19 May 2021
OUTMIN TERMS OF SERVICE
1.1 These Terms of Service entered into by and between Outmin Limited t/a Outmin, incorporated and registered in Ireland with company number 668743 whose registered office is at Dogpatch Labs, The CHQ Building, North Wall Quay, Dublin, D01 Y6H7 (“Outmin“) and the entity or person subscribing to or accesses any Services (“Customer” or “you“) shall govern the provision of the Services (the “Agreement“).
1.2 If you are accessing or using the Services on behalf of your company, you represent that you are authorised to accept this Agreement on behalf of your company, and all references to “you” or “Customer” reference your company.
1.3 Outmin has developed certain software applications and platforms which it makes available to subscribers via the internet on a pay-per-term basis for the purpose of providing a suite of bookkeeping, accountancy and administrative services, detailed in Schedule 1 below.
1.4 The Customer wishes to use Outmin’s service in its business operations.
1.5 Outmin has agreed to provide and the Customer has agreed to take and pay for Outmin’s service subject to the terms and conditions of this Agreement.
2.1 The definitions and rules of interpretation set out in Schedule 5 apply in this Agreement:
3 User Subscriptions
3.1 Subject to the Customer purchasing User Subscriptions in accordance with clause 4.3 and clause 10.1 and paying the Subscription Fees, the restrictions set out in this clause and the other terms and conditions of this Agreement, Outmin hereby grants to the Customer a non-exclusive, non-transferable right, without the right to grant sublicenses, to permit the Authorised Users to use the Software Services and the Documentation during the Term solely for the Customer’s internal business operations. Outmin may also provide Customer access to Free Trial Services on the terms of this Agreement.
3.2 In relation to the Authorised Users, the Customer undertakes that:
(a) the maximum number of Authorised Users that it authorises to access and use the Software Services and the Documentation shall not exceed the number of User Subscriptions it has purchased from time to time;
(b) it will not allow or suffer any User Subscription to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access or use the Software Services and/or Documentation;
(c) each Authorised User shall keep a secure password for their use of the Software Services and Documentation, that such password shall be changed no less frequently than every six months and that each Authorised User shall keep their password confidential;
(d) it shall maintain a written, up to date list of current Authorised Users and provide such list to Outmin within 5 Business Days of Outmin’s written request at any time or times;
(e) it shall permit Outmin or Outmin’s designated auditor to audit the Software Services in order to establish the name and password of each Authorised User and the Customer’s data processing facilities to audit compliance with this Agreement. Each such audit may be conducted no more than once per quarter, at Outmin’s expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Customer’s normal conduct of business;
(f) if any of the audits referred to in clause 3.2(e) above reveal that any password has been provided to any individual who is not an Authorised User, then without prejudice to Outmin’s other rights, the Customer shall promptly disable such passwords and Outmin shall not issue any new passwords to any such individual; and
(g) if any of the audits referred to in clause 3.2(e) reveal that the Customer has underpaid Subscription Fees to Outmin, then without prejudice to Outmin’s other rights, the Customer shall pay to Outmin an amount equal to such underpayment as calculated in accordance with the prices set out in the Subscription Fees within 10 Business Days of the date of the relevant audit.
3.3 The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Software Services that:
(a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
(b) facilitates illegal activity;
(c) depicts sexually explicit images;
(d) promotes unlawful violence;
(e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
(f) is otherwise illegal or causes damage or injury to any person or property; and Outmin reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer’s access to any material that breaches the provisions of this clause.
3.4 The Customer shall not:
(a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under this Agreement:
(i) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means; or
(ii) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
(b) access all or any part of the Software Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation; or
(c) use the Software Services and/or Documentation to provide services to third parties; or
(d) subject to clause 19 (Assignment), license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Software Services and/or Documentation available to any third party except the Authorised Users, or
(e) attempt to obtain, or assist third parties in obtaining, access to the Software Services and/or Documentation, other than as provided under this clause; or
(f) introduce or permit the introduction of any Virus or Vulnerability into Outmin’s network and information systems.
