Supplier Terms & Conditions
1.1 The definitions and rules of interpretation in this Clause 1.1 apply in these terms and conditions (“the Conditions”).
Client: a person, firm or company who has engaged the Company to provide services for it, the name of whom is set out in the Purchase Order.
Contract: the Supplier’s quotation for Services and the Company’s subsequent acceptance of it under Condition 2.2.
Company: In the Company of Huskies Limited, a private company limited by shares with its registered office at 4th Floor, Portview House, Dublin 4, D04 V9Y9.
Deliverables: all Documents, products and materials developed by the Supplier or its agents, subcontractors and employees in relation to the Services in any form, including original work produced written, created or performed for the Company by or through the Supplier, its servants, agents or sub-contractors.
Document: includes, without limitation, in addition to any document in writing, any drawing, map, plan, diagram, design, picture or other image, tape, disk or other device or record embodying information in any form.
Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trademarks, 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, publicity rights, performance 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.
Services: the services to be provided by the Supplier under the Contract as set out in the Purchase Order issued.
Supplier: the person, firm or company who supplies the Services to the Company.
VAT: value added tax chargeable under Irish law for the time being and any similar additional tax.
1.2 Headings in these conditions shall not affect their interpretation.
1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.4 A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or reenactment and includes any subordinate legislation for the time being in force made under it.
1.5 Any obligation in the Contract on a person not to do something includes, without limitation, an obligation not to agree, allow, permit or acquiesce in that thing being done.
1.6 References to conditions are to the conditions of the Contract.
2. APPLICATION OF CONDITIONS
2.1 These Conditions shall:
(a) apply to and be incorporated into the Contract; and
(b) prevail over any inconsistent terms or conditions contained, or referred to, in the Supplier’s quotation, confirmation of order, or specification, or another Document supplied by the Supplier, or implied by law, trade custom, practice or course of dealing.
2.2 The Supplier’s quotation for Services constitutes an offer by the Supplier to supply the Services specified in it on these Conditions. No offer placed by the Supplier shall be accepted by the Company other than by the Company issuing a written and executed purchase order (“the Purchase Order”) at which point a contract for the supply and purchase of the Services on these Conditions will be established. The Supplier’s standard terms and conditions (if any) attached to, enclosed with or referred to in any quotation, specification or another Document shall not govern the Contract.
2.3 No Services shall be performed by the Supplier and no invoice shall be raised by the Supplier or no demand for payment made by the Supplier until the Contract referred to a Clause 2.2 above is accepted by the Company by issuing a written and executed Purchase Order.
3.1 The Services supplied under the Contract shall be provided by the Supplier to the Company from the date of acceptance by the Company of the Supplier’s offer in accordance with condition 2.2.
4. SUPPLIER’S OBLIGATIONS
4.1 The Supplier shall manage and complete the Services, and deliver the Deliverables to the Company in accordance with the Purchase Order and shall allocate sufficient resources to the Services to enable it to comply with this obligation.
4.2 The Supplier shall meet, and time is of the essence as to, any performance dates specified in the Purchase Order. If the Supplier fails to do so, the Company may (without prejudice to any other rights it may have):
(a) terminate the Contract in whole or in part without liability to the Supplier;
(b) refuse to accept any subsequent performance of the Services which the Supplier attempts to make;
(c) purchase substitute services from elsewhere;
(d) hold the Supplier accountable for any loss and additional costs incurred; and
(e) have all sums previously paid by the Company to the Supplier under the Contract refunded by the Supplier.
4.3 The Supplier shall:
(a) submit proposals for work to be done for the Company and explain the concepts and mechanisms of such proposals to the Company, and prepare artwork and timetables for such work, all of which shall be subject to the Company’s express approval. For the avoidance of doubt, receipt by an employee of the Company or by an employee or agent or consignee of the Company of such proposals shall not constitute the Company’s approval.
(b) appoint a Senior Accounts Executive to be the primary contact between the Supplier and the Company who will have the power to commit the necessary resources and responsibilities within the Supplier and will lead the Supplier’s teams working for the Company.
(c) use reasonable skill and care in the performance of the Services.
(d) observe, and ensure that all employees, consultants, agents and subcontractors which it engages in relation to the Services will be of a high calibre and suitably skilled and experienced to perform properly the tasks assigned to them.
(e) comply with all data protection legislation, including but not limited to the DPA and GDPR, and comply with all relevant obligations arising from all such data protection legislation including where sensitive personal data is being processed the use of additional security measures such as strong encryption for transmission.
5. DELIVERY OF DELIVERABLES AND PASSING OF TITLE
5.1 The Supplier, at his own risk and expense shall deliver the Deliverables properly packaged, secured and marked with the applicable order number or the Services (as the case may be) to the location specified in the Purchase Order, or any alternative subsequently agreed. In the case of Deliverables, each package should be clearly marked with the Supplier’s name and the delivery address specified. If the Deliverables are incorrectly delivered the Supplier will be held responsible for any additional expense incurred in transporting the Deliverables to their correct destination.
5.2 The giving of a receipt by an employee of the Company or by an employee or agent of the consignee or the Company to any railroad company, shipment agent, carrier or the person or Company whomsoever, shall be proof only of actual delivery and not of delivery in good condition and quantity specified.
5.3 The risk in the Deliverables will remain with the Supplier until they are delivered to and are accepted in writing by the Company. Title to the goods will pass to the Company on delivery, or upon payment if earlier. Passing of title is without prejudice to any right or rejection of the Deliverables which may accrue to the Company.
6. CHARGES AND PAYMENT
6.1 Subject to Clause 6.2, below, in consideration of the provision of the Services by the Supplier, the Company shall pay the charges as set out in the Purchase Order. A valid invoice of the Supplier will, subject to Clause 6.2, become due for payment by the Company in sixty days (60) unless otherwise indicated on the face of the Purchase Order. A copy of the signed Purchase Order must be attached to the invoice. The Company may deduct any amounts owing by the Supplier to the Company pursuant to any agreement between the parties.
6.2 The Company will only pay for the costs of the goods and services purchased from the Supplier to the extent that it has been put in funds in advance by the Client to settle any amount payable to the Supplier.
7. QUALITY OF SERVICES
7.1 The Supplier warrants to the Company that:
(a) the Supplier will perform the Services with reasonable care and skill and in accordance with generally recognised commercial practices and standards in the industry for similar services;
(b) the Services and Deliverables will conform with all descriptions and specifications provided to the Company by the Supplier; and
(c) the Services and Deliverables will be provided in accordance with all applicable legislation and all industry codes of practice from time to time in force.
7.2 The Company’s rights under these Conditions are in addition to the statutory terms implied in favour of the Company by the Supply of Goods and Services Act 1980 and any other statute.
7.3 The provisions of this condition 7 shall survive any performance, acceptance or payment pursuant to the Contract and shall extend to any substituted or remedial services provided by the Supplier.
8. INTELLECTUAL PROPERTY RIGHTS
8.1 Unless otherwise agreed in writing by the Company, the Supplier shall assign to the Company, with full title guarantee and free from all third party rights, the Intellectual Property Rights and all other rights in the products of the Services (including the Deliverables).
8.2 The Supplier shall, promptly at the Company’s request, do (or procure to be done) all such further acts and things and the execution of all such other documents as the Company may from time to time require for the purpose of securing for the Company the full benefit of the Contract, including all right, title and interest in and to the Intellectual Property Rights and all other rights assigned to the Company in accordance with Condition 8.1.
8.3 Before engaging any sub-contractor to produce, write or create any work for the Company the Supplier shall procure that such sub-contractor shall assign all Intellectual Property Rights to the Company. Where Intellectual Property Rights are assigned to the Company, the Supplier shall ensure that the sub-contractor will at the Company’s request and at the Supplier’s own cost obtain all signatures, execute all papers and take all actions that the Company may request in order to perfect title in the Company. If the Supplier is unable to obtain an assignment from the subcontractor, the Supplier shall inform the Company of the terms offered by the subcontractor, which shall be subject to Company’s written approval. Where Intellectual Property Rights are assigned or licensed to the Company the Supplier shall obtain from the sub-contractor the right for the Company to register as a trade mark or service mark any part of the work as part of such assignment or licence.
8.4 Without prejudice to 8.3 above, with respect to any Intellectual Property Rights used in or in connection with work performed or produced for the Company which are not rights of the Supplier’s or of the Supplier’s subcontractors, the Supplier shall acquire in advance all licenses necessary in respect of such rights for the work and shall use all reasonable endeavours to obtain permission for the Company to use such rights in any way that the Company may specify.
8.5 Without prejudice to 8.3 and 8.4 above, prior to using any performance in or in connection with work produced or performed for the Company the Supplier shall acquire all consents under the Copyright and Related Rights Act 2000 and such other consents necessary in respect of such performance and shall use all reasonable endeavours to obtain permission for the Company to use the performance in any way whatsoever.
8.6 The Supplier shall inform the Company of the extent of and any restrictions upon the licences and consents procured under 8.3, 8.4 and 8.5 above prior to the commencement of use of the relevant Intellectual Property Rights or performance and shall supply written confirmation of such information and a copy of the full terms and conditions applicable to such licence or consent. The Supplier will set up and maintain a database containing accurate and up to date details of all licences and consents procured for the Company, and will provide details of licences and consents to the Company either upon request or if it comes to the Supplier’s attention that the Company is proposing to make further use of the rights to which the licences or consents relate. Upon expiry or termination of the Supplier’s appointment by the Company the Supplier will supply the Company with a copy of such database.
8.7 The Supplier will at the Company’s request promptly deliver up any original drawings or similar work created for the Company and in which copyright or similar rights subsist.
8.8 The Supplier shall not and shall procure that none of its servants, agents or contractors shall develop, create or use in the course of providing services to the Company any material which infringes or is likely to infringe the copyright or industrial or Intellectual Property Rights of any person.
8.9 Unless prevented by the laws of any country, the Supplier shall ensure that all authors and directors’ works produced for the Company shall, at no cost to the Company, irrevocably waive their moral rights in relation to such works.
8.10 Subject to 8.11 below, the Company or any persons authorised by the Company shall be entitled to use in any part of the world any material prepared for the Company by or through the Supplier without further payment unless otherwise agreed in writing before the work was commissioned.
8.11 The Supplier shall ensure that all performance and broadcasting rights in relation to anything produced for the Company hereunder by or through the Supplier shall be exercisable by the Company in Ireland for such period and on such terms as the Company may direct.
8.12 The Company’s approval of material prepared by or through the Supplier is limited to approving the layout and quality of the work and is not deemed to constitute acceptance or approval of the material as being legal or as not containing any infringement of third party Intellectual Property Rights, except in respect of any information or material which has been provided to the Supplier by the Company.
8.13 If the Company becomes aware that there is a potential legal or proprietary problem with work produced or performed for it by or through the Supplier it will promptly notify the Supplier and the Supplier will make any modification which may be necessary to remedy that defect. The cost of modifications shall be met by the party whose default has given rise to the problem concerned.
8.14 The Supplier shall not publish, and shall procure that none of its agents or subcontractors shall publish any defamatory material.
9.1 The Supplier shall indemnify and hold the Company harmless from all claims and all direct, indirect or consequential liabilities (including loss of profits, loss of business, depletion of goodwill and similar losses), costs, proceedings, damages and expenses (including legal and other professional fees and expenses) awarded against, or incurred or paid by the Company as a result of or in connection with:
(a) any alleged or actual infringement, whether or not under Irish law, of any third party’s Intellectual Property Rights or other rights arising out of the use or supply of the products of the Services (including the Deliverables); or
(b) any claim made against the Company in respect of any liability, loss, damage, injury, cost or expense sustained by the Company’s employees or agents or by any Company or third party to the extent that such liability, loss, damage, injury, cost or expense was caused by, relates to or arises from the provision of the Services or the Deliverables as a consequence of a direct or indirect breach or negligent performance or failure or delay in performance of the Contract by the Supplier.
9.2 the Supplier shall maintain in force, with a reputable insurance company, public liability insurance in an amount not less than €6,500,000, employers’ liability insurance in an amount not less than €13,000,000 and professional indemnity cover in an amount not less than €6,500,000 and shall, on the Company’s request, produce both the insurance certificates giving details of cover and the receipt for the current year’s premium.[JD1]
9.3 The provisions of this condition 9 shall survive termination of the Contract, however arising.
10.1 Each Party shall keep confidential all information received from the other Party and shall not disclose such information to any third party except to the extent necessary for the Contract of which these Conditions form part, and then only if any recipient is made aware of and agrees to comply with the confidentiality obligations of these conditions as if it were a party to them.
10.2 In the event that either party or any of its employees or consultants / sub-contractors is required by law or a Court Order to disclose any confidential information that party shall: –
(a) promptly notify the other party in writing no later than five business days prior to any such disclosure;
(b) co-operate with the other party to preserve the confidentiality of such confidential information consistent with that applicable law;
(c) use its best endeavours to limit any such disclosure to the minimum disclosure necessary to comply with such law or Court Order.
10.3 These obligations shall not apply to any information which is already in the public domain or comes into the public domain other than through a breach of these conditions, or to information that the recipient can positively demonstrate it was known to him prior to its disclosure, or to information that subsequently comes lawfully into the possession of the recipient from a third party.
10.4 All tangible forms of confidential information shall be the property of the disclosing party and shall be returnable immediately by the recipient at the disclosing party’s request. The recipient shall not reproduce, copy, publish or distribute any confidential information without the disclosing party’s prior consent.
11. FORCE MAJEURE
11.1 A party, provided that it has complied with the provisions of Condition 11.3, shall not be in breach of the Conditions nor liable for any failure, delay and performance of any obligations under these Conditions arising from or attributable to acts, events, omissions or accidents beyond its reasonable control (Force Majeure Event) including but not limited to any of the following: –
(a) acts of God including but not limited to fire, flood, earthquake, windstorm or other natural disaster.
(b) epidemic or pandemic;
(c) threat of or preparation for war, armed conflict, imposition of sanctions, embargo, breaking off diplomatic relations or similar actions;
(d) terrorist attack, civil, civil commotion or riots;
(e) nuclear, chemical or biological contamination or sonic boom;
(f) voluntary or mandatory compliance with any law including a failure to grant any licence or consent needed or any change in the law or interpretation of the law;
(g) fire, explosion or accidental damage;
(h) loss at sea;
(i) extreme and adverse weather conditions;
(j) collapse of building structures, failure of plant machinery, machinery, computers or vehicles;
(k) any labour dispute, including but not limited to strikes, industrial action or lock outs;
(l) interpretation or failure of utility services, including but not limited to electrical power, gas or water.
11.2 The corresponding obligations of the other party will be suspended to the same extent as those of the party first affected by the Force Majeure Event.
11.3 Any party that is subject to a Force Majeure Event shall not be in breach of the Conditions provided that: –
(a) it promptly notifies the other parties in writing of the nature and extent of the Force Majeure Event causing its failure or delaying performance;
(b) it could not have avoided the effect of the Force Majeure Event by taking precautions which having regard to all the matters known to it before the Force Majeure Event, it ought reasonably to have taken but did not;
(c) it has used all reasonable endeavours to mitigate the effect of the Force Majeure Event, to carry out is obligations under the Conditions in any way that is reasonably practicable and to resume the performance of its obligations as soon as reasonably practicable.
11.4 If the Force Majeure Event prevails for a continuous period of more than 14 days any party may terminate the Contract by giving 7 days written notice to the other party. On the expiration of this notice period, the agreement will terminate. Such a termination shall be without prejudice to the rights of the parties in respect of any breaches of the Conditions occurring prior to such a termination.
12. Data Protection Law
The following definitions apply to this clause 12
“Controller” shall, have the meaning given to “data controller” in the DPA
“Data Breach” means a breach of security leading to the accidental, unauthorised or unlawful destruction, loss, alteration, or disclosure of, or access to, any Protected Data;
“Data Subject” means an identified or identifiable natural person;
“DPA” means the Data Protection Acts, 1988 to 2018 and any other statute, statutory instrument, rule, order, directive, or regulation, of any competent national or supranational authority relating to the protection of Personal Data or the privacy of individuals (including but without limitation the GDPR with effect from the date or dates that it becomes directly effective in Ireland);
“GDPR” means the General Data Protection Regulation (Regulation (EU) 2016/679) and any primary or secondary legislation enacted pursuant to or in the exercise of any rights obligations or options conferred on Ireland by the said Regulation;
“Personal Data” shall have the meaning given to it in the DPA;
“Processing” shall have the meaning given to it under the DPA, and “Process” and “Processed” shall be construed accordingly;
“Processor” shall have the meaning given to “data processor” in the DPA
“Protected Data” means all Personal Data received or Processed by the Supplier in the course of the performance of the Services or otherwise in connection with this Agreement;
“Supervisory Authority” means any local, national or multinational agency, department, official, parliament, public or statutory person or any government or professional body, regulatory or supervisory authority, board or other body responsible for administering the DPA.
12.1 The Company and the Supplier agree and acknowledge that Schedule 1 (Data Processing) sets out the scope of Processing of Protected Data which is contemplated by this Contract. The Supplier shall comply in all respects with the provisions of that Schedule. The Supplier shall not Process any Personal Data otherwise than in accordance with such Schedule unless additional Processing is agreed in writing as being necessary for the proper performance of the Services or of the obligations of either Party under this Contract. The following provisions of this Clause 12 are without prejudice to the generality of this Sub-Clause 12.1.
12.2 The Supplier agrees declares and confirms that, in respect of all Protected Data, the Company is the Controller and/or Processor on behalf of the Client and the Supplier is the Processor, where the Company is the Controller and a Sub-Processor where the Company is the Processor on behalf of the Client .
12.3 The Supplier hereby undertakes to the Company that where Processing of Protected Data is carried out by the Supplier on behalf of the Company, the Supplier:
12.3.1 shall Process such Protected Data only in accordance with the Company’s documented instructions, unless otherwise required by law;
12.3.2 where required by law to Process Protected Data otherwise than in accordance with the Company’s documented instructions, shall notify the Company of such requirement prior to such Processing taking place (unless prohibited by law from doing so);
12.3.3 shall ensure that all officers, employees, agents, subcontractors and other persons Processing Protected Data on behalf of the Company:
- shall have signed agreements requiring them to keep the Protected Data confidential;
- shall be made aware of the Supplier’s data protection obligations under this Agreement; and
- shall have received appropriate data protection training (such training to be regularly updated);
12.3.4 shall implement appropriate technical and organisational security measures against unauthorised access, unauthorised alteration, disclosure or destruction of Protected Data;
12.3.5 shall, in consultation with the Company, adopt appropriate policies for the retention and deletion of Protected Data, and fully implement such policies; and
12.3.6 shall ensure that, on the expiry or earlier termination (for any reason) of this Agreement, all Protected Data shall be (i) returned to the Company or (ii) securely destroyed and satisfactory evidence of such destruction shall be provided to the Company
12.4 The Supplier shall not export or Process any Protected Data outside the European Economic Area without the Company’s prior written consent. If the Company so requires as a condition of such consent, the Supplier shall, and shall procure that any relevant third party shall, enter into a Model Contract with the Company prior to the export or Processing of Protected Data outside of the European Economic Area.
12.5 The Supplier shall provide reasonable assistance to the Company in complying with the Company’s obligations under the DPA, including:
12.5.1 ensuring the security of Processing;
12.5.2 responding to requests for information from Data Subjects;
12.5.3 preparation of data privacy impact assessments;
12.5.4 consultation with the Supervisory Authority in relation to high risk Processing; and
12.5.5 notification of Data Breaches to the Supervisory Authority and/or to Data Subjects,
such assistance to be provided in a prompt and timely manner, having regard to relevant time limits, and where appropriate, within the time limits specified at Clause 12.5.
12.6 The Supplier shall not subcontract or outsource any Processing of Protected Data (“Sub-Processing”) to any third party (“Sub-Processor”) without the Company’s consent. Where the Company grants consent to any Sub-Processing, the Supplier shall,
12.6.1 before any such Sub-Processing takes place:
184.108.40.206 enter into a binding written contract with the Sub-Processor imposing the same data protection obligations on the Sub-Processor as are contained in this Agreement and which contains an absolute prohibition against further Sub-Processing; and
220.127.116.11 comply with any other conditions as the Company may require in its absolute discretion
12.6.2 adequately monitor the Sub-Processor in its compliance with its data protection obligations in relation to the Sub-Processing
12.6.3 at the request of the Company take such action as shall be necessary to enforce the Sub-Processor’s data protection obligations.
12.7 All Data Breaches shall be reported to the Company within 24 hours of the Supplier becoming aware of the incident. Where any Data Breach is not reported within such time, the Supplier shall provide the Company with a written statement of the reasons for the delay. The Supplier shall provide such further details in relation to any Data Breach as the Company may reasonably require within 24 hours of request.
12.8 The Supplier shall maintain complete, accurate and up to date written records of all categories of Processing activities carried out on behalf of the Company containing such information as required under the DPA and any other information the Company reasonably requires (“Processing Records”), and shall make available to the Company on request in a timely manner such information (including the Processing Records) as is reasonably required by the Company to demonstrate compliance by the Supplier with its obligations under the DPA and this Agreement, which the Company may disclose to the Supervisory Authority or any other relevant Regulatory Authority.
12.9 The Supplier shall allow for and contribute to audits, including inspections, conducted by the Company or another auditor mandated by the Company, whether during or after the term of this Agreement, for the purpose of demonstrating the Company’s compliance with its obligations under the DPA and this Agreement, subject to the Company giving the Supplier reasonable prior notice of such audit and/or inspection, ensuring that any auditor is subject to binding obligations of confidentiality and that such audit or inspection is undertaken so as not to cause undue disruption to the conduct of the Company’s business.
12.10 In the event of a breach of this Clause 12 by the Supplier, the Supplier undertakes to fully indemnify the Company, without limit or exclusion against any losses, damages, costs or expenses, fine imposed by any regulatory or supervisory authority and other liabilities (including any indirect or consequential loss and all legal fees) incurred by, awarded against or agreed to be paid by the Company, arising from or in connection with a breach by the Supplier of this clause 12 or a breach by the Supplier of the DPA.
12.11 The provisions of this Clause 12 shall survive the expiry or earlier determination of the Conditions (however determined).
13.1 Without prejudice to any other rights or remedies which the parties may have, either party may terminate the Contract without liability to the other immediately on giving notice to the other if:
(a) the other party commits a breach of any of its obligations under the Contract and (if such a breach is remediable) fails to remedy that breach within 7 days of that party being notified in writing of the breach; or
(b) where the other party ceases to trade, enters liquidation either compulsory or (except for the purposes of reconstruction or amalgamation) voluntarily, has a receiver appointed over all or any of its assets or has examination order made against it.
13.2 The Company may terminate the Contract without liability to the Supplier where any change occurs in the ownership or control of the Supplier.
13.3 Termination shall not affect accrued rights and obligations of the parties at the day of the termination.
14. CONSEQUENCES OF TERMINATION
14.1 On expiry or termination of this agreement:
(b) each party shall return to the other party all documents and materials (and any copies) containing, reflecting, incorporating or based on the other party’s Confidential Information
(d) the Supplier shall deliver to the Company (or any third party specified by the Company), promptly, in accordance with the Company’s instructions, all Deliverables and all of the Company’s property, in its possession or control at the date of termination or expiry and shall certify in writing to the Company that it has done so;
(e) the Supplier shall execute any documents which the Company reasonably requests in order to formalise the end of the relationship between the Company and the Supplier (including releases, disclaimers and assignments) and shall effect the assignment of all Intellectual Property Rights in the Deliverables to the Company pursuant to clause 8; and
(f) the Supplier shall co-operate with, and provide all assistance to, the Company and any third party nominated by the Company, as the Company may request to enable an orderly and efficient transfer of the performance of the Services (or part of them) to the Company or a third party (as applicable) without interruption or adverse effect. The Company shall reimburse the Agency with the reasonable costs actually incurred by the Supplier in providing that assistance.
14.2 Termination or expiry of this agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination or expiry.
15.1 No variation of the Contract or these Conditions shall be valid unless it is in writing and signed by, or on behalf of, each of the parties.
16.1 A waiver of any right under the Contract is only effective if it is in writing and it applies only to the circumstances for which it is given. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that (or any other) right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that (or any other) right or remedy.
16.2 Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
17.1 If any provision of the Contract (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 Contract, and the validity and enforceability of the other provisions of the Contract shall not be affected.
17.2 If a provision of the Contract or part of any provision is found illegal or unenforceable, that provision shall apply with the minimum modifications necessary to make it legal, valid and enforceable.
18. ENTIRE AGREEMENT
18.1 The Contract constitutes the whole agreement between the parties and supersedes all previous agreements between the parties relating to its subject matter.
18.2 Each party acknowledges that, in entering into the Contract, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently).
19. LIMITATION OF LIABILITY
19.1 Nothing shall limit or exclude the Company’s or the Supplier’s liability for: (i) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors, (ii) fraud or fraudulent misrepresentation, (iii) or any other liability which cannot be limited or excluded by applicable law.
20.1 The Supplier shall not, without the prior written consent of the Company, assign, transfer, charge, mortgage, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
20.2 The Company may at any time assign, transfer, charge, mortgage, subcontract or deal in any other manner with all or any of its rights under the Contract and may sub-contract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.
20.3 Each party that has rights under the Contract is acting on its own behalf and not for the benefit of another person.
21. DISPUTE RESOLUTION
21.1 The parties shall endeavour to resolve any dispute, claim or controversy which may arise out or in connection with this Contract, or the application, implementation, validity, breach or termination thereof through negotiations between the principals.
21.2 Should such negotiations prove to be unsuccessful, the parties agree to enter into mediation in good faith to settle such a dispute and will do so in accordance with the Centre for Effective Dispute Resolution (CEDR) Model Mediation Procedure. Unless otherwise agreed between the parties within 14 working days of notice of the dispute, the mediator will be nominated by CEDR. To initiate the mediation a party must give notice in writing (ADR Notice) to the other party to the dispute, referring the dispute to mediation.
21.3 If there is any point on the logistical arrangements of the mediation, other than nomination of the mediator, upon which the parties cannot agree within 14 working days from the date of the ADR Notice, where appropriate, in conjunction with the mediator, CEDR will be requested to decide that point for the parties having consulted with them.
21.4 Unless otherwise agreed, the mediation will start not later than 28 working days after the date of the ADR notice. No party may commence any court proceedings in relation to any dispute arising out of this agreement until it has attempted to settle the dispute by mediation and either the mediation has terminated or the other party has failed to participate in the mediation, provided that the right to issue proceedings is not prejudiced by a delay.
21.5 In the event of failure to resolve a dispute at mediation, the Parties hereto agree to subject the matters at issue to arbitration, with a suitable arbitrator to be nominated by the President for the time being of the Law Society of Ireland.
22. GOVERNING LAW AND JURISDICTION
22.1 The Contract shall be construed in accordance with Irish law and the parties submit to the exclusive jurisdiction of the Irish Courts.
In the Company of Huskies Limited. Terms & Conditions of Supply