is at Secora Consulting’s cost.
13. LIABILITY
13.1 Nothing in this Contract excludes or limits the liability of Secora Consulting (or its Affiliates) for:
13.1.1 fraud or fraudulent misrepresentation;
13.1.2 death or personal injury caused by Secora Consulting’s (or its employees’, agents’ or sub-contractors’) negligence; or
13.1.3 any other liability that cannot be limited or excluded at law.
13.2 Subject to clause 13.1, Secora Consulting (and its Affiliates) shall not be liable for any loss, claims, demands, actions, costs, expenses or liabilities arising from or in connection with any materials and/or instructions supplied by the Client which are incomplete, incorrect, inaccurate, illegible or defective in any other way including failure to deliver or delay in delivering the Services or any other breach of the Contract by Secora Consulting.
13.3 Subject to clause 13.1, Secora Consulting’s maximum aggregate liability arising out of or in connection with the Contract, whether in contract, tort, misrepresentation, under statute or otherwise, howsoever caused including by negligence and also including under any indemnity, shall be limited to an amount no greater than the total fee payable by the customer for the service that is subject to the claim.
13.4 Subject to clause 13.1, Secora Consulting shall not be liable to the Client for any:
13.4.1 indirect, consequential and/or special loss or damage;
13.4.2 loss of profit and/or revenue (direct or indirect); or
13.4.3 costs of recovering or reconstituting data;
13.4.3.4 arising out of or in connection with the Contract and/or the provision of the Services, whether in contract, tort, misrepresentation, under statute or otherwise, howsoever caused including by negligence.
13.5 Subject to Secora Consulting’s obligation to perform the Services with reasonable skill and care, and in accordance with the terms of the Contract, the Client accepts and acknowledges that all Services performed by Secora Consulting reflect the state of the Client’s systems, software, data, processes, infrastructure etc. (as relevant to the Services concerned) as at the date that the Services are provided, and that the nature of the Services means that any results provided may not be exhaustive and expressly disclaims and excludes any implied warranties, conditions and/or representations to the maximum extent permissible under applicable law. The Client further accepts and acknowledges that the Services reflect the level of information reasonably available to Secora Consulting when performing the Services. As such, Secora Consulting does not warrant or guarantee the accuracy of the Services beyond the date that they were performed, nor does Secora Consulting warrant or guarantee that any findings and conclusions contained in the Deliverables are exhaustive.
13.6 The Client acknowledges and agrees upon accepting the Proposal that any Services provided; where these have been carried out within the scope of the Contract; are done so with permission. No legal proceedings can be taken against Secora Consulting, its employees or third parties under any acts such as Offences Relating to Information Systems Act (2017) or relevant acts relating to any Service provided, on the basis of express permission and authorisation to carry out such Services.
14. TERMINATION
14.1 Secora Consulting reserves the right to immediately suspend the Services or withdraw from the Services without notice if, in its opinion (acting reasonably), information required for satisfactory completion of the Services and requested by Secora Consulting in writing is either not provided or is inaccurate or inadequate. Without prejudice to clause 6, the Client shall be liable for any Fees and expenses incurred by Secora Consulting up to and including the date of withdrawal.
14.2 Either party may at any time terminate the Contract by giving written notice to the other if:
14.2.1 the other commits any material breach of the Contract and (if capable of remedy) fails to remedy the breach within thirty (30) days after being required by written notice from the other party to do so; or
14.2.2 the other party stops trading or is unable to pay its debts and/or an Insolvency Situation arises.
14.3 Secora Consulting may terminate the Contract by giving written notice to the Client if the Client fails to pay any amount due under the Contract on the due date for payment and remains in default not less than ten days after being notified in writing to make such payment.
14.4 Except to the extent Personal Data will be retained by Secora Consulting beyond termination of the Contract in accordance with clause 7.2.9, Secora Consulting (or its Affiliates) shall, upon termination of the Contract, cease processing (as defined under the Data Protection Legislation) and shall delete or return, at the Client’s cost, any Personal Data that has been disclosed to it by or on behalf of the Client in connection with the provision of the Services under this Contract.
15. NON-SOLICITATION
15.1 The Client shall not, during the course of the Contract or for a period of 12 months from the date of termination, solicit or offer any inducement to work for the Client to the Consultant or any employee of Secora Consulting (or any of Secora Consulting’s Affiliates) with whom the Client had contact during the performance of the Services.
16. ANTI-BRIBERY
16.1 Each party will comply with all applicable Criminal Justice Corruption Offences Act 2018 and neither party will offer, promise, give, request, agree to receive, receive or accept a bribe or financial or other advantage or commit any corrupt act.
17. THIRD PARTY RIGHTS
17.1 The parties do not intend that any term of the Contract will be enforceable by any person who is not a party to the Contract.