3.5 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Software Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify Outmin.
3.6 The rights provided under this clause are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer.
3.7 If the Customer registered for Free Trial Services, then the Customer may use the Services provided by Outmin for a period of 30 days or other such period determined by Outmin on a trial basis free of charge until the earlier of (a) the end of the 30 day free trial period (if not terminated earlier) or (b) the start date of paid User Subscriptions (“Free Trial Period“). Free Trial Services are permitted solely for the Customer’s use to determine whether to purchase User Subscriptions. Free Trial Services may not include all functionality and features accessible as part of a paid User Subscription. Unless the Customer terminates the Free Trial Services, the User Subscriptions will be deemed to have been purchased by the Customer at the end of the Free Trial Period and the Subscription Fees will be charged in accordance with clause 9 and Schedule 3 of this Agreement. If Customer terminates the Free Trial Services, or does not purchase User Subscriptions, the Customer’s right to access and use the Services will terminate at the end of the Free Trial Period and the Customer instructs Outmin to delete all of Customer data in the Services save that Outmin may retain copies in accordance with Outmin’s data retention policies for the purposes of compliance with applicable law and/or the enforcement or defence of its rights. Notwithstanding anything to the contrary in this Agreement, Outmin will have no warranty, indemnity, support or other obligations with respect to Free Trial Services.
4 Additional user subscriptions
4.1 Subject to clause 4.2 and clause 4.3, the Customer may, from time to time during any Subscription Term, purchase additional User Subscriptions in excess of the number set out in Schedule 3 and Outmin shall grant access to the Services and the Documentation to such additional Authorised Users in accordance with the provisions of this Agreement.
4.2 If the Customer wishes to purchase additional User Subscriptions, the Customer shall notify Outmin in writing. Outmin shall evaluate such request for additional User Subscriptions and respond to the Customer with approval or rejection of the request. Where Outmin approves the request, Outmin shall activate the additional User Subscriptions within 5 Business Days of its approval of the Customer’s request.
4.3 If Outmin approves the Customer’s request to purchase additional User Subscriptions, the Customer shall, within 30 days of the date of Outmin’s invoice, pay to Outmin the relevant fees for such additional User Subscriptions as set out in Schedule 3 and, if such additional User Subscriptions are purchased by the Customer part way through the Initial Subscription Term or any Renewal Period (as applicable), such fees shall be pro-rated from the date of activation by Outmin for the remainder of the Initial Subscription Term or then current Renewal Period (as applicable).
5 Availability of the Software Services
5.1 Outmin shall, during the Term, provide the Software Services and make available the Documentation to the Customer on and subject to the terms of this Agreement.
5.2 Outmin shall use commercially reasonable endeavours to make the Software Services available 24 hours a day, seven days a week, except for:
(a) planned maintenance carried out during the maintenance window of 10.00 pm to 2.00 am Irish time; and
(b) unscheduled maintenance performed outside Business Hours, provided that Outmin has used reasonable endeavours to give the Customer at least 6 Business Hours’ notice in advance.
5.3 Outmin will, as part of the Software Services, and in consideration of the fees set out in Schedule 3, provide the Customer with Outmin’s standard customer support services during Business Hours. Outmin may amend the support services in its sole and absolute discretion from time to time.
6 Third party providers
7 Outmin’s responsibilities
7.1 Outmin shall use reasonable endeavours to provide the Services, and deliver the Deliverables to the Customer in all material respects.
7.2 Outmin undertakes that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.
7.3 The undertaking at clause 7.2 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to Outmin’s instructions, or modification or alteration of the Services by any party other than Outmin or Outmin’s duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, Outmin will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of the undertaking set out in clause 7.2.
