1. Interpretation
1.1 Definitions
In these Terms and Conditions (which are part of this Agreement) unless the context requires otherwise:
“Agreement” means these Terms and Conditions, and any document referred in these Terms and Conditions including the Order and the Specification;
“Authorised User” means any employee or agent of Customer who is authorised by Customer to use the Services;
“Claims” has the meaning set out in clause 8.1;
“Commencement Date” means the commencement date specified in the Order;
“Customer Data” means all data or information that is collected, stored, recorded, transmitted or otherwise processed by the Platform as a result of, or in connection with Customer’s use of the Services;
“Data Protection Law” means the General Data Protection Regulation (Regulation (EU) 2016/679) and any other applicable data protection legislation including the Data Protection Acts 1988 to 2018 and the terms ‘personal data’, ‘controller’, ‘processor’, ‘process’ and ‘personal data breach’ have the meanings given to them in Data Protection Law;
“Documentation” means the manual(s), specifications and other documents associated with the Services made available by CreditLogic to Customer under this Agreement whether in print, magnetic, electronic, video or any other format;
“Fees” means all fees payable by Customer to CreditLogic under this Agreement, as set out in the Order;
“Intellectual Property Rights” means all intellectual and/or industrial property rights including patents, trade marks, trade names, copyrights (including rights in computer software), domain names, service marks, utility models, topography rights, design rights and trade secrets, and all rights or forms of protection of a similar nature or having equivalent or the similar effect to any of them which may subsist anywhere in the world, whether or not any of them are registered or registerable and including applications (or rights to apply) for registration of any of them;
“Losses” has the meaning set out in clause 8.1;
“Order” means the order for the Services completed by the Customer on CreditLogic’s website;
“Platform” means CreditLogic’s mortgage origination platform, as described in the Specification;
“Service Suspension” has the meaning set out in clause 2.6;
“Services” means the services consisting of enabling the Customer to use the Platform as a hosted solution, as described in the Specification;
“Specification” means the description of the Services available at [insert webpage url], which may be updated by CreditLogic from time to time;
“Term” means the term of this Agreement, as set out in clause 10.1;
“Virus” means any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
1.2 In this Agreement, unless the context requires otherwise:
(a) Words in the singular shall include the plural and vice versa and words importing persons shall include firms or companies.
(b) Any reference to a section, clause, paragraph or sub-paragraph shall be a reference to a section, clause, paragraph or sub-paragraph (as the case may be) of this Agreement and any reference in a clause or paragraph shall be a reference to the clause or paragraph in which the reference is contained unless it appears from the context that a reference to some other provision is intended.
(c) Any words following 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.
(d) The headings in these Terma and Conditions are for convenience only and shall not affect their interpretation.
1.3 This Agreement, including any attachments hereto, governs the Services to be provided by CreditLogic to Customer to the exclusion of any other terms and conditions. By completing the Order, Customer agrees to be bound by the terms and conditions of this Agreement.
2. Services
2.1 In consideration of the payment by Customer of the Fees and subject to the terms and conditions of this Agreement CreditLogic hereby grants to Customer a non-exclusive, non-transferable right and licence, without the right to grant sublicences, to permit Authorised Users to use the Services and the Documentation during the Term solely for Customer’s internal business purposes.
2.2 Save to the extent expressly permitted under this Agreement or as may be allowed by any applicable law which is incapable of exclusion by agreement, Customer shall not (and shall procure that its Authorised Users do not):
(a) rent, lease, sub-license, transfer, assign, distribute, time-share or otherwise commercially exploit or provide access to the Services or the Documentation to any third party except as explicitly permitted in this Agreement;
(b) copy, alter, modify or create derivative works of or distribute all or any part of the Services or the Documentation;
(c) use any reverse compilation, decompliation or disassembly techniques or similar methods to determine any design structure, concepts or construction method of the Services, or replicate the functionality of the Services for any purpose;
(d) store, distribute or transmit any material during the course of its use of the Services that is obscene, threatening, defamatory, harmful, harassing, discriminatory, offensive, unlawful or infringing of any third party’s Intellectual Property Rights or other personal or proprietary rights;
(e) store, distribute or transmit during the course of its use of the Services any Viruses;
(f) interfere with or disrupt the integrity or performance of the Services or the data contained therein;
(g) attempt to gain unauthorised access to the Services or their related systems or networks; or
(h) tamper with, bypass or alter the security features of the Services or circumvent any technical licensing protections for any reason.
2.3 Customer shall ensure that the number of Authorised Users at any time shall not exceed the maximum number set out in the Order or otherwise agreed in writing with CreditLogic from time to time.
2.4 Customer shall ensure that each Authorised User shall keep a secure password for their use of the Services and that each Authorised User shall keep such password confidential and shall not share it with any other person.
2.5 Customer acknowledges that it is solely responsible for ensuring that its use (and the use of its Authorised Users) of the Services and the Documentation is in compliance with the terms of this Agreement and that it shall be responsible for all acts and omissions which occur under the accounts of each Authorised User.
2.6 CreditLogic may temporarily suspend Customer’s and/or any of its Authorised Users’ access to any portion or all of the Services if CreditLogic reasonably determines that:
(a) there is a threat or attack on the Services (including a denial of service attack) or other Force Majeure Event;
(b) Customer is using the Services in breach of this Agreement; or
(c) Customer is in default of its payment obligations
(any such suspension being a “Service Suspension”).
2.7 CreditLogic shall provide notice to Customer of the grounds for any Service Suspension and the steps required to be carried out by Customer to demonstrate to CreditLogic that such grounds no longer exist and that the Service Suspension should be terminated. CreditLogic will have no liability whatsoever for any loss or damage arising as a result of any Service Suspension and Customer will not be entitled to any refund for any Service Suspension.
2.8 The rights provided under this clause 2 are granted to Customer only, and shall not be considered granted to any subsidiary, holding company or other entity within Customer’s group.
3. Customer Data
3.1 Customer shall:
(a) be solely responsible for the legality, reliability, integrity, accuracy and quality of Customer Data and for taking appropriate steps to archive and back-up Customer Data; and
(b) follow all directions, instructions and requirements given or made by CreditLogic from time to time with regard to the format and configuration of data which Customer wishes to upload or enter onto the Platform.
3.2 Each party shall comply with its respective obligations under Data Protection Law in connection with the performance of this Agreement.
3.3 To the extent that personal data comprised in Customer Data is processed by CreditLogic in its performance of the Services, the parties agree that:
(a) CreditLogic shall process such personal data, details of which are set out in the Order in connection with providing the Services for the duration of the Term. The obligations and rights of Customer shall be as set out in this Agreement;
(b) CreditLogic shall only process such personal data in accordance with the documented instructions of Customer, including with regard to transfers of personal data to a third country and solely as strictly necessary for the performance of this Agreement;
(c) CreditLogic shall ensure that the persons authorised by it to process such personal data are bound by appropriate confidentiality obligations;
(d) CreditLogic shall implement such technical and organisational security measures as are required to comply with its data security obligations under Data Protection Law;
(e) CreditLogic may engage sub-contractors to process such personal data, provided that it shall inform Customer of any addition to or replacement of any such sub-contractor, giving Customer an opportunity to object to such changes;
(f) where any sub-contractor of CreditLogic will be processing such personal data on behalf of Customer, CreditLogic shall ensure that a written contract exists between CreditLogic and the sub-contractor containing clauses equivalent to those imposed on CreditLogic in this
clause 3.3. If any sub-contractor fails to meet its data protection obligations, CreditLogic shall remain fully liable to Customer for the performance of the sub-contractor’s obligations;
(g) taking into account the nature of the processing, CreditLogic shall assist Customer by implementing appropriate technical and organisational measures to allow Customer to comply with requests from data subjects to exercise their rights under Data Protection Law;
(h) CreditLogic shall, at Customer’s expense, assist Customer in ensuring compliance with its obligations in respect of security of personal data, data protection impact assessments and prior consultation requirements under Data Protection Law;
(i) CreditLogic shall, at the direction of Customer, delete or return such personal data to Customer on termination of this Agreement, unless CreditLogic is required by applicable law to store the personal data;
(j) CreditLogic shall (i) make available to Customer all information reasonably necessary to demonstrate compliance with the obligations laid down in this clause 3.3; and (ii) allow for and assist with audits, including inspections, conducted by Customer or another auditor mandated by Customer, in order to ensure compliance with the obligations laid down in this clause 3.3 including its data security obligations under Data Protection Law;
(k) CreditLogic shall inform Customer immediately if, in its opinion, it receives an instruction from Customer which infringes Data Protection Law;
(l) CreditLogic shall notify Customer promptly after becoming aware of any personal data breach affecting such personal data and provide Customer with such co-operation and assistance as may be reasonably required to comply with any reporting obligations which may apply in respect of any such breach; and
(m) CreditLogic may transfer such personal data outside of the European Economic Area (EEA) in the course of providing the Services provided that any such transfer shall be in accordance with Data Protection Law.
4. Payments
4.1 The Fees payable by Customer under this Agreement and the stages at which CreditLogic shall be entitled to issue invoices for such Fees are set out in the Order.
4.2 Customer acknowledges that it may subscribe for different levels of usage rights in respect of the Services. Customer may request an increase or decrease in its usage rights and associated changes to the Fees payable by notifying CreditLogic. Any such changes are subject to CreditLogic’s agreement.
4.3 Customer shall pay Fees invoiced under this Agreement to CreditLogic within thirty (30) days of the date of the invoice.
4.4 All amounts payable by Customer under this Agreement shall be paid without the right of setoff or counterclaim, without deduction or withholding and to the bank account nominated by CreditLogic from time to time.
4.5 If Customer fails to pay any amount by its applicable due date under this Agreement, without prejudice to any other rights or remedies available to it, CreditLogic may:
(a) charge Customer interest on the overdue amount, from the due date up to the date of payment, at the rate of three per cent (3%) above the EURIBOR 1 month rate; and/or
(b) suspend the Services in accordance with clause 2.6.
4.6 All amounts and Fees stated or referred to in this Agreement are exclusive of value added tax and any other applicable sales taxes.
5. Warranties and Representations
5.1 CreditLogic warrants to Customer that:
(a) it has the right to enter into this Agreement and to grant Customer the licence to use the Services and Documentation as contemplated by this Agreement;
(b) the Services will conform in all material respects to the Specification;
(c) in the event that Customer notifies CreditLogic of any defect or fault in the Services in consequence of which it fails to conform to the warranties in clause 5.1(b), CreditLogic shall, as Customer’s sole and exclusive remedy, use commercially reasonable endeavours to promptly correct such non-conformance which may include, at CreditLogic’s option, repairing or replacing the non-conforming element of the Services.
5.2 Each party represents and warrants to the other party that:
(a) it has full power and authority to execute and deliver this Agreement and to comply with the provisions of, and perform all its obligations and exercise all of its rights under, this Agreement;
(b) it has taken all necessary action to authorise the execution and delivery of this Agreement and this Agreement constitutes its legal, valid and binding obligations enforceable against it in accordance with its terms, except as enforcement may be limited by any relevant bankruptcy, insolvency, administration or similar laws affecting creditors’ rights generally; and
(c) it will comply with all applicable laws in respect of the exercise of its rights and the performance of its obligations under this Agreement
5.3 Save as expressly set out in this Agreement, all warranties, conditions, representations, statements, terms and provisions express or implied by statute, common law or otherwise are hereby excluded to the greatest extent permitted by law.
6. Limitation of Liability
6.1 Nothing in this Agreement is intended to or shall limit or exclude either party’s liability for (a) death or personal injury caused by negligence; (b) fraud; (c) intentional breach of this Agreement; or (d) any other liability which may not be excluded or limited under applicable law.
6.2 Subject to clause 6.1 and save in respect of any breach of clauses 4 or 11, neither party’s aggregate liability under this Agreement, whether in contract, tort (including negligence) or otherwise, for any loss or damage, arising out of or in connection with this Agreement or otherwise shall in any case exceed the sums paid by Customer to CreditLogic under this Agreement in the twelve months preceding the event giving rise to the relevant claim.
6.3 In no event shall either party be liable under this Agreement for special, incidental, indirect or consequential loss or damage including damages or costs incurred as a result of loss of time, loss of savings, loss of data or loss of profits.
7. Ownership
7.1 CreditLogic (and/or its licensors) owns all Intellectual Property Rights in the Services, the Platform the Documentation and the CreditLogic’s Confidential Information (collectively, the “CreditLogic Materials”). Except as expressly stated herein, this Agreement does not grant Customer any rights to or in the CreditLogic Materials.
7.2 Customer (and/or its licensors) owns all Intellectual Property Rights in Customer Data. Customer hereby grants to CreditLogic a non-exclusive, royalty-free, worldwide, sub-licensable licence for the duration of the Term to use Customer Data for the purpose of providing the Services.
8. Intellectual Property Indemnity
8.1 CreditLogic shall defend, indemnify and hold harmless Customer from and against any losses, damages, liabilities, judgments, penalties, fines, costs and expenses (including reasonable legal fees) (“Losses”) which may be incurred by either Party in connection with claims, demands, suits, or proceedings (“Claims”) made or brought against Customer arising out of or in connection with any infringement or alleged infringement of any third party’s Intellectual Property Rights in consequence of Customer’s use of the Services in accordance with the terms and conditions of this Agreement, provided that: (a) the Supplier is given prompt notice of any such Claim; (b) Customer makes no admissions without the Supplier’s prior written consent; (c) the Supplier is given sole authority to defend or settle the Claim; and (d) Customer provides reasonable co-operation to the Supplier in the defence and settlement of such Claim, at the Supplier’s expense.
8.2 If at any time an allegation of infringement of Intellectual Property Rights is made in respect of the Services, or if in CreditLogic’s reasonable opinion such an allegation is likely to be made, CreditLogic may: (a) seek to obtain at its own cost and expense for Customer the right to the continued use of the Services or (b) modify or replace the Services so as to avoid the infringement, without detracting from overall performance, CreditLogic making good to Customer any loss of use during such modification or replacement.
8.3 The indemnity set out in this clause 8 shall not apply, and CreditLogic shall have no liability, in respect of:
(a) any infringement claim which results from the combination, operation or use of the Services or Documentation provided to Customer pursuant to this Agreement with software, hardware and materials not supplied or recommended by CreditLogic under this Agreement, if such infringement would have been avoided by the use of the Services or Documentation without such software, hardware or materials; or
(b) any Claim which results from any use of the Services or any Documentation otherwise than in accordance with the terms of this Agreement.
9. Customer Indemnity
9.1 Customer shall defend, indemnify hold harmless CreditLogic from and against any Losses in connection with Claims made or brought against CreditLogic in consequence of Customer’s use of the Services otherwise than in accordance with the terms and conditions of this Agreement.
10. Term and Termination
10.1 This Agreement shall commence on the Commencement Date and shall continue in force for an initial period of twelve (12) months (the “Initial Term”) unless it is terminated earlier in accordance with its terms. This Agreement shall be renewed automatically without notice for a further period of twelve (12) months on the last day of the Initial Term (the “Renewal Date”) and on each annual anniversary of the Renewal Date, unless it is terminated in accordance with its terms.
10.2 Either party may terminate this Agreement at any time after the expiration of the Initial Term by giving the other party ninety (90) days’ written notice.
10.3 A party (the “Initiating Party”) may terminate this Agreement with immediate effect by written notice to the other party (the “Defaulting Party”) on or at any time after the occurrence of an event specified in sub-clause 10.4 in relation to the Defaulting Party.
10.4 The events are:
(a) the Defaulting Party being in breach of a material obligation under this Agreement and, if the breach is capable of remedy, failing to remedy the breach within thirty (30) days starting on the day after receipt of written notice from the Initiating Party giving adequate details of the breach and requiring the Defaulting Party to remedy the breach;
(b) a petition is presented or an order is made or a resolution is passed for the bankruptcy or winding-up of the Defaulting Party or any of its subsidiaries; or
(c) any action is taken by its officers or any other person for the winding-up, dissolution or striking off of the Defaulting Party or any of its subsidiaries; or
(d) the Defaulting Party or any of its subsidiaries becomes insolvent or is unable to pay its debts as they fall due or the Defaulting Party or any of its subsidiaries stops or threatens to stop making payments generally or declares or threatens to declare a moratorium with respect to all or any part of its debts or enters into any composition or other arrangement with its creditors generally; or
(e) any action is taken by any person to appoint a receiver, administrator, administrative receiver, examiner, trustee, or similar officer of the Defaulting Party or any of its subsidiaries or any property or assets of the Defaulting Party or any of its subsidiaries or any such receiver, administrator, administrative receiver, examiner, trustee, or similar officer is appointed; or
(f) anything analogous to any of the events referred to in clauses 10.4(b) to (e) occurs in any applicable jurisdiction.
10.5 Each party’s further rights and obligations under this Agreement shall cease immediately on termination of this Agreement, but termination does not affect a party’s accrued rights and obligations (including any right to be indemnified under this Agreement) at the date of termination, or any provision which, by its meaning or effect, is intended to survive termination including clauses 6 to 15.
11. Confidentiality
11.1 Each party shall keep confidential any information disclosed to it (whether in writing, orally, in electronic form, by demonstration or by any other means, whether before, on or after the Commencement Date, whether directly or indirectly and whether designated as confidential or which ought reasonably to be regarded as confidential under or in connection with this Agreement by the other party including information relating to the other party’s operations, processes, plans or intentions, products, services, know-how, trade secrets, software, market opportunities and business affairs (“Confidential Information”) and shall not use the same for any purpose other than the performance of this Agreement or divulge the same to any third party without the prior written consent of the other party; provided that each party may disclose Confidential Information to its officers, directors, employees and agents that have a need to know such Confidential Information (collectively, the “Representatives”) so long as such Representatives are informed of the confidential nature of the Confidential Information and agree to keep such Confidential Information confidential in accordance with the terms of this Agreement.
11.2 Clause 11.1 shall not apply to any:
(a) information in the public domain otherwise than by breach of this Agreement;
(b) information in the possession of the receiving party before disclosure as aforesaid;
(c) information obtained from a third party who is free to divulge the same; or
(d) information which is properly disclosed pursuant to a statutory obligation, the order of a court of competent jurisdiction or that of a competent regulatory authority.
11.3 CreditLogic may identify Customer, by name and logo, as a customer of CreditLogic in its press releases, marketing materials, proposals, client lists and other comparable documents except to the extent expressly agreed otherwise in the Order.
11.4 The obligations of both parties as to disclosure and confidentiality shall continue in force notwithstanding the termination of this Agreement.
12. Force Majeure
12.1 If and to the extent that either party (the “Affected Party”) is prevented, hindered or delayed from or in performing any of its obligations under this Agreement by circumstances not within its reasonable ability to control, including acts of God, inclement weather, flood, lightning, fire, trade disputes, strikes, lockouts, acts or omissions of Governments or other competent authority, acts of terrorism, war, military operations, riot, civil commotion and acts or omissions of third parties for whom the Affected Party is not responsible (“Force Majeure”), the Affected Party’s obligations under this Agreement are suspended while the event of Force Majeure continues and to the extent that it is prevented, hindered or delayed.
12.2 The Affected Party shall promptly notify the other party (the “Other Party”) of the estimated extent and duration of such inability to perform its obligations (“Force Majeure Notification”) and upon the cessation of the event of Force Majeure shall notify Customer of such cessation.
12.3 In the case a Force Majeure Notification then if the Force Majeure lasts for more than thirty (30) days from the date of the Force Majeure Notification, the Other Party may terminate this Agreement by giving not less than fifteen (15) days’ written notice to the Affected Party after expiry of the said thirty (30) day period PROVIDED THAT such notice shall be deemed not to have been given in the event that notice of cessation of the Force Majeure given pursuant to this clause 12 is received by the Other Party prior to the expiry of the fifteen (15) days’ notice.
13. Dispute Resolution
13.1 The parties shall use all reasonable endeavours to resolve any dispute or claim arising in connection with this Agreement.
13.2 Where the parties fail to resolve any such dispute within fourteen (14) days, either party may refer the dispute to the parties’ respective chief executive officers who shall meet in good faith to try to resolve the dispute. If the dispute is not resolved within fourteen (14) days of such referral to the parties’ respective chief executive officers, then either party may refer the dispute to a non-binding mediation to be conducted in accordance with the Centre for Effective Dispute Resolution (“CEDR”) procedures then in force. Such mediation shall be conducted in Ireland by a mediator agreed between the parties or, if the parties cannot agree on a mediator within fourteen (14) days of referral of the dispute to mediation, by a mediator appointed by CEDR.
14. Miscellaneous
14.1 This Agreement contains the entire agreement between the parties with respect to its subject matter, supersedes all previous agreements and understandings between the parties with respect to its subject matter, and may not be modified except by an instrument in writing signed by the duly authorised representatives of the parties. Each of the parties acknowledges and agrees that in entering into this Agreement it does not rely on and shall have no remedies in respect of, any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this Agreement or not) relating to the subject matter of this Agreement, other than as expressly set out in this Agreement.
14.2 Nothing in this Agreement shall create, or be deemed to create, a partnership or the relationship of principal and agent or employer and employee between the parties and/or any of their servants, agents and subcontractors.
14.3 If any provision of this Agreement is determined to be partially void or unenforceable by any court or body of competent jurisdiction or by virtue of any law to which it is subject or by virtue of any other reason whatsoever, it shall be void or unenforceable to that extent only and no further and the validity and enforceability of any of the other provisions of this Agreement shall not be affected.
14.4 No delay, neglect, or forbearance on the part of either party in enforcing any term or condition of this Agreement shall either be or be deemed to be a waiver or in any way prejudice any right of that party under this Agreement.
14.5 Any notice served under this Agreement shall be sufficiently served if sent by email or post to the usual or last known place of business of the addressee and proof of despatch in the case of a letter or proof of transmission in the case of email is conclusive evidence of receipt by the addressee in due course of transmission.
14.6 Neither party shall be entitled to assign, transfer, charge or otherwise deal with any of its rights or obligations under this Agreement without the prior written consent of the other party, such consent not to be unreasonably withheld or delayed.
14.7 Unless otherwise specified in this Agreement, each Party’s rights and remedies are cumulative and not exclusive of any other rights or remedies provided by law.
15. Governing Law
This Agreement shall be governed by and construed in accordance with the laws of Ireland and, subject to clause 13, each of the parties submits to the exclusive jurisdiction of the courts of Ireland for the resolution of disputes arising out of or in connection with this Agreement.