The following capitalized terms, when used in the Agreement, shall have the meanings ascribed to them in this Section 1:
1.1. “Product” shall mean the software program to be developed by Effco Software Limited pursuant to the Agreement in accordance with the Specifications, together with user manuals, other documentation and any other ancillary materials to be developed by Effco Software Limited pursuant hereto.
1.2. “Specifications” shall mean the specifications for the Product as directed by Client, together with any additional specifications or modifications to the specifications that may be agreed to in writing by the parties during the term of the Agreement.
1.3. “Intellectual Property” shall mean all intellectual property other than the Technology owned by Effco Software Limited prior to the Effective Date or licensed to Effco Software Limited by a third party, and used in the development of the Product.
Other capitalized terms shall have the meanings ascribed to them in the body of the Agreement.
2. TERMS AND CONDITIONS
2.1. DEVELOPMENT OF THE PRODUCT: Client hereby retains Effco Software Limited to design and develop, and Effco Software Limited hereby agrees to design and develop the Product in accordance with
- The project outline set forth on the Scope of Work and/or
- The Product Specifications developed jointly by Client and Effco Software Limited
The parties shall work together in a joint effort to accomplish the tasks and objectives set forth in the Product Specifications. Effco Software Limited shall be responsible for delivering and performing only those professional services specifically identified in the Product Specifications. Any modifications to the Product Specifications shall be pursuant to the Change Order process set forth below.
2.2. CHANGE ORDERS: In the event Client desires to make any modifications to the Product Specifications or a deliverable, Client must provide a detailed change order in writing. This may be provided in the form of email, certified letter, or via technologies and/or tools provided by Effco Software Limited. In the event of a conflict between the terms of the Agreement and a Change Order, the terms of the Agreement shall govern.
2.3. SUPPORT AND MAINTENANCE: Any support and maintenance services, updates, versions, or new releases shall be contracted under a separate agreement between Effco Software Limited and Client. Maintenance and support rights or obligations for any third party products or equipment that are used in the Product and are available through the respective vendor(s)/manufacture(s) of such content and equipment shall be assigned by Effco Software Limited to Client. Effco Software Limited shall not use any intellectual property of any third-party in the Product without Client’s written consent.
2.4. CLIENT RESPONSIBILITIES: Client agrees to perform all tasks assigned to Client as set forth in the Agreement, the Product Specifications, or a Change Order, and to provide all assistance and cooperation to Effco Software Limited in order to complete timely and efficiently the Product. Effco Software Limited shall not be deemed in breach of the Agreement, the Product Specifications, a Change Order, or any milestone in the event Effco Software Limited’s failure to meet its responsibilities and time schedules is caused by Client’s failure to meet (or delay in) its responsibilities and time schedules set forth in the System Specifications, a Change Order, or the Agreement. In the event of any such failure or delay by Client:
- All of Effco Software Limited’s time frames, milestones, and/or deadlines shall be extended by the product of the number of days of Client’s failure multiplied by two (2)
- Client shall continue to make timely payments to Effco Software Limited as set forth in the Agreement, the Product Specifications, and any Change Order(s) as if all time frames, schedules, or deadlines had been completed by Effco Software Limited.
Client shall be responsible for making, at its own expense, any changes or additions to Client’s current systems, software, and hardware that may be required to support operation of the Product. Unless otherwise contracted with Effco Software Limited or reflected in a Change Order, Client shall be responsible for initially populating and then maintaining any databases on the Product as well as providing all content for the Product. With the execution of a Change Order specifically asking Effco Software Limited to assess the Client’s systems, software and hardware from time to time, Effco Software Limited may agree to perform this function at normal Effco Software Limited rates.
2.5. ASSIGNMENT OF PROJECT: Effco Software Limited reserves the right, and Client hereby agrees, to assign subcontractors to this project to insure that the terms of the Agreement are met as well as on-time completion.
2.6. MARKETING: Client hereby grants Effco Software Limited the right to use the name and service marks of Client in its marketing materials or other oral, electronic, or written promotions, which shall include naming Client as a client of Effco Software Limited and a brief scope of services provided. Any use of Effco Software Limited logos or links on Client’s Product must be approved in writing by Client. Either party may elect to issue a press release related to the Agreement. In doing so, any release shall be approved by the other party and such approval shall not be unreasonably withheld.
3. FEES, EXPENSES, AND PAYMENT
3.1. EXPENSES: Client shall reimburse Effco Software Limited for reasonable out-of-pocket travel expenses (collectively, “Expenses”), including transportation, lodging, mileage, and meals incurred in rendering Effco Software Limited’s professional services. Effco Software Limited shall obtain Client’s prior written authorization before incurring any individual expense. All Expenses not paid directly by Client shall be paid within fourteen (14) days of receipt of Effco Software Limited’s invoice. All Expense reimbursements shall be made at Effco Software Limited’s direct out-of-pocket costs, without any markup for overhead, administrative costs, or otherwise.
3.2. FEES: Client agrees to pay Effco Software Limited for the completion of the Scope of Work in accordance with the schedule.
3.3. TAXES: Client shall pay, reimburse, and/or hold Effco Software Limited harmless for all sales, use, transfer, privilege, tariffs, excise, and all other taxes and all duties, whether international, national or local, however designated except income taxes, which are levied or imposed by reason of the performance of the professional services under the Agreement or by use of the Product, except income taxes.
3.4. OTHER FEES: Unless otherwise provided in the Agreement or in a Change Order, payment for all other services rendered by Effco Software Limited shall be contracted under a separate agreement between Effco Software Limited and Client.
3.5. FORM OF PAYMENT: All payments made to Effco Software Limited under the Agreement shall be in Euro currency in the form of company check, bank or PayPal transfer, credit/debit card payment.
3.6. PAYMENT OF INVOICES: All invoices shall be paid by Client within fourteen (14) days of receipt.
Payments not made within such time period shall be subject to late charges equal to the lesser of:
- One and one-half percent (1.5%) per month of the overdue amount or
- The maximum amount permitted under applicable law. Effco Software Limited may suspend all services on seven (7) days written notice until the amounts outstanding are paid in full.
4. INTELLECTUAL PROPERTY RIGHTS AND LICENSE
4.1. PRODUCT: All materials, including, but not limited to, software, programs, source code and object code, comments to the source or object code, specifications, documents, abstracts and summaries thereof (collectively, the “Products”) developed by Effco Software Limited in connection with the provision of the Services to Client, or jointly by Client and Effco Software Limited, or by Effco Software Limited pursuant to specifications or instructions provided by Client, shall belong exclusively to Client. Effco Software Limited acknowledges that the Products shall be deemed “works made for hire” by Effco Software Limited for Client, and, therefore, shall be the exclusive property of Client. To the extent the Products are not deemed “works made for hire” under applicable law, Effco Software Limited hereby irrevocably assigns and transfers to Client all right, title and interest in and to the Products, including, without limitation, all patent and copyright interests, and agrees to execute all documents reasonably requested by Client for the purpose of applying for and obtaining domestic and foreign patent and copyright registrations.
4.2. PRE-EXISTING INTELLECTUAL PROPERTY: Notwithstanding any provision of the Agreement to the contrary, any routines, methodologies, processes, libraries, tools or technologies created, adapted or used by Effco Software Limited in its business generally, including all associated intellectual property rights (collectively, the “Development Tools”), shall be and remain the sole property of Effco Software Limited, and Customer shall have no interest in or claim to the Development Tools, except as necessary to exercise its rights in the Products. In addition, notwithstanding any provision of the Agreement to the contrary, Effco Software Limited shall be free to use any ideas, concepts, or know-how developed or acquired by Effco Software Limited during the performance of the Agreement to the extent obtained and retained by Effco Software Limited’s personnel as impression and general learning. Subject to and limited by Client’s intellectual property rights described in Section 4.1 above, nothing in the Agreement shall be construed to preclude Effco Software Limited from using the Development Tools for use with third parties for the benefit of Effco Software Limited.
4.3. THIRD PARTY LICSENSES: In addition to any other fees set forth in the Agreement, Client shall be required to purchase any applicable third party licenses for any third party products that are necessary for Effco Software Limited to design and develop the Product. Such third party products may include, but are not limited to: server-side applications, clip art, “back-end” applications, music, stock images, or any other copyrighted work which Effco Software Limited deems necessary to purchase on behalf of Client to design and develop the Product.
5. TERM AND TERMINATION
5.1. TERM: The Agreement shall be effective as of the Effective Date and shall continue in effect until complete payment of the Development Price or until earlier terminated as provided in the Agreement or until the contracted services have been completed.
5.2. TERMINATION FOR CAUSE: The Agreement may be terminated by either party upon written notice to the other, if the other party breaches any material obligation provided hereunder and the breaching party fails to cure such breach within thirty (30) days of receipt of the notice.
5.3. EFFECT OF TERMINATION: Client shall pay Effco Software Limited for all services rendered and work performed up to the effective date of termination for any reason subject to Client’s rights to only pay fair value if Client terminates for cause. Effco Software Limited shall provide Client with an invoice for the foregoing fees within thirty (30) days of the effective date of the termination. Client shall pay the invoice within fourteen (14) days of receipt.
5.4. RETURN OF PROPRIETARY OR CONFIDENTIAL INFORMATION: Within ten (10) days after the termination or expiration of the Agreement, each party shall return to the other all Proprietary or Confidential Information of the other party (and any copies thereof) in the party’s possession or, with the approval of the party, destroy all such Proprietary or Confidential Information. “Proprietary or Confidential Information” shall include, but is not limited to, written or oral contracts, trade secrets, know- how, business methods, business policies, memoranda, reports, records, computer retained information, notes, or financial information. Proprietary or Confidential Information shall not include any information which:
- Is or becomes generally known to the public by any means other than a breach of the obligations of the receiving party,
- Was previously known to the receiving party or rightly received by the receiving party from a third party,
- Is independently developed by the receiving party,
- Is subject to disclosure under court order or other lawful process.
6. LIMITED WARRANTIES
6.1. PRODUCT: Effco Software Limited warrants that for a period of ninety (90) days from launch of the Product, the Product will operate in accordance with all the material terms of the Product Specifications. All warranty claims not made in writing within such period shall be deemed waived. As the sole and exclusive remedy of Client for breach of the foregoing warranty, Effco Software Limited shall, at its option, either correct the nonconformity or refund to Client the dollar amount attributable to the number of actual hours Effco Software Limited spent developing the defective portion of the Product. Effco Software Limited shall not be liable for failures caused by third party hardware or software (including Client’s own systems), misuse of the Product, or the negligence or wilful misconduct of Client.
6.2. PERFORMANCE OF PROFESSIONAL SERVICES: Effco Software Limited warrants that the professional services will be performed in a workmanlike and professional manner by appropriately qualified personnel.
6.3. Notwithstanding the above, Client’s exclusive remedies for all damages, losses, and causes of actions whether in contract, tort including negligence or otherwise, shall not exceed the aggregate amount which Client paid during the term of the Agreement.
7. LIMITATION OF LIABILITY
Under no circumstances shall Effco Software Limited, its contracted providers, officers, agents, or anyone else involved in creating, producing, or distributing Client’s Product be liable for any direct, indirect, incidental, special or consequential damages that result from the use of or inability to use the Product; or that results from mistakes, omissions, interruptions, deletion of files, errors, defects, delays in operation, or transmission or any failure of performance, whether or not limited to acts of God, communication failure, theft, destruction or unauthorized access to Client’s records, programs or services. Client hereby acknowledges that this paragraph shall apply to all content on said Hosting Service. THE TOTAL LIABILITY FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE) TO THE OTHER SHALL NOT EXCEED THE DEVELOPMENT PRICE. THIS LIMITATION OF LIABILITY SHALL APPLY EVEN IF THE EXPRESS WARRANTIES SET FORTH ABOVE FAIL IN THEIR ESSENTIAL PURPOSE.
8. THIRD PARTY DISCLAIMER
EFFCO SOFTWARE LIMITED MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH REGARD TO ANY THIRD PARTY PRODUCTS, THIRD PARTY CONTENT OR ANY SOFTWARE, EQUIPMENT, OR HARDWARE OBTAINED FROM THIRD PARTIES.
9. INDEMNIFICATION OBLIGATIONS
9.1. CLIENT INDEMNITY: Client agrees that it shall defend, indemnify, save and hold Effco Software Limited harmless from any and all demands, liabilities, losses, costs and claims, including reasonable solicitors’ fees, (collectively “Liabilities”) asserted against Effco Software Limited, its contracted providers, agents, Clients, servants, officers and employees, that may arise or result from any service provided or performed or agreed to the performance of any product sold by Client, its agents, employees or assigns. Client agrees to defend, indemnify and hold harmless Effco Software Limited against Liabilities arising out of:
- Any injury to any person or property caused by any products sold or otherwise distributed in connection with the Product
- Any material supplied by Client infringing or allegedly infringing on the proprietary rights of a third party; or
- Copyright infringement and/or litigation regarding content-related disputes.
9.2. EFFCO SOFTWARE LIMITED INDEMNITY: Effco Software Limited shall indemnify and hold harmless Client (and its subsidiaries, affiliates, officers, agents, co-branders or other partners, and employees) from any and all claims, damages, liabilities, costs, and expenses (including, but not limited to, reasonable solicitors’ fees and all related costs and expenses) incurred by Client as a result of any claim, judgment, or adjudication against Client arising from a claim that Client’s use of the Effco Software Limited Content, as permitted under the Agreement, infringes Intellectual Property rights of a third party or arising from a claim which results from Effco Software Limited’s breach of the warranties and agreements contained in the Agreement.
To qualify for such defence and payment, Client must give Effco Software Limited prompt written notice of a claim; and allow Effco Software Limited to control, and fully cooperate with Effco Software Limited in, the defence and all related negotiations.
Effco Software Limited shall have no obligation to indemnify Client under this Section to the extent the infringement arises from:
- The Client Content
- Specifications provided by Client or its agents
- Derivative works of the Product created by Client
- Use of the Product in combination with non-Effco Software Limited approved third party products, including hardware and software
- Modifications or maintenance of the Product by a party other than Effco Software Limited
- Misuse of the Product, and failure of Client to implement any improvement or updates to the Product, if the infringement claim would have been avoided by the use of the improvement or updates.
The parties agree to hold each other’s Proprietary or Confidential Information in strict confidence. The parties agree not to make each other’s Proprietary or Confidential Information available in any form to any third party or to use each other’s Proprietary or Confidential Information for any purpose other than as specified in the Agreement. Each party’s Proprietary or Confidential Information shall remain the sole and exclusive property of that party. The parties agree that in the event of use or disclosure by the other party other than as specifically provided for in the Agreement, the non-disclosing party may be entitled to equitable relief. Notwithstanding termination or expiration of the Agreement, Effco Software Limited and Client acknowledge and agree that their obligations of confidentiality with respect to Proprietary or Confidential Information shall continue in effect for a total period of three (3) years from the Effective Date.
11. FORCE MAJEURE
Except with regard to payment obligations, either party shall be excused from delays in performing or from failing to perform its obligations under the Agreement to the extent the delays or failures result from causes beyond the reasonable control of the party, including, but not limited to: default of subcontractors or suppliers; failures or default of third party software, vendors, or products; acts of God or of the public enemy; domestic or foreign governmental actions; strikes; communications, network/internet connection, or utility interruption or failure; fire; flood; epidemic; and freight embargoes.
12. CHOICE OF LAW; VENUE; LIMITATION OF ACTIONS
The Agreement shall be governed and construed in accordance with Irish Law and will be subject to the jurisdiction of the Irish Courts for any dispute arising out of the Agreement. No action by Effco Software Limited or Client arising under the Agreement may be brought at any time more than two (2) years after the facts occurred upon which the cause of action arose.
13. INDEPENDENT CONTRACTOR STATUS
The relationship of Effco Software Limited to Client will be that of an independent contractor, and neither Effco Software Limited nor any employee of Effco Software Limited will be deemed to be an agent or employee of Client. It is expressly understood that this undertaking is not a joint venture.
Any written notice or demand required by the Agreement shall be sent by registered or certified mail (return receipt requested), personal delivery, overnight commercial carrier, or other guaranteed delivery to the other party at the address set forth herein. The notice shall be effective (a) as of the date of delivery if the notice is sent by personal delivery, overnight commercial courier or other guaranteed delivery, and (b) as of five (5) days after the date of posting if the notice is transmitted by registered or certified mail.
15. ENTIRE AGREEMENT
The Agreement and all exhibits, schedules, and Change Order(s) set forth the entire agreement between the parties with regard to the subject matter hereof. No other agreements, representations, or warranties have been made by either party to the other with respect to the subject matter of the Agreement, except as referenced herein. The Agreement may be amended only by a written agreement signed by both parties.
Client and Effco Software Limited agree to make a good-faith effort to resolve any disagreement arising out of, or in connection with, the Agreement through negotiation. Should the parties fail to resolve any such disagreement within ten (10) days, any controversy or claim arising out of or relating to the Agreement, including, without limitation, the interpretation or breach thereof, shall be submitted by either party to arbitration via Business Arbitration Scheme and resolved in accordance with the established procedures of the Scheme.
In the event that a court finds any provision of the Agreement invalid and/or unenforceable, the parties agree that the remaining provisions shall remain valid and in force.
Neither party shall be deemed by mere lapse of time (without giving notice or taking other action hereunder) to have waived any breach by the other party of any of the provisions of the Agreement. Further, the waiver by either party of a particular breach of the Agreement by the other party shall not be construed as, or constitute, a continuing waiver of such breach, or of other breaches of the same or other provisions of the Agreement.
Unless indicated otherwise, all references to “days” shall mean calendar days.
The Agreement shall not be binding upon Effco Software Limited until it has been signed by an officer of Effco Software Limited.
The Client unconditionally warrants and guarantees that any elements of text, graphics, photos, designs, trademarks, or other artwork furnished to Effco Software Limited and/or its assigns for inclusion in the Product are owned by the Client, or that the Client has permission from the rightful owner to use each of these elements, and will hold harmless, protect, indemnify and defend Effco Software Limited, Inc. its assigns and its subcontractors from any liability (including solicitors’ fees and court costs), including any claim or suit, threatened or actual, arising from the use of such elements furnished by the Client.
22. THIRD PARTY SOFTWARE
Additionally, in the event Client elects to install or seek assistance from Effco Software Limited in connection with the installation of any third-party software, the following terms shall apply. Client represents and warrants that Client has the right to use and install the third-party software, and have paid the applicable licensing fees for the third party software, and the third-party software does not and shall not infringe on the intellectual property rights of any other person or entity. Client agrees to defend, indemnify and hold harmless Effco Software Limited and its employees, officers and directors for, from and against any and all claims brought against Effco Software Limited and its employees, officers and directors by a third-party alleging the software infringes the third-party’s rights or a patent, trademark, copyright or other intellectual property right. Client agrees that in such an event Client shall pay all resulting costs, damages, expenses and reasonable solicitors’ fees that a court awards and settlements incurred by Effco Software Limited in connection with any such claims.
23. LAWFUL PURPOSE
Client may only use the Product for lawful purposes.
Neither party may not assign the Agreement or any of its rights or obligations or the license hereunder, without the prior written consent of the other.
25. RESERVATION OF RIGHTS
Effco Software Limited reserves all rights not specifically granted herein.
26. REMEDIES NOT EXCLUSIVE
The remedies available to the parties under the Agreement are cumulative and not exclusive to each other, and any such remedy will not be deemed or construed to affect any right which either of the parties is entitled to seek at law, in equity or by statute.
27. CHOICE OF LAW AND JURISDICTION
The Agreement will be governed and interpreted according to Irish Law and will be subject to the jurisdiction of the Irish Courts. The parties hereby irrevocably and unconditionally agree to the non-exclusive jurisdiction of the courts of the jurisdiction of the Republic of Ireland, and all courts competent to hear appeals there from.