(a) does not warrant that:
(i) the Customer’s use of the Services will be uninterrupted or error-free; or
(ii) that the Services, Documentation and/or the information obtained by the Customer through the Services will meet the Customer’s requirements; or
(iii) the Software or the Services will be free from Vulnerabilities or Viruses; or
(iv) the Software, Documentation or Services will comply with any Heightened Cybersecurity Requirements.
(b) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
7.5 This Agreement shall not prevent Outmin from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services, which are similar to those provided under this Agreement.
7.6 Outmin warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this Agreement.
8 Customer’s obligations
8.1 The Customer shall:
(a) provide Outmin with:
(i) all necessary co-operation in relation to this Agreement; and
(ii) all necessary access to such information and systems as may be required by Outmin; in order to provide the Services, including but not limited to Customer Data, security access information and configuration services;
(b) without affecting its other obligations under this Agreement, comply with all applicable laws and regulations with respect to its activities under this Agreement;
(c) carry out all other Customer responsibilities set out in this Agreement in a timely and efficient manner. In the event of any delays in the Customer’s provision of such assistance as agreed by the parties, Outmin may adjust any agreed timetable or delivery schedule as reasonably necessary;
(d) register Outmin as their sole tax agent with the Revenue Commissioners or HMRC;
(e) ensure that the Authorised Users use the Services and the Documentation in accordance with the terms and conditions of this Agreement and shall be responsible for any Authorised User’s breach of this Agreement;
(f) obtain and shall maintain all necessary licences, consents, and permissions necessary for Outmin, its contractors and agents to perform their obligations under this Agreement, including without limitation the Services;
(g) ensure that its network and systems comply with the relevant specifications provided by Outmin from time to time; and
(h) be, to the extent permitted by law and except as otherwise expressly provided in this Agreement, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to Outmin’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet.
(i) co-operate with Outmin in all matters relating to the Services;
(j) appoint a manager in respect of the Services to be performed. That person shall have authority to contractually bind the Customer on all matters relating to the relevant Services (including by signing Change Orders);
(k) provide, for Outmin, its agents, subcontractors, consultants and employees, in a timely manner and at no charge, access to the Customer’s premises, office accommodation, data and other facilities as required by Outmin;
(l) provide to Outmin in a timely manner all documents, information, items and materials in any form (whether owned by the Customer or a third party) required or otherwise reasonably required by Outmin in connection with the Services and ensure that they are accurate and complete;
(m) obtain and maintain all necessary licences and consents and comply with all relevant legislation as required to enable Outmin to provide the Services, including in relation to the use of all Customer Materials;
(n) comply with any additional responsibilities of the Customer;
8.2 The Customer shall own all right, title and interest in and to all of the Customer Data that is not personal data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Data.
8.3 If Outmin’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants or employees then, without prejudice to any other right or remedy it may have, Outmin shall not be in breach of its obligations under this Agreement.
9 Subscription Fees and payment
9.1 In consideration of the provision of the Services by Outmin, the Customer shall pay the Subscription Fees to Outmin for the User Subscriptions in accordance with this clause 9 and Schedule 3.
9.2 The Customer shall on the Effective Date provide to Outmin valid, up-to-date and complete credit card details or approved purchase order information acceptable to Outmin and any other relevant valid, up-to-date and complete contact and billing details and, if the Customer provides:
(a) its credit card details to Outmin, the Customer hereby authorises Outmin to bill such credit card:
(i) on the Effective Date for the Subscription Fees payable in respect of the Initial Subscription Term; and
(ii) subject to clause 16.1, on each anniversary of the Effective Date for the Subscription Fees payable in respect of the next Renewal Period;
(b) its approved purchase order information to Outmin, Outmin shall invoice the Customer:
(i) on the Effective Date for the Subscription Fees payable in respect of the Initial Subscription Term; and
(ii) subject to clause 16.1, at least 30 days prior to each anniversary of the Effective Date for the Subscription Fees payable in respect of the next Renewal Period, and the Customer shall pay each invoice within 30 days after the date of such invoice.
9.3 Without prejudice to any other right or remedy that it may have, if the Customer fails to pay Outmin any sum due under this Agreement on the due date and without prejudice to any other rights and remedies of Outmin:
(a) Outmin may, without liability to the Customer, disable the Customer’s password, account and access to all or part of the Services and Outmin shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid;
(b) 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 9 will accrue each day at 4% a year above the ECB base rate from time to time, but at 4% a year for any period when that base rate is below 0%; and
(c) Outmin may suspend part or all of the Services until payment has been made in full.
9.4 All amounts and fees stated or referred to in this Agreement:
(a) shall be payable in Euro;
(b) are, subject to clause 15.3(b), non-cancellable and non-refundable;
(c) are exclusive of VAT, and the Customer shall in addition pay an amount equal to any VAT chargeable on those sums on delivery of a VAT invoice; and
(d) shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
9.5 If, at any time whilst using the Services, the Customer exceeds the amount of disk storage space specified in the Documentation, Outmin shall charge the Customer, and the Customer shall pay, Outmin’s then current excess data storage fees. Outmin’s excess data storage fees current as at the Effective Date are set out in Schedule 3.
9.6 Outmin shall be entitled to increase the fixed Subscription Fees payable by the Customer during the Subscription Term:
(a) in respect of the additional User Subscriptions purchased pursuant to clause 4.3 above;
(b) in respect of the excess storage fees payable pursuant to clause 9.5;
(c) if the Customer exceeds the maximum number of transactions allowable per Business Type under the Reference Charges;
(d) if the Customer exceeds the maximum number of employees allowable per Business Type under the Reference Charges;
9.7 Outmin may also choose to decrease the Subscription Fees upon written notice to the Customer.
10 Intellectual property rights
10.1 The Customer acknowledges and agrees that Outmin and/or its licensors own all intellectual property rights in the Software Services and the Documentation. Except as expressly stated herein, this Agreement does not grant the Customer any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of the Services or the Documentation.
10.2 Outmin confirms that it has all the rights in relation to the Software Services and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this Agreement.
10.3 In relation to the Deliverables:
(a) Outmin and its licensors shall retain ownership of all IPRs in the Deliverables, excluding the Customer Materials;
(b) Outmin grants the Customer, or shall procure the direct grant to the Customer of, a fully paid-up, worldwide, non-exclusive, royalty-free licence during the term of this Agreement to copy and modify the Deliverables (excluding the Customer Materials) for the purpose of receiving and using the Services and the Deliverables in its business; and
(c) the Customer shall not sub-license, assign or otherwise transfer the rights granted in clause 10.1(b):
(i) to its Affiliates and customers; and
(ii) to third parties for the purpose of the Customer’s receipt of services similar to the Services.
10.4 In relation to the Customer Materials, the Customer:
(a) and its licensors shall retain ownership of all IPRs in the Customer Materials; and
(b) grants to Outmin a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify the Customer Materials for the term of this Agreement for the purpose of providing the Services to the Customer.
10.5 Outmin shall indemnify, defend and hold Customer harmless from and against any judgments, settlements, costs and fees reasonably incurred (including reasonable legal fees) resulting from any claim, demand, suit, or proceeding made or brought against Customer by a third party alleging that the use of the Services hereunder infringes or misappropriates the valid intellectual property rights of a third party (a “Claim Against Customer“); provided that Customer:
(a) promptly gives Outmin written notice of the Claim Against Customer;
(b) provides to Outmin all reasonable assistance, at Outmin’s expense.
10.6 Customer shall have no claim under the indemnity at clause 10.5 to the extent the Claim Against Customer arises from:
(a) the use of Customer Materials in the development of, or the inclusion of the Customer Materials in, the Services or any Deliverable;
(b) any modification of the Services or any Deliverable, other than by or on behalf of Outmin; and
(c) compliance with the Customer’s specifications or instructions or Customer’s breach of this Agreement.
10.7 If, as a result of a claim by a third party, the use of the Services, or any part thereof is held to constitute an infringement of the Intellectual Property rights of any third party, or Outmin reasonably anticipates that a claim that use of the Services, or any part of thereof infringes of the Intellectual Property rights of any third party might be made, Outmin may, at its expense and sole option:
(a) procure for the Customer the rights to continue to receive the Services; or
(b) modify the Services so that they are non-infringing without materially detracting from their overall performance; or
(c) replace the infringing element of Services with other non-infringing items that have the equivalent performance and functionality to the infringing element/s.
10.8 If, in Outmin’s opinion, none of the above are commercially reasonable, it shall have a right to immediately terminate this Agreement.
10.9 The Customer:
(a) warrants that the receipt and use in the performance of this Agreement by Outmin, its agents, subcontractors or consultants of the Customer Materials shall not infringe [the rights, including any Intellectual Property Rights, of any third party OR any rights of third parties to the extent that infringement results from copying]; and
(b) shall indemnify Outmin against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred or paid by Outmin arising out of or in connection with any claim brought against Outmin, its agents, subcontractors or consultants for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of, or in connection with, the receipt or use in the performance of this Agreement of the Customer Materials.
10.10 If either party (“Indemnifying Party“) is required to indemnify the other party (“Indemnified Party“) under this clause 10, the Indemnified Party shall:
(a) notify the Indemnifying Party in writing of any claim against it in respect of which it wishes to rely on the indemnity at clause 10.5 or clause 10.9(b) (as applicable) (“IPRs Claim“);
(b) allow the Indemnifying Party, at its own cost, to conduct all negotiations and proceedings and to settle the IPRs Claim, always provided that the Indemnifying Party shall obtain the Indemnified Party’s prior approval of any settlement terms, such approval not to be unreasonably withheld;
(c) provide the Indemnifying Party with such reasonable assistance regarding the IPRs Claim as is required by the Indemnifying Party, subject to reimbursement by the Indemnifying Party of the Indemnified Party’s costs so incurred; and
(d) not, without prior consultation with the Indemnifying Party, make any admission relating to the IPRs Claim or attempt to settle it, provided that the Indemnifying Party considers and defends any IPRs Claim diligently, using competent counsel and in such a way as not to bring the reputation of the Indemnified Party into disrepute.
11 Compliance with laws
In performing its obligations under this Agreement, Outmin shall comply with Applicable Laws.
12 Data protection
12.1 The Data Processing Addendum applies to all processing of personal data by Outmin as processor in connection with this Agreement (personal data and processor shall have the meaning given to them in the GDPR).
12.2 Outmin will comply with all applicable requirements of Applicable Data Protection Laws.
12.3 Customer shall comply with all laws, statutes, regulation guidance, orders or directions issued from time to time by any court, government or other competent regulatory authority applicable to the processing of personal data by it or on its behalf.
12.4 Customer shall provide all relevant data subjects with any information required for compliance with Applicable Data Protection Laws in relation to the processing of personal data by it and/or Outmin in connection with this Agreement.
12.5 Data subject, personal data and processor shall have the meaning given to them in the GDPR.
13.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under this Agreement. A party’s Confidential Information shall not be deemed to include information that:
(a) is or becomes publicly known other than through any act or omission of the receiving party;
(b) was in the other party’s lawful possession before the disclosure;
(c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
(d) is independently developed by the receiving party, which independent development can be shown by written evidence.
13.2 Subject to clause 13.4, each party shall hold the other’s Confidential Information in confidence and not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of this Agreement.
13.3 Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement.
13.4 A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 13.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
13.5 The Customer acknowledges that details of the Services, and the results of any performance tests of the Services, constitute Outmin’s Confