Terms And Conditions

Master Agreement for Professional Services 2024

ITUS Secure Technologies, whose registered office is ITUS Secure Technologies, 151 Colab, Port Road, Letterkenny, Co. Donegal, Ireland. F92 H52N, with VAT number IE: IE3562861VH

The customer is classed as any user who has a trial or paid subscription for ITUS Protect.

Together, the Customer and Supplier are described as the “Parties” or “Party”.

1. DEFINITIONS

1.1. The following definitions and rules of interpretation apply in these Conditions.

Affiliate includes any subsidiary or holding company of ITUS Secure Technologies and each and any subsidiary of a holding company of ITUS Secure Technologies, any business entity from time to time controlling, controlled by, or under common control with ITUS Secure Technologies;

Authorised Reseller Programme means the programme or agreement under which the manufacturer or Service Provider consents to the Customer purchasing the Goods and/or Services from ITUS Secure Technologies;

Business Day means a day other than a Saturday, Sunday or public holiday in Ireland, when banks in Dublin are open for business;

Conditions means these terms and conditions as amended from time to time in accordance with Clause 19.10;

Contract means the contract between ITUS Secure Technologies and the Customer for the supply of Goods and/or Services formed in accordance with, and incorporating, these Conditions;

Customer means the person or firm who purchases the Goods and/or Services from ITUS Secure Technologies;

Data Privacy Legislation means the Data Protection Act 2018 and the GDPR;

Delivery Location has the meaning given in Clause 4.1;

Drop Ship means deliveries to End User(s) by ITUS Secure Technologies or to the End User or Customer by the Service Provider (in each case, as requested by the Customer);

End User means the ultimate customer of the Customer;

Force Majeure Event: has the meaning given to it in Clause 18.1;

GDPR means the General Data Protection Regulation (EU) 2016/679 (and/or any legislation which implements, preserves or replaces it);

Hardware means any device used to access the internet including but not limited to PCs, Laptops, Tablets, Servers, Mobile phones, Firewalls, Access Points, Switches etc

Hardware Specification means any specification for the Hardware, including any relevant plans or drawings, which is agreed in writing by the Customer and ITUS Secure Technologies;

Insolvency Event means (a) taking any step or action in connection with entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction; (b) suspending, or threatening to suspend, or ceasing or threatening to cease to carry on all or a substantial part of its business; or (c) its financial position deteriorates to such an extent that in ITUS Secure Technologies’ opinion its capability to adequately fulfil its obligations under the Contract has been placed in jeopardy;

Intellectual Property Rights means patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, goodwill and the right to sue for passing off rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;

Order means the Customer’s order for the supply of Goods and/or Services, as set out in the Customer’s purchase order form, the Customer’s written acceptance of ITUS Secure Technologies’ quotation, as the case may be;

Personal Data has the meaning given to it in the Data Privacy Legislation;

Service Provider means a third party who provides the Goods and/or Services to the Customer and the End Users;

Services means the services provided by a Service Provider or ITUS Secure Technologies to the Customer or End User, as appropriate, as set out in the Service Specification;

Service Specification means the description or specification, usually a statement of work, provided by ITUS Secure Technologies to the Customer for the Services;

Software means any third-party software which is to be used by the Customer or End User or availed of during services provided to the Customer. This also includes the use of Cloud technology solutions.

ITUS Secure Technologies means ITUS Secure Technologies Limited (CRO number 632116) of, Unit 191, CoLab, LYIT, Port Road, Letterkenny, Co. Donegal F92 H52N and also where the context permits its assigns any sub-contractors of ITUS Secure Technologies (ITUS Secure Technologies’ VAT number is IE 3562861 VH);

Third Party Software means all software owned by or licensed to the Customer from a third-party owner (whether or not supplied by ITUS Secure Technologies) and which comprises part of the Goods;

Website means any of ITUS Secure Technologies’ or it’s Affiliate’s websites and our software renewals database.

1.2. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

1.3. A reference to a party includes its successors and permitted assigns.

1.4. A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.

1.5. Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

1.6. A reference to writing or written includes fax and email.

2. BASIS OF CONTRACT

2.1 The Order constitutes an offer by the Customer to purchase Goods and/or Services in accordance with these Conditions.

2.2 Any element of an Order shall only be deemed to be accepted at the earliest of despatch of those particular Goods or performance of those particular Services or when acceptance is communicated in writing by an authorised representative of ITUS Secure Technologies at which point, and on which date the Contract shall come into existence.

2.3 Any samples, drawings, descriptive matter or advertising issued by ITUS Secure Technologies and any descriptions of the Goods or illustrations or descriptions of the Services contained on Websites or brochures are issued or published for the sole purpose of giving an approximate idea of the Services and/or Goods. They shall not form part of the Contract or have any contractual force.

2.4 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

2.5 Any quotation given by ITUS Secure Technologies shall not constitute an offer and is only valid for a period of 14 days from its date of issue unless otherwise specified by ITUS Secure Technologies. ITUS Secure Technologies reserves the right to increase its quoted or listed prices, or to charge accordingly in respect of any orders for Goods of non-standard specifications prior to acceptance.

2.6 All of these Conditions shall apply to the supply of both Goods and Services except where application to one or the other is specified.

2.7 Any Orders for Goods of non-standard specifications cannot be cancelled. The Customer hereby agrees to indemnify ITUS Secure Technologies against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, (including the cost of labour and materials used and overheads incurred, loss of reputation and all interest, penalties and legal and other professional costs and expenses)) suffered or incurred by ITUS Secure Technologies arising out of or in connection with the Order and its cancellation.

3. Hardware and Software products

3.1. The Hardware is described in any applicable device specification. Unless otherwise agreed, Hardware supplied in accordance with the manufacturer’s standard specifications as these may be improved, substituted or modified. ITUS Secure Technologies will use its reasonable endeavours to advise the Customer of any variation for whatsoever reason in the Hardware Specification, manufacturer’s specifications or technical data of the Hardware as soon as it receives any such notice thereof from the manufacturer. ITUS Secure Technologies will not be liable in respect of any loss or damage caused by or resulting from such variation including for curtailment or cessation of supply of Hardware following any such variation.

3.2. Software is described in any applicable software specification. Unless otherwise agreed, Software solutions are supplied in accordance with the manufacturer’s standard specifications. ITUS Secure Technologies will use its reasonable endeavours to advise the Customer of all solutions available to the best of its knowledge. All decision on software solutions rests with the Customer. ITUS Secure Technologies will not be liable in respect of any loss or damage caused by or resulting from such installations or usage of software that was procured on behalf of the customer against the recommendations of ITUS Secure Technologies.

4. DELIVERY OF GOODS (Hardware, Software and or Services)

4.1. ITUS Secure Technologies shall deliver the Goods to the location set out in the Order or such other location as the parties may agree in writing (the “Delivery Location”) at any time after ITUS Secure Technologies notifies the Customer that the Goods are ready for dispatch.

4.2. At the time of delivery, the Customer must check that the quantity of Goods and that the exterior of the Goods is in good condition. The Customer must flag any issues with ITUS Secure Technologies immediately after inspecting the Goods. If an over shipment of the Goods has occurred, the Customer must also notify ITUS Secure Technologies as soon as possible and in any event within five Business Days of the delivery. Failure to do so will result in the excess items being charged to the Customer.

4.3. In the event of any Drop Ship delivery, the Customer shall ensure that the End User complies with the Customer’s obligations set out above in Clauses 4.2.

4.4. Any dates quoted for delivery of the Goods are approximate only, and the time of delivery is not of the essence. ITUS Secure Technologies shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer’s failure to provide ITUS Secure Technologies with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.

4.5. ITUS Secure Technologies may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate Contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.

5. QUALITY OF GOODS (Hardware, Software and or Services)

5.1. Subject to Clause 5.3, ITUS Secure Technologies warrants that on delivery, the Goods shall: (a) conform in all material respects with any applicable Goods Specification; and (b) be free from material defects in design, material and workmanship.

5.2. Subject to any Authorised Reseller Programmes, ITUS Secure Technologies warrants that it has good title to or licence to supply all Goods to the Customer.

5.3. All Goods supplied which are software are only supplied “as is". The sole obligation of ITUS Secure Technologies in connection with the supply of Goods which are software is to use all reasonable endeavours to obtain and supply a corrected version from the manufacturer concerned in the event that such software should fail to conform to the Goods Specification provided always that the Customer notifies ITUS Secure Technologies of any such non-conformity within 60 days of the date of delivery of the applicable software Goods.

5.4. Subject to Clause 5.5, ITUS Secure Technologies shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full if the Customer returns the Goods in accordance with Clause 9.1. ITUS Secure Technologies will not consider any claim for compensation, indemnity or refund under liability unless it has been established or agreed with the manufacturer and, where applicable, the insurance company.

