Terms & Conditions
Software Consulting Services - GSO Terms and Conditions for Software Consulting Services are in the document below and will be subject to a separate Letter of Engagement
Training Courses - GSO Training Course Terms and Conditions are in a separate page at this link Training Courses T&C's
Software Implementation Services Terms and conditions of GSO
1. Definitions and interpretation
1. In these Terms and Conditions, unless the context otherwise requires, the following words and expressions shall have the following meanings:
information in any form which is of a confidential or proprietary nature disclosed by the Disclosing Party (as defined below) in any way pursuant to the provision of the Services which:
a. is marked as confidential;
b. is identified as confidential at the time of disclosure and is confirmed in writing as being confidential within 14 days of disclosure;
c. is by its nature confidential; or
d. relates to the business of the Disclosing Party or any of its customers, employees, agents, suppliers, subcontractors, officers, associates or advisers;
the Client's manager in relation to the Services, appointed in accordance with Clause 4.1;
any information, documentation, equipment or other material to be supplied to the Supplier by the Client in connection with these Terms and Conditions;
all Documents, products, presentations, intelligence and materials developed by the Supplier in relation to the Services in any form, including data, reports and information communicated orally;
a party disclosing Confidential Information to the other;
includes, in addition to any document in writing, any drawing, map, plan, diagram, design, email, picture or other image, tape, disk, memory card or stick or any other device or record embodying information in any form;
the date from which the Services will be provided as set out in the Engagement Letter;
the letter setting out the basis on which the Supplier has agreed to provide the Services to the Client which, together with these Terms and Conditions, forms the Agreement;
the period from the Effective Date until the completion of the Services as specified in the Engagement Letter, or such other period as may be agreed in writing between the parties;
the fees for provision of the Services as set out in the Engagement Letter;
in relation to a company, that company, its subsidiaries, any company of which it is a subsidiary (its holding company) and any other subsidiaries of any such holding company; and each company in a group is a member of the group. Unless the context requires otherwise, the application of the definition of Group to any company at any time will apply to the company as it is at that time;
'Intellectual Property Rights'
all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world;
any information about an identifiable individual collected by one party or disclosed by a party to the other party in connection with these Terms and Conditions;
all Documents, information and materials provided by the Supplier relating to the Services which existed prior to the Effective Date including, but not limited to, data and reports;
the party to whom Confidential Information is disclosed by a Disclosing Party;
the services to be provided by the Supplier under the Agreement as set out in the Engagement Letter, together with any other services which the Supplier provides, or agrees in writing to provide, to the Client;
the Supplier's manager for the Services appointed under Clause 3.2; and
value added tax and any similar additional tax.
2. Any capitalised term not defined in these Terms and Conditions shall have the meaning ascribed to it in the Engagement Letter.
3. In these Terms and Conditions and the Engagement Letter, unless the context otherwise requires:
a. any reference to the Agreement or this Agreement includes reference to the Engagement Letter and these Terms and Conditions as varied, amended, supplemented, extended, restated and/or replaced from time to time;
b. any reference to a clause or sub-clause is to a clause or sub-clause of these Terms and Conditions;
c. the headings in these Terms and Conditions are inserted for convenience only and shall not affect their construction or interpretation;
d. use of the singular includes the plural and vice versa;
e. use of any gender includes the other genders;
f. any reference to a 'person' includes a natural person, firm, government, state, partnership, company, corporation, association, organisation, institution, foundation, trust or agency (in each case whether or not having separate legal personality);
g. any reference to a statute, statutory provision or subordinate legislation ('legislation') shall (except where the context otherwise requires) be construed as referring to such legislation as amended and in force from time to time and to any legislation which re-enacts or consolidates (with or without modification) any such legislation;
h. reference to 'writing' or 'written' includes the representation or reproduction of words, symbols or other information in visible form by electronic communication;
i. any reference to a party is to a party to the Agreement and shall, where relevant, be deemed to be a reference to or include, as appropriate, its lawful successor, assignee or transferee; and
j. any phrase introduced by the terms 'including', 'include', 'in particular' or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
2. Duration and Termination
1. [These Terms and Conditions shall apply for the Engagement Period and shall automatically renew for consecutive periods of equal length to the initial Engagement Period thereafter unless otherwise terminated in accordance with this Clause 2.]
2. Without prejudice to any other rights or remedies which the parties may have and subject to the provisions of Clause 2.3 below, either party may terminate the Agreement by giving the other not less than 90 (Alter as Appropriate) d ays' writt en notice before the end of the Engagement Period.
