Software as a Service Agreement

Interpretation

User name and password which enables such Registered User to access the Proprietary Software and use the Services.

Applicable Rules: means the rules governing access to and usage of the Proprietary Software as specified on the Website (and as updated from time to time).

Additional Services: means any service requested or specified in an Order not comprising of Software Services.

Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in Dublin are open for business.

Charges: the charges payable by the Customer for the supply of the Services in accordance with Clause 2 of the agreement.

Commencement Date: has the meaning set out in paragraph 1 of the agreement.

Conditions: these terms and conditions as amended from time to time in accordance with Clauses 4-15

Contract: the contract between the Supplier and the Customer for the supply of Services in accordance with above

Customer: the person or firm who purchases Services from the Supplier.

Customer Systems: means all computer hardware, software and communications equipment necessary used or owned by the Customer from time to time.

Data Controller: has the meaning set out in Section 1(1) of the Data Protection Acts 1988 and 2003 Data Processor: has the meaning set out in Section 1(1) of the Data Protection Acts 1988 and 2003 Data Subject: means an individual who is the subject of Personal Data.

Deliverables: the proprietary data of the Customer (and any other deliverables) to be uploaded by the Customer onto the Proprietary Software.

Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.

Hosting System: Nominated hosting provider services(or any other data storage system selected by the Supplier for the delivery of the Services).

Order: the Customer’s order for Services as set out in any Order Form completed by the Customer.

Order Form: means any form produced by the Supplier for the ordering of Services and whether accessed through the Website or otherwise furnished to the Customer by the Supplier.

Personal Data: has the meaning set out in section 1(1) of the Data Protection Acts 1988 and 2003 and relates only to personal data comprised within Deliverables or any part of such personal data comprised within the Deliverables, in respect of which the Customer is the Data Controller and in relation to which the Supplier is providing Services under this Contract.

Privacy Statement: means the privacy statement maintained on the Website as updated and amended from time to time.

Processing: has the meaning set out in section 1(1) of the Data Protection Acts 1988 and 2003

Proprietary Software: the proprietary software of the Supplier known as DBKSERVICES.IE and DARCOTTER.COM together with updates, modifications and enhancements developed by the Supplier from time to time.

Registered User: any representative of the Customer who has been registered by the Supplier as authorised to access the Services and use the Proprietary Software and has been issued with an Access Code.

Services: collectively the Software Services and the Additional Services. Software Services: the provision of a limited license to access and use the Proprietary Software subject always to the provisions of the Access Rules.

Specifications: the description of technical specifications necessary to safely and securely enable access to the Proprietary Software, the uploading of any Deliverables and the supply of the Services as specified by the Supplier on the Website from time to time.

Supplier: DBKSERVICE.IE, a company registered in Ireland with company number .

Supplier Materials: all materials, equipment, documents, information and other property of the Supplier provided or supplied to the Customer as part of the Additional Services.

Trial: the 30 day free trial of the Services as promoted on the terms and conditions set forth on the Website.

Website: dbkservices.ie

Construction. In these Conditions, the following rules apply: (i) a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality); (ii) a reference to a party includes its, successors or permitted assigns; (iii) a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted; (iv) any phrase introduced by the terms including in particular or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms; (v) a reference to writing or written includes faxes and e-mails.

Basis of contract The Order constitutes an offer by the Customer to purchase Services in accordance with these Conditions. The Order shall only be deemed to be accepted when the Supplier issues an Acceptance at which point and on which date the Contract shall come into existence (Commencement Date). The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Supplier which is not set out in the Contract. Any samples, demonstrations, descriptive matter or advertising issued by the Supplier, and any descriptions or illustrations contained on the Website (or any of the Supplier’s catalogues, brochures or similar), are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force. 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.

Any quotation given by the Supplier shall not constitute an offer, and is only valid for a period of 20 Business Days from its date of issue. In the event that the Customer participating in a Trial, the Contract shall last for a period of thirty (30) days from the date of the Acceptance. At the conclusion of the Trial, the Customer will be asked to confirm whether it wishes to be provided with the Services on a paid basis. In the event that the Customer provides a Confirmation, then the Customer will be requested to confirm invoicing and payment methods with the Supplier. In the event that the Supplier accepts such invoicing and payment methods, it shall issue an Acceptance to the Customer and this Contract shall continue in full force and effect as and from the Commencement Date, until otherwise terminated in accordance with these Conditions. If at the conclusion of the Trial, the Customer fails, refuses or neglects to provide a Confirmation, then the Contract shall terminate.