18. FORCE MAJEURE
18.1 Secora Consulting will not be in breach of the Contract or otherwise liable to the Client for any failure to perform or delay in performing its obligations under the Contract and it reserves the right to defer the date of provision of the Services if it is prevented from or delayed in performing its obligations under the Contract due to circumstances beyond its reasonable control including, without limitation, any act of God; governmental actions; war or national emergency; acts of threat of terrorism; protests; riot; civil commotion; fire; explosion; flood; epidemic; pandemic; lock-outs, strikes or other labour disputes (whether or not relating to either party’s workforce); restraints or delays affecting carriers; inability or delay in obtaining supplies of adequate or suitable materials; inability to access premises; breakdown or failure of technology or machinery; changes in law which result in the provision of Services as set out in the Contract being or becoming illegal; theft or malicious damage to Secora Consulting’s property (whether physical or intangible); and/or failure of a utility service or transport or telecommunications network provided that, if the event in question continues for a continuous period in excess of thirty (30) days, either party shall be entitled to terminate the Contract immediately by giving notice in writing to the other party.
19. SEVERABILITY
19.1 If any provision of these Terms is held to be invalid or unenforceable, such provision will be severed (but only to the extent necessary to make such provisions valid and enforceable) from these Terms and shall not affect the validity, enforceability of the other provisions of these Terms.
20. GENERAL
20.1 All other terms and conditions express or implied by statute or otherwise, are excluded to the fullest extent permitted by law. Subject to clause 13.1, neither party has entered into the Contract in reliance upon, and it will have no remedy in respect of, any misrepresentation, representation or statement (whether made by the other party or any other person) which is not expressly set out in the Contract and the only remedies available for any misrepresentation or breach of any representation or statement which was made prior to entry into the Contract and which is expressly set out in the Contract will be for breach of contract.
20.2 If any sum payable under the Contract is not paid on or before the due date for payment the non-defaulting party will be entitled to charge the defaulting party interest on that sum at 4% per annum above the base lending rate from time to time of Central bank of Ireland from the due date until the date of payment (whether before or after judgment), such interest to accrue on a daily basis.
20.3 Any notice sent under the Contract shall be in writing addressed to the other party at its registered office or principal place of business or such other address as may be notified by each party to the other time to time.
20.4 A delay in exercising or failure to exercise a right or remedy under or in connection with the Contract will not constitute a waiver of, or prevent or restrict future exercise of, that or any other right or remedy, nor will the single or partial exercise of a right or remedy prevent or restrict the further exercise of that or any other right or remedy. A waiver of any right, remedy, breach or default will only be valid if it is in writing and signed by the party giving it and only in the circumstances and for the purpose for which it was given and will not constitute a waiver of any other right, remedy, breach or default.
20.5 Save where Secora Consulting or the Client merges, is acquired or has substantially all of its assets acquired by a separate legal entity and the new entity or acquirer agrees to assume all of their obligations and liabilities under the Contract, neither party may assign, transfer, charge or deal in any other manner with any of its rights under the Contract without having obtained the prior written consent of the other party.
20.6 Notwithstanding clause 20.5, Secora Consulting shall be entitled to sub-contract any or all of the Services to any of its Affiliates without the prior written consent of the Client provided that Secora Consulting remains liable for the acts or omissions of its Affiliates as if they were Secora Consulting’s own acts or omissions.
20.7 A reference to a statute or statutory provision is a reference to it as amended, extended, re-enacted or replaced from time to time.
20.8 Calls between the Client (or any of its employees, agents, subcontractors) and Secora Consulting (or any of its Affiliates) may be recorded for quality and training purposes.
20.9 Secora Consulting’s obligation to perform the Services is dependent on the assumptions set out in the Proposal being true and on the Client performing all obligations and fulfilling all of its obligations and responsibilities set out in the Proposal.
20.10 Secora Consulting may discuss ideas with the Client or show the Client draft reports for comment by the Client. Secora Consulting does this on the basis that the Client will not rely on and we will have no liability in respect of such discussions or drafts unless and until their content is finalised.
20.11 Any samples, descriptions, marketing, sample reports or illustrations provided by Secora Consulting via brochures, advertising materials or electronically published content are for the sole purpose of giving an approximate idea of the Services described in them. They shall not have any contractual force.
20.12 Any pre-scheduled test window suggested as part of the Proposal will only be confirmed and allocated upon acceptance of the Proposal. Secora Consulting reserves the right to re-allocate any suggested test windows as required and will do so on a case by case basis.
21. GOVERNING LAW AND JURISDICTION
21.1 The Contract and all aspects of our performance of work for you are governed by the laws of Ireland. You irrevocably submit to the exclusive jurisdiction of the courts of Ireland.