3. Either party may terminate the Agreement immediately by giving written notice to the other if:
a. the other party commits a material breach of any of the terms of the Agreement and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or
b. an order is made or a resolution is passed for the winding up of the other party, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order of the other party; or
c. an order is made for the appointment of an administrator to manage the affairs, business and property of the other party, or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the other party, or notice of intention to appoint an administrator is given by the other party or its directors or by a qualifying floating charge holder; or
d. a receiver is appointed of any of the other party's assets or undertaking, or circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the other party, or if any other person takes possession of or sells the other party's assets; or
e. the other party makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way; or
f. the other party ceases, or threatens to cease, to trade; or
g. the other party takes or suffers any similar or analogous action in any jurisdiction in consequence of debt.
4. On termination of the Agreement for any reason:
. the Client shall immediately pay to the Supplier all of the Supplier's outstanding unpaid invoices and interest (if any) and, in respect of Services supplied but for which no invoice has been submitted, the Supplier may submit an invoice, which shall be payable immediately on receipt;
a. subject to the payment of all amounts due by the Client under the Agreement for the relevant Deliverables, the Supplier shall provide the Client with any completed Deliverables created up to the date of termination; and
3. Supplier's obligations
1. The Supplier shall use all reasonable endeavours to provide the Services and deliver the Deliverables to the Client in accordance with the Engagement Letter.
2. The Supplier shall appoint the Supplier's Manager who shall have authority contractually to bind the Supplier on all matters relating to the Services. The Supplier shall use reasonable endeavours to ensure that the same person acts as the Supplier's Manager throughout the Engagement Period, but may replace him from time to time where reasonably necessary in the interests of the Supplier's business, in which case the Supplier shall promptly notify the Client of the identity of the new Supplier's Manager.
4. Client's obligations
1. The Client shall:
a. cooperate with the Supplier in all matters relating to the Services and appoint the Client's Manager in relation to the Services, who shall have the authority contractually to bind the Client on matters relating to the Services; and
b. provide, in a timely manner, such material and information as the Supplier may request and ensure that it is accurate in all material respects.
2. If the Supplier's performance of its obligations under the Agreement is prevented or delayed by any act or omission of the Client, its agents, subcontractors or employees, the Supplier shall not be liable for any costs, charges or losses sustained or incurred by the Client arising directly or indirectly from such prevention or delay.
5. Change of Services
1. If either party wishes to change the scope or execution of the Services, it shall submit details of the requested change to the other in writing.
2. If either party requests a change to the scope or execution of the Services, the Supplier shall, within a reasonable time and at no additional cost for the Client, provide a written estimate to the Client of:
. the likely time required to implement the change;
a. any variations to the Fee arising from the change;
b. the likely effect of the change on the delivery of the Services; and
c. any other impact of the change on the terms of the Agreement.
3. If the Client wishes the Supplier to proceed with the change pursuant to which notice is given under the preceding provisions of this Clause 5, the Supplier has no obligation to do so unless and until the parties have agreed in writing on the necessary variations to the Fee, and any other relevant terms of the Agreement to take account of the change.
4. The Supplier may, from time to time and subject to the Client's prior written consent (which shall not be unreasonably withheld or delayed), change the Services in order to comply with any applicable statutory or regulatory requirements, provided that such changes do not materially affect the nature and scope of the Services or the Fee.
6. Payments of Fees and Commissions
1. The price for the Services shall be the Fee as set out in the Engagement Letter, which Fee is exclusive of VAT. The Fee in respect of each Engagement Period shall be paid to the Supplier without deduction or set-off.
2. The Supplier shall invoice the Client in accordance with the provisions of the Engagement Letter payments, together with any expenses and VAT.
3. The Client shall pay each invoice submitted to it by the Supplier, in full and in cleared funds, within 30 days of receipt.
4. Without prejudice to any other right or remedy that it may have, if the Client fails to pay the Supplier any instalment of the Fee or Commission on the due date, the Supplier may:
. suspend all Services until payment has been made in full;
a. claim interest on any late payment allowed by legislation; or
b. terminate the Agreement with immediate effect.
7. Intellectual property rights
1. All documents and information created by the Supplier for the Client remain the copyright of the Supplier and the Client may not use them other than pursuant to the Contract or reproduce them for any purpose without the Supplier’s written consent. Fees payable to the Supplier do not include the assignment of any copyright or other intellectual property rights.
1. The Receiving Party undertakes to keep the Disclosing Party's Confidential Information confidential and not to disclose it to any third party except as expressly permitted by these Terms and Conditions.
2. Each party undertakes that it will not, without the prior written consent of the other, disclose to any third party the existence or terms of the Agreement.
3. The restrictions and obligations set out in this Clause 8 do not apply to information which the Receiving Party is clearly able to demonstrate by documentary or other evidence:
a. is or becomes publicly available other than as a result of breach of the Agreement by the Receiving Party;
b. was received by the Receiving Party from a third party unless the Receiving Party knew that the third party was under an obligation of confidentiality to the Disclosing Party in relation to the information;
c. was rightfully in its possession prior to disclosure to it by the Disclosing Party;
d. was developed independently without access to, or use or knowledge of, the Confidential Information; or
e. was disclosed with the prior written consent of the Disclosing Party.
4. This Clause 8 does not prohibit disclosure of Confidential Information to:
. the Receiving Party's directors, employees, contractors and/or members of its Group who need to know it in relation to the provision of the Services;
a. the Receiving Party's auditors/accountants and professional advisers who need to know it; or
b. the Irish Revenue Commissioners or any other person having a statutory or regulatory right to request and receive that Confidential Information provided that, to the extent permitted by law, the Receiving Party gives the Disclosing Party such prior notice of such disclosure as is reasonable in the circumstances.
5. Each party will ensure that any person mentioned in Clause 8.4 to whom it has voluntarily disclosed Confidential Information of the other party is made aware, prior to the disclosure of that Confidential Information, that it is confidential and that such person and the Receiving Party owe a duty to the Disclosing Party to keep it confidential. The Receiving Party shall be responsible for procuring that such person complies with the duty of confidentiality and use imposed by these Terms and Conditions as if he were a party to the Agreement and will be responsible for any unauthorised disclosure or use by such person of the Confidential Information pursuant to these Terms and Conditions.
6. This Clause 8 shall survive termination of the Agreement, however arising.
9. Data Privacy
Each party is responsible for complying with any requirements and obligations that may apply to each of them respectively under applicable data protection laws and regulations relating to Personal Data made available to it.
1. Neither party shall, without the prior written consent of the other party, at any time from the Commencement Date to the expiry of six (6) months after the termination of this Agreement, solicit or entice away from the other party or employ or attempt to employ any person who is, or has been, engaged as an employee, consultant or subcontractor of the other party.
2. Any consent given by a party in accordance with clause 17.1 shall be subject to the other party paying to such consenting party a sum equivalent to 10% of the then current annual remuneration of the consenting party’s employee, consultant or subcontractor.
1. The Supplier warrants that:
a. it has the right to enter into the Agreement, and to grant the rights granted thereunder; and
b. it will perform the Services with reasonable skill and care in a competent and professional manner.
2. The Client warrants that it has the right to enter into the Agreement and to grant the rights thereunder.
1. The Supplier agrees, at its own expense, promptly to defend, indemnify and hold the Client, its officers and employees harmless from and against any claims, demands, losses, damages, liabilities, expenses (including legal costs), judgments, actions or causes of action made or brought or incurred by the Client based on any third party claim that any Deliverable used by the Client in accordance with these Terms and Conditions infringes or violates any Intellectual Property Rights of any third party except to the extent such claim:
. is covered by the indemnification obligations of the Client to the Supplier in Clause 12.3;
a. arises from or relates to any modification to any Deliverable not performed or authorised by the Supplier
2. If such a claim is made (other than in relation to images or third party quotes contained within the Deliverables), the Supplier shall:
. procure for the Client the right to continue to use the Deliverable in question, free of any liability for such infringement; or
a. modify the Deliverable in question so that it becomes non-infringing whilst otherwise complying with these Terms and Conditions.
3. The Client agrees, at its own expense, promptly to defend, indemnify and hold the Supplier, its members, agents and employees harmless from and against any third party claims, alleged claims, demands, losses, damages, liabilities, expenses (including legal costs), judgments, actions or causes of action made or brought against or incurred by the Supplier in connection with or related to:
. any claim that the Client Material infringes upon any Intellectual Property Right or any other right of any third party or any claim that such materials are defamatory or otherwise not in compliance with applicable law; or
a. the Client's products or services, except to the extent that such claim arises as a result of or in connection with any of the Deliverables incorporated into such products or services.
4. The party providing indemnification will only do so to the extent that:
. the indemnified party provides prompt written notice of any claims or actions for which it claims indemnification;
a. the indemnified party provides the party providing indemnification with reasonable assistance and cooperation in the defence of such claim or action; and
b. the party providing indemnification will have sole control over the defence and settlement of any such claim or action, provided that the indemnified party may participate in such defence at its own cost and that the indemnifying party may not settle any claim in a manner that imposes any obligation or liability on the indemnified party without the indemnified party's prior written consent.
13. Limitation of liability
The Client's attention is particularly drawn to the provisions of this clause
1. This Clause 13 sets out the entire financial liability of the Supplier (including any liability for the acts or omissions of its members, employees, agents and subcontractors) to the Client in respect of:
a. any breach of the Agreement;
b. any use made by the Client of the Services, the Deliverables or any part of them; and
c. any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Agreement.
2. All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Agreement.
3. Subject to Clause 13.4, the Supplier shall not be liable under or in connection with the Agreement for any loss of actual or anticipated income or profits, loss of contracts, loss of business, loss of goods or for any special, indirect, consequential or pure economic loss, cost, charge, expense or damage of any kind howsoever arising and whether caused by tort (including negligence), breach of contract or otherwise. The Supplier's aggregate liability under or in connection with these Terms and Conditions, whether in contract, tort (including negligence) or otherwise, shall in no circumstances exceed 100% of the aggregate Fee paid by the Client up to and including the date on which the relevant claim arose.
4. Nothing in this clause limits or excludes the liability of the Supplier:
. for death or personal injury resulting from negligence;
a. for any damage or liability incurred as a result of fraud or fraudulent misrepresentation
14. Force majeure
A party shall have no liability to the other party if it is prevented from or delayed in performing its obligations under the Agreement or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier, the Client or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, or storm (a 'Force Majeure Event'). Should the Force Majeure Event continue for longer than one month (or such other period as the parties may have expressly agreed in writing), the party adversely affected shall have the option of terminating the Agreement immediately without further liability other than such liabilities as have already accrued up to the effective date of termination.
15. Entire agreement; supremacy
1. These Terms and Conditions and the documents referred to herein constitute the entire agreement and understanding of the parties and supersede any previous agreement between the parties relating to the subject matter of the Agreement. To the extent that there is a conflict between the terms of the Engagement Letter and these Terms and Conditions, the terms of the Engagement Letter shall prevail unless expressly specified otherwise therein.
2. Each Party acknowledges that, in entering into this Agreement and the documents, it does not rely on, and shall have no remedies in respect of, any representation or warranty (whether made innocently or negligently) that is not set out in this Agreement or those documents. Each Party agrees that its only liability in respect of those representations and warranties that are set out in this Agreement or those documents (whether made innocently or negligently) shall be for breach of contract.
3. Nothing in this clause shall limit or exclude any liability for fraud.
Subject to Clause 5, no variation of this Agreement shall be valid unless it is in writing and signed by or on behalf of each of the parties.
1. Failure to exercise, or any delay in exercising, any right or remedy provided under this Agreement or by law shall not constitute a waiver of that (or any other) right or remedy, nor shall it preclude or restrict any further exercise of that (or any other) right or remedy.
2. No single or partial exercise of any right or remedy provided under this Agreement or by law shall preclude or restrict the further exercise of any such right or remedy.
3. A waiver (which may be given subject to conditions) of any right or remedy provided under this Agreement or by law shall only be effective if it is in writing and shall apply only to the Party to whom it is addressed and for the specific circumstances for which it is given. It shall not prevent the Party who has given the waiver from subsequently relying on the right or remedy in other circumstances.
1. If any provision of this Agreement (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed not to form part of the Agreement, and the validity and enforceability of the other provisions of the Agreement shall not be affected.
2. If a provision of this Agreement (or part of any provision) is found illegal, invalid or unenforceable, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
Notice given under the Agreement shall be in writing, sent for the attention of the person, and to the address given in this Engagement Letter (or such other address, fax number, email address or person as the relevant party may notify to the other party) and shall be delivered personally, sent by fax or email or sent by pre-paid, first-class post or recorded delivery. A notice is deemed to have been received, if delivered personally, at the time of delivery, in the case of fax or email, at the time of transmission, in the case of pre-paid first class post or recorded delivery, 48 hours from the date of posting and, if deemed receipt under this clause 19 is not within business hours (meaning 9.00 am to 5.30 pm Monday to Friday on a day that is a business day), at 9.00 am on the first business day following delivery. To prove service, it is sufficient to prove that the notice was transmitted by fax or email, to the fax number or email address of the party as the case may be or, in the case of post, that the envelope containing the notice was properly addressed and posted.
20. Status of pre-contractual statements
Each of the parties acknowledges and agrees that, in entering into the Agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to the Agreement or not) relating to the subject matter of the Agreement, other than as expressly set out in the Agreement.
Neither party may assign or transfer its rights or obligations under the Agreement to any other person without the other party's prior written consent.
22. No partnership or agency
Nothing in this Agreement is intended to, or shall operate to, create a partnership between the parties, or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
23. Rights of third parties
This Agreement is made for the benefit of the parties mentioned herein and (where applicable) their successors and permitted assigns and is not intended to benefit, or be enforceable by, anyone else.
24. Governing law and jurisdiction
1. This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, the law of Ireland.
2. The Parties irrevocably agree that the courts of Ireland shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).