Supply of services The Supplier shall supply the Services to the Customer in accordance with the Specification in all material respects. The Supplier shall use all reasonable endeavours to meet any performance dates specified in the Order, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services. The Supplier shall use all reasonable endeavours to ensure that the Services are available to Customer provided always that the Supplier shall have no liability to the Customer or obligation to provide the Services in the event of the occurrence of any of the following: (i) any network failures, external to the Supplier (including but limited to the Hosting System); or, (ii) any scheduled or emergency maintenance of the Proprietary Software, the Website, the Hosting System or any computing systems and networks on which the Proprietary Software is hosted (provided always that the Supplier shall where reasonably possibly, plan any scheduled maintenance (within the direct control of the Supplier) outside of those hours considered to be high volume and provide prior notice to the Customer of any such scheduled maintenance likely to result in any outage of the Services); or, (iii) server over-utilisation due to unforeseen increase in traffic by a client and/or permitted or unauthorised users. The Supplier shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event. The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.

Data protection Supplier’s Obligations - The Customer and the Supplier acknowledge that for the purposes of the Data Protection Acts 1988 and 2003 the Customer is the Data Controller and the Supplier is the Data Processor in respect of any Personal Data.

Customer’s obligations The Customer shall: (i) ensure that the scope of any Services requested together with any information submitted in any Order are complete and accurate; (ii) co-operate with the Supplier in all matters relating to the Services; (iii) provide the Supplier, its employees, agents, consultants and subcontractors, with access to the Customer Systems (and if necessary access to the Deliverables, premises, office accommodation and other facilities as reasonably required by the Supplier); (iv) provide the Supplier with any such other information and materials as the Supplier may reasonably require in order to supply the Services, and ensure that all such information and materials are accurate in all material respects; (v) obtain, prepare and maintain all Customer Systems; (vi) ensure that the Customer Systems comply at all times with the Specifications, (vii) upload the Deliverables from the Customer Systems using the Proprietary Software onto the Hosting System in a manner which at all times complies with the Specifications; (viii) ensure that all Deliverables are uploaded onto the Proprietary Software in a lawful, accurate, safe and secure manner in all material respects; obtain and maintain all necessary licences, permissions and consents which may be required before the date on which the Services are to commence; (ix) keep and maintain the Supplier Materials at the Customer’s premises in safe custody at its own risk, maintain the Supplier Materials in good condition until returned to the Supplier, and not dispose of or use the Supplier Materials other than in accordance with the Supplier’s written instructions or authorisation; (x) immediately notify the Supplier in the event of the occurrence of any breach of security of the Customer Systems or unauthorised usage of the Services; and, comply at all times with all terms and conditions specified on the Website, any notifications or guidance posted on the Website and any amendments to the Conditions, the Privacy Statement, the Specifications, the Applicable Rules or any other rules or similar as posted on the Website from time to time and whether arising as a result in any change of law or and shall not by act or omission permit anything to be done which would result in any breach of any of the foregoing.

If the Supplier’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation, including but not limited to those specified (Customer Default), then: the Supplier shall without limiting its other rights or remedies have the right to immediately suspend, without warning, the continued performance of the Services 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 to the extent the Customer Default prevents or delays the Supplier’s performance of any of its obligations; (i) the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier’s failure or delay to perform any of its obligations as set out in this Clause (ii) the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default. Charges and payment The Charges for the Services shall be as specified in Clause 2 of the agreement. Intellectual property rights All Intellectual Property Rights in or arising out of or in connection with the Proprietary Software, the Supplier Materials and the Services are owned by the Supplier. The Customer acknowledges that, in respect of any third party Intellectual Property Rights, the Customer’s use of any such Intellectual Property Rights is conditional on the Supplier obtaining a written licence from the relevant licensor on such terms as will entitle the Supplier to license such rights to the Customer.

Confidentiality A party (Receiving Party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Receiving Party by the other party (Disclosing Party), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party’s business or its products or its services which the Receiving Party may obtain. The Receiving Party shall restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Receiving Party’s obligations under the Contract, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party. Limitation of liability: (1) Nothing in these Conditions shall limit or exclude the Supplier’s liability for: death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors; or, (2) fraud or fraudulent misrepresentation. (3) the Supplier shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract or arising through any breach of duty or applicable law or act or omission of the provider of the Hosting System; and, (4) the Supplier’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the amount paid by the Customer to the Supplier pursuant to the Contract in the twelve month period immediately preceding the occurrence of the event which is alleged to have resulted in the Customer suffering loss. Except as set out in these Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.