5.5. ITUS Secure Technologies shall not be liable for the Goods’ failure to comply with the warranty in Clause 5.1 if:

(a) the Customer makes any further use of such Goods after giving a notice in accordance with Clause 5.4;

(b) the defect arises because the Customer failed to follow ITUS Secure Technologies’ or the manufacturer of the Goods’ oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice;

(c) the defect arises as a result of ITUS Secure Technologies following any drawing, design or Goods Specification supplied by the Customer;

(d) the Customer alters or repairs such Goods without the written consent of ITUS Secure Technologies;

(e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions; or (f) the Goods differ from their specification as a result of changes made to ensure they comply with applicable statutory or regulatory standards.

5.6. Where ITUS Secure Technologies and/or the manufacturer has expressed in writing that the Goods qualify for an advance replacement under the terms of any manufacturer warranty, such advance replacements shall be provided subject to:

(a) compliance with any warranty terms as provided by the manufacturer of the Goods; and

(b) defective Goods must still be covered by warranty in accordance with this Clause 5; and

(d) compliance with Clause 9.1.

5.7. Except as provided in this Clause 5, ITUS Secure Technologies shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in Clauses 5.1 and 5.2 and shall not be liable for the cost of labour or other expenses incurred in repairing defective or nonconforming parts.

5.8. The terms of these Conditions shall apply to any repaired or replacement Goods supplied by Switch Business Systems.

5.9. Except as specifically set out in this Clause 5, ITUS Secure Technologies disclaims and excludes all other warranties, whether express or implied, by statute or otherwise, including but not limited to the warranties of description, design, satisfactory quality and fitness for a particular purpose, or arising from any previous course of dealing, usage or trade practice.

6. TITLE AND RISK

6.1. The risk in the Goods shall pass to the Customer at the time the Goods are handed over to the transportation company at ITUS Secure Technologies’ premises, or the manufacturer’s premises in the case of a Drop Ship delivery. ITUS Secure Technologies recommends that the Customer has appropriate insurance cover for the Goods from the point at which risk passes.

6.2. Title to the Goods (other than Third Party Software) shall not pass to the Customer until the earlier of:

(a) ITUS Secure Technologies receives payment in full (in cash or cleared funds) for the Goods and any other goods that ITUS Secure Technologies has supplied to the Customer in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all such sums; and

(b) the Customer resells the Goods, in which case title to the Goods shall pass to the Customer at the time specified in Clause 6.4.

6.3. Until title to the Goods (other than Third Party Software) has passed to the Customer, the Customer shall:

(a) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as ITUS Secure Technologies’ property;

(b) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;

(c) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on ITUS Secure Technologies’ behalf from the date of delivery;

(d) not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods;

(e) notify ITUS Secure Technologies immediately if it becomes subject to an Insolvency Event; and

(f) give ITUS Secure Technologies such information relating to the Goods as ITUS Secure Technologies may require from time to time.

6.4. Subject to Clause 6.5 and 8.1(c), the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before ITUS Secure Technologies receives payment for the Goods. However, if the Customer resells the Goods before that time:

(a) it does so as principal and not as ITUS Secure Technologies’ agent; and

(b) title to the Goods shall pass from ITUS Secure Technologies to the Customer immediately before the time at which resale by the Customer occurs; and

(c) the Customer shall hold on trust and shall account to ITUS Secure Technologies for the proceeds of sale or otherwise of the Goods including insurance proceeds and, in the case of tangible proceeds, properly stored, protected and insured.

6.5. If before title to the Goods (other than Third Party Software) passes to the Customer the Customer becomes subject to an Insolvency Event, then, without limiting any other right or remedy ITUS Secure Technologies may have:

(a) the Customer’s right to resell Goods or use them in the ordinary course of its business ceases immediately; and

(b) ITUS Secure Technologies may at any time:

(i) require the Customer to deliver up all Goods in its possession which have not been resold, or irrevocably incorporated into another product; and

(ii) if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored, using reasonable force if necessary, in order to recover them.

6.6. Despite ITUS Secure Technologies’ retention of title to the Goods, ITUS Secure Technologies reserves the right to take legal proceedings to recover the price of Goods supplied should the Customer not make full payment by the invoice due date.

7. SUPPLY OF SERVICES

7.1. ITUS Secure Technologies shall supply or procure a Service Provider to supply, the Services to the Customer or End User (where applicable).

7.2. ITUS Secure Technologies reserves the right to amend the Service Specification if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and ITUS Secure Technologies shall notify the Customer in any such event.

7.3. ITUS Secure Technologies may assist the Customer to specify or choose Services but the assessment and selection of the Customer’s chosen Services for the Customer’s and End User’s purposes remains the Customer’s ultimate responsibility. ITUS Secure Technologies does not warrant or represent that the performance of the Services will be adequate for the Customer or End User and shall not be liable for any inaccuracies in any element of the Service Specification supplied by the Customer or End User. ITUS Secure Technologies undertakes only that in giving assistance it has acted in good faith and has not been wilfully misleading.

7.4. The Customer acknowledges that the Service Provider is a third party, which ITUS Secure Technologies does not control. ITUS Secure Technologies makes no representation, guarantee or warranty about the Service Provider’s delivery of the Services or their reliability, credit rating or solvency. ITUS Secure Technologies shall not be responsible for the security of a Customer or End User’s network after the Services have been performed.

7.5. If the Services are for the installation of equipment and/or software and the End User’s hardware, network, operating system, utilities (including power and connectivity) or premises fail to satisfy requirements necessary for the installation as notified by ITUS Secure Technologies or the Service Provider to the Customer or End User (as applicable) prior to the commencement of such Services, then ITUS Secure Technologies reserves the right to refuse or curtail such Services and charge the Customer the full fee for the Services.

7.6. If the Services are for the provision of training then ITUS Secure Technologies:

(a) will only take bookings where the Customer has provided a valid purchase order number to ITUS Secure Technologies;

(b) reserves the right to provide training personnel of its own choosing and host the training at a non-ITUS Secure Technologies venue or venues; and

(c) reserves the right to refuse or curtail training if a delegate or substitute delegate attending on behalf of the Customer fails to meet qualifying requirements for the training notified by ITUS Secure Technologies to the Customer prior to the commencement of the training.

7.7. The Customer agrees to pay for any loss or extra cost incurred by ITUS Secure Technologies due to the Customer’s or End User’s lack of instructions or requirements not included in the Services Specification or through failure or delay in taking delivery or through any act or default on the part of the Customer its servants or employees or the End User.

7.8. The Customer shall use, and shall procure that the End User uses the Services in compliance with applicable laws and any fair usage policy notified to them by the Service Provider as amended from time to time.

7.9. The Customer shall ensure that if the End User accesses the Services, or the Services are provided through, the internet or otherwise, then the End User shall acknowledge and accept all risks associated with usage of such communication networks and ITUS Secure Technologies shall not accept any liability for malicious or accidental breaches of security or confidentiality when using such communication networks.

8. CUSTOMER’S OBLIGATIONS

8.1. The Customer shall:

(a) ensure that the terms of the Order and any information it provides in the Service Specification are complete and accurate;

(b) co-operate with ITUS Secure Technologies and the Service Provider in all matters relating to the Services;

(d) ensure that ITUS Secure Technologies or the Service Provider (as applicable) will be provided with any access to premises, office accommodation and other facilities as reasonably required for the performance of the Services;

(e) provide ITUS Secure Technologies and the Service Provider with such information and materials as they may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;

(f) if applicable, the Customer warrants that it will pass through any and all of the manufacturer’s or Service Provider’s applicable terms and conditions (in an agreed form) to the End User prior to the commencement of the Services or delivery of the Goods;

(g) ensure the End User obtains and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;

(h) comply with all applicable laws, including health and safety laws; ;

(i) comply with any additional obligations as set out in the Service Specification and the Goods Specification; and

(j) notify ITUS Secure Technologies if its VAT registration is amended in any way.

8.2. If ITUS Secure Technologies’ performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or End User or failure by the Customer or End User to perform any relevant obligation (“Customer Default”):

(a) without limiting or affecting any other right or remedy available to it, ITUS Secure Technologies shall have the right to suspend performance of the Services or delivery of the Goods until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays ITUS Secure Technologies’ performance of any of its obligations;

(b) ITUS Secure Technologies shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from ITUS Secure Technologies’ failure or delay to perform any of its obligations as set out in this Clause 7; and

(c) the Customer shall reimburse ITUS Secure Technologies on written demand for any costs or losses sustained or incurred by ITUS Secure Technologies arising directly or indirectly from the Customer Default.

8.3. ITUS Secure Technologies may grant special prices and/or special conditions for the execution of particular projects subject to the permission of the respective manufacturer and the delivery to the qualifying End User named in the offer. In such circumstances, the Customer undertakes to:

(a) comply with any terms and conditions advised by ITUS Secure Technologies; and

(b) comply with the respective manufacturer terms and conditions, and

(c) to hold ready all End User proofs of delivery such as delivery notes and invoices (blackening of irrelevant data is permitted for data protection compliance purposes) for the previous twelve months and to provide them on request to ITUS Secure Technologies and/or the manufacturer; and

(d) sell the Goods and Services only to the qualifying End User.

8.4. In the event of refusal of the permission by the manufacturer or noncompliance with any or all of the terms of Clause 8.3, ITUS Secure Technologies reserves the right to invoice the Customer for the difference between the special price and the usual price of the Goods and Services. Such an invoice will become payable immediately.

8.5. Customer hereby confirms that they understand and accept that telephone calls to and from ITUS Secure Technologies may be recorded for training and monitoring purposes.

9. RETURNS

9.1. All returns of Goods can only be made, and will only be accepted by ITUS Secure Technologies if they comply with the following:

(a) prior authorisation must be obtained from ITUS Secure Technologies in writing by contacting the team directly. Such prior authorisation shall be given at ITUS Secure Technologies’ sole discretion;

(b) the request for the return must be made within 14 days of the date of invoice;

(d) the Goods must be properly packed and delivered to the address on the authorisation;

(e) for non-faulty Goods, the Goods must be in a saleable condition;

(f) the Goods must be accompanied by a list of the Goods; and

(g) the Goods must still be covered by warranty in accordance with Clause 5 above.

9.2. ITUS Secure Technologies reserves the right to reject any Goods which do not comply with the conditions set out in Clause 9.1. If ITUS Secure Technologies agrees to accept any Goods returned which are not in a saleable condition, ITUS Secure Technologies reserves the right to charge the cost to the Customer of bringing the Goods into a saleable condition.

9.3. ITUS Secure Technologies reserves the right to test all Goods returned as faulty and to return to the Customer (at the Customer’s expense) any Goods found not to be faulty.

9.4. ITUS Secure Technologies also reserves the right to levy an additional reasonable charge to cover the cost of such testing. ITUS Secure Technologies reserves the right to levy an administration charge in respect of the rotation of Goods and returns.

10. CHARGES AND PAYMENT

10.1. Catalogues, price lists and other advertising literature or material as used by ITUS Secure Technologies as an indication as to the price and range of the Goods and Services offered and no prices, descriptions or other particulars contained therein shall be binding on ITUS Secure Technologies. All listed prices on Websites are shown on the understanding that they are a guideline only. The price for Goods:

(a) shall be the price set out in the Order; and

(b) shall be exclusive of all costs and charges of packaging and transport of the Goods, which shall be invoiced to the Customer.

10.2. The charges for Services shall be calculated in accordance with fee rates set out in the Order or Service Specification.

10.3. Whilst ITUS Secure Technologies tries to ensure that all prices are accurate, errors may occur. If, prior to delivery of the Goods or performance of the Services, ITUS Secure Technologies discovers an error in the price of the Goods or Services or there is an increase in the cost to ITUS Secure Technologies of the Goods or Services due to reasons outside ITUS Secure Technologies’ control, ITUS Secure Technologies reserves the right to correct or increase the price of the Goods or Services, by giving notice to the Customer at any time before delivery, to reflect any increase in the cost of the Goods or Services to ITUS Secure Technologies.

10.4. All amounts payable by the Customer under the Contract are stated in Pounds Sterling or Euros and are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by ITUS Secure Technologies to the Customer, the Customer shall, on receipt of a valid VAT invoice from ITUS Secure Technologies, pay to ITUS Secure Technologies such additional amounts in respect of VAT as are chargeable on the supply of the Services or Goods at the same time as payment is due for the supply of the Services or Goods.

10.5. In respect of Goods, ITUS Secure Technologies shall invoice the Customer on or at any time after completion of despatch. In respect of Services, ITUS Secure Technologies shall invoice the Customer after receipt of the Order or at such other time as ITUS Secure Technologies deem appropriate at its sole discretion. If Goods or Services are delivered in instalments ITUS Secure Technologies shall be entitled to invoice each instalment upon delivery thereof. The Customer must notify ITUS Secure Technologies in writing within 7 days of the date of invoice of any errors within the invoice. Failure to do so will result in ITUS Secure Technologies assuming acceptance of the invoice in full.

10.6. Unless otherwise expressly agreed in writing, the Customer shall pay each invoice submitted by ITUS Secure Technologies:

(a) within 15 days of the date of the invoice; and

(b) in full and in cleared funds to a bank account nominated in writing by ITUS Secure Technologies, and

10.7. ITUS Secure Technologies reserves the right to charge a surcharge on credit card transactions (which may exceed the amount charged to ITUS Secure Technologies by the credit card companies) by way of a handling or processing charge.

10.8. If the Customer fails to make a payment due to ITUS Secure Technologies under the Contract by the due date, then, without limiting ITUS Secure Technologies’ remedies under Clause 16, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this Clause 10.8 will accrue each day at the rate equivalent to that set for the purposes of section 6 of the Late Payment of Commercial Debts (Interest) Act 1998. Such interest will be compounded on the first day of each calendar month and payable both before and after any judgment (unless the court orders otherwise).

10.9. All amounts due under the Contract shall be paid in full without any setoff, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

10.10. Should credit facilities be provided, the Customer undertakes to notify ITUS Secure Technologies without delay of any material change in its finances, structure, share ownership and/or value of assets which may affect the Customer’s credit status. In addition to any remedy available at law, failure to report any such changes may result in credit being withdrawn without prior notice. The Customer’s credit-limit may be withdrawn or amended without prior notice by the Company. If credit facilities are withdrawn all invoices shall become immediately payable by the Customer.

11. INTELLECTUAL PROPERTY RIGHTS

11.1. The Customer hereby acknowledges that any Intellectual Property Rights used on or in relation to the Goods, Services, Websites or any Third Party Software supplied hereunder, including, but not limited to, any title or ownership rights, shall at all times and for all purposes vest and remain vested in ITUS Secure Technologies, the Service Provider or the Third Party Software owner (as applicable).

11.2. The Customer hereby acknowledges that it is its sole responsibility to comply with any terms and conditions of licence attaching to Third Party Software supplied and delivered by ITUS Secure Technologies (including if so required the execution and return of a Third Party Software licence). The Customer is hereby notified that failure to comply with such terms and conditions could result in the Customer being refused a software licence or having the same revoked by the proprietary owner. The Customer further agrees to indemnify ITUS Secure Technologies in respect of any costs, charges or expenses incurred by ITUS Secure Technologies as the result of any breach by the Customer of such terms and conditions.

11.3. Unless otherwise expressly agreed in writing, no title or ownership of software Goods or any Third Party Software licensed to the Customer or an End User under this Contract is transferred to the Customer or End User under any circumstances.

12. DATA PROTECTION AND DATA PROCESSING

12.1. Both parties will comply with all applicable requirements of the Data Privacy Legislation. This Clause 12 is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Privacy Legislation. The Customer acknowledges that it has read and understood ITUS Secure Technologies’ Privacy Policy and agrees at all times to comply with it.

12.2. The parties acknowledge that for the purposes of the Data Privacy Legislation, the Customer is likely to be the Controller of End User Personal Data and ITUS Secure Technologies is the Processor (where Controller and Processor have the meanings as defined in the Data Privacy Legislation). The rights and obligations of the Controller shall be as set out in this Clause 12.

12.3. Without prejudice to the generality of Clause 12.1, the Customer warrants that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data (as defined in the Data Privacy Legislation) to ITUS Secure Technologies for the duration and purposes of the Contract.

12.4. Where ITUS Secure Technologies acts as a Processor (as defined in the Data Privacy Legislation) for the Customer, and for the duration of this Contract, the following clauses shall apply:

(a) ITUS Secure Technologies will process Personal Data relating to the End Users (and related parties) on the written instructions of the Customer, in accordance with these Conditions, for the performance of the Contract and for any other agreed purposes, unless required otherwise by the laws of any member of the European Union or by the laws of the European Union or United Kingdom (where relevant) applicable to ITUS Secure Technologies;

(b) ITUS Secure Technologies will ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services);

(c) ITUS Secure Technologies will ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential;

(d) ITUS Secure Technologies will assist the Customer, at the Customer’s cost, in responding to any request from a data subject (as defined in the Data Privacy Legislation) and in ensuring compliance with its obligations under the Data Privacy Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;

(e) ITUS Secure Technologies will notify the Customer without undue delay on becoming aware of a personal data breach (as defined in the Data Privacy Legislation), threatened breach and/or any requests to undertake any actions that would constitute a breach or any request from a supervisory authority or regulator for information or any form of investigation in relation to processing carried out under this Conditions;

(f) ITUS Secure Technologies will at the written direction of the Customer, delete or return Personal Data and copies thereof to the Customer on termination of these Conditions unless required by applicable law or by regulation to store the Personal Data;

(g) ITUS Secure Technologies will maintain complete and accurate records and information to demonstrate its compliance with this Clause 12.4, which shall be promptly provided to the Customer on request, and to the extent audit obligations mandated by Data Privacy Legislation may not be otherwise satisfied, audits and inspections will be conducted during regular business hours, without interfering with ITUS Secure Technologies’ operations and upon reasonable prior written notice. ITUS Secure Technologies may determine that such audits and inspections are subject to the execution of a confidentiality undertaking. ITUS Secure Technologies shall be entitled to reject auditors which are competitors of ITUS Secure Technologies. The Customer shall inform ITUS Secure Technologies without undue delay and comprehensively about any errors or irregularities detected during an audit; and

(h) Where ITUS Secure Technologies appoints any third party processor of Personal Data under these Conditions, prior to such appointment ITUS Secure Technologies will enter into a written agreement with the third-party processor, incorporating terms which are no less stringent than those set out in these Conditions. Where there is a change to any such third party processors, ITUS Secure Technologies will notify the Customer either through the website www.itus-tech.com or directly.

12.5. ITUS Secure Technologies may, at any time on not less than 30 days’ notice, revise Clause 12.4 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to the Contract).

12.6. In order to accept an Order from the Customer it may be necessary for ITUS Secure Technologies to verify the Customer’s financial standing and ITUS Secure Technologies reserves the right to obtain information on the Customer’s creditworthiness from credit agencies or credit insurers (which will keep a record of any search made) and may disclose the results of those enquiries, searches and references and any information given by the Customer to any credit reference agency or to any other company in any corporate group of which it is a member.

13. CONFIDENTIALITY

13.1. Each party undertakes that it shall not at any time during the Contract, and for a period of two years after termination of the Contract, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by Clause 13.2.

13.2. Each party may disclose the other party’s confidential information: (a) to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this Clause 13; and (b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

13.3. Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.

14. LIMITATION OF LIABILITY

14.1. This clause sets out the entire financial liability of ITUS Secure Technologies and includes liability in contract, tort (including negligence), breach of statutory duty or otherwise, arising under or in connection with the Contract.

14.2. Nothing in the Contract limits any liability which cannot legally be limited, including liability for:

(a) death or personal injury caused by negligence;

(b) fraud or fraudulent misrepresentation; and

(c) breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).

14.3. Subject to Clause 15.2, ITUS Secure Technologies’ total liability to the Customer shall not exceed the greater of £100,000 or the total charges in the contract year in which the breaches occurred. Where:

(a) contract year means a 12-month period commencing with the date of the Contract or any anniversary of it;

(b) total charges means all sums paid by the Customer and all sums payable under the Contract in respect of Goods and Services which relate to the breach and are actually supplied by ITUS Secure Technologies, whether or not invoiced to the Customer, in total up to a maximum of £1,000,000; and

(c) total liability means ITUS Secure Technologies’ total liability including liability in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with all Contracts between ITUS Secure Technologies and the Customer in any 12-month period.

14.3.1. Subject to Clause 15.2 the following types of loss are wholly excluded by the parties: (a) Loss of profits;

(b) Loss of sales, business or business opportunity;

(d) Loss of anticipated savings;

(e) Loss of use or corruption of software, data or information;

(f) Loss of or damage to goodwill;

(g) Loss, additional payments, damage or inconvenience the Customer or any End User may suffer arising from the suspension or termination of any Authorised Reseller Programme suffered by the Customer that arises under or in connection with this Contract; and

(h) Indirect or consequential loss.

14.4. ITUS Secure Technologies has given commitments as to compliance of the Goods and Services with relevant specifications in Clauses 5 and 7. In view of these commitments, the terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from this Contract.

14.5. The Customer shall indemnify ITUS Secure Technologies against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by ITUS Secure Technologies arising out of or in connection with any:

(a) breach of warranty contained in these Conditions;

(b) breach or negligent performance or non-performance of the Contract by the Customer;

(c) claim made against ITUS Secure Technologies by a third party arising out of or in connection with the provision of the Services or the supply of the Goods, to the extent that such claim arises out of the breach, negligent performance or failure or delay in performance of this contract by the Customer, its employees, agents or subcontractors;

(d) claim made against ITUS Secure Technologies by a third party for death, personal injury or damage to property arising out of or in connection with defective Goods, to the extent that the defect in the Goods is attributable to the acts or omissions of the Customer, its employees, agents or subcontractors;

(e) claims made against ITUS Secure Technologies by third parties which arises from any ITUS Secure Technologies performance or non-performance pursuant to the instructions of the Customer or its authorised representative;

(f) claim arising out of or in connection with any breach of Clause 4.6;

(g) any breach of Clause 14.1(a).

14.6. This Clause 14 shall survive termination of the Contract.

15. TERMINATION

15.1. Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:

(a) the other party commits a material breach of its obligations under the Contract and (if such breach is remediable) fails to remedy that breach within 14 days after receipt of notice in writing to do so; or

(b) the other party becomes subject to an Insolvency Event.

15.2. Without affecting any other right or remedy available to it, ITUS Secure Technologies may terminate the Contract with immediate effect by giving written notice to the Customer if:

(a) the Customer fails to pay any amount due under the Contract on the due date for payment; or

(b) the Customer breaches Clauses 8.1 (h) or 8.1(i); or

15.3. Without affecting any other right or remedy available to it, ITUS Secure Technologies may suspend the supply of Services or all further deliveries of Goods under the Contract or any other contract between the Customer and ITUS Secure Technologies if the Customer fails to pay any amount due under the Contract on the due date for payment, the Customer becomes subject to an Insolvency Event, or ITUS Secure Technologies reasonably believes that the Customer is about to become subject to an Insolvency Event.

15.4. If any applicable Service Provider:

(a) terminates any Authorised Reseller Programme with the Customer; or

(b) becomes subject to an Insolvency Event ITUS Secure Technologies may terminate or temporarily suspend the provision of affected Goods or Services and ITUS Secure Technologies will have no further obligation or liability (including liability for any loss, additional payments, damage or inconvenience) to the Customer or the End User in respect of those Goods or Services or the Contract. ITUS Secure Technologies shall use reasonable endeavours to engage a new service provider on materially similar terms in a reasonable period. If the Customer agrees, the Customer will pay an additional charge to ITUS Secure Technologies in respect of the new service provider’s provision of the Goods and Services. Any delay by ITUS Secure Technologies in suspending or terminating the provision of the Goods or Services shall not constitute a waiver under this provision.

15.5. Furthermore, the Customer recognises that ITUS Secure Technologies will be an ordinary creditor of the Service Provider if an Insolvency Event occurs. ITUS Secure Technologies will use reasonable endeavours to obtain repayment of any fees paid by the Customer in respect of Services not yet performed by the Service Providers, but ITUS Secure Technologies shall not be liable to pay those fees to the Customer or End User if they are not repaid by the Service Provider or its appointed insolvency practitioner.

16. CONSEQUENCES OF TERMINATION

16.1. On termination of the Contract:

(a) the Customer shall immediately pay to ITUS Secure Technologies all of ITUS Secure Technologies’ outstanding unpaid invoices and interest and, in respect of Services and Goods supplied but for which no invoice has been submitted, ITUS Secure Technologies shall submit an invoice, which shall be payable by the Customer immediately on receipt;

(b) the Customer shall return all Goods which have not been fully paid for or any free samples or evaluation Goods. If the Customer fails to do so, then ITUS Secure Technologies may enter the Customer’s premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract.

16.2. Termination of the Contract shall not affect any rights, remedies, obligations and liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.

16.3. Any provision of the Contract that expressly or by implication is intended to have effect after termination shall continue in full force and effect.

17. FORCE MAJEURE

17.1. ITUS Secure Technologies shall not be in breach of these Conditions nor liable for delay in performing or failure to perform, any of its obligations under these Conditions (and, subject to Clause 18.2, the time for performance of the obligations shall be extended accordingly) if such delay or failure result from events, circumstances or causes beyond its reasonable control including non-performance by suppliers, Service Providers or Service Providers undergoing an Insolvency Event (a “Force Majeure Event”).

17.2. If a Force Majeure Event prevails for a continuous period of more than one month, ITUS Secure Technologies may terminate the Contract by giving 14 days' written notice to the Customer. On the expiry of this notice period, this Contract shall terminate. Following termination, ITUS Secure Technologies will have no further obligation or liability to the Customer or the End User in respect of the Contract.

18. GENERAL

18.1. ITUS Secure Technologies may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.

18.2. The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of ITUS Secure Technologies.

18.3. Any notice given to a party under or in connection with these Conditions shall be in writing and shall be delivered by hand or by pre-paid first class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case) or delivered via electronic mail (email).

18.4. Any notice shall be deemed to have been received:

(a) if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; and

(b) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am GMT time on the second Business Day after posting; This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

18.5. Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.

18.6. Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.

18.7. No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other, or authorise either party to make or enter into any commitments for or on behalf of the other party.

18.8. Entire agreement (a) The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. (b) Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in the Contract. (c) Nothing in this clause shall limit or exclude any liability for fraud.

18.9. Third parties rights (a) Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract. (b) The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.

18.10. Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is agreed in writing and signed by an authorised representative of the parties. ITUS Secure Technologies may vary these Conditions by issuing a new version on the website www.switchsystems.ie, or as communicated to the Customer from time to time. Any Order placed after any variation to these Conditions have been so communicated will be deemed to incorporate the variation.

18.11. Governing law. The Contract and any dispute or claim (including noncontractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the laws of Ireland.

18.12. Jurisdiction. Each party irrevocably agrees that the courts of Ireland shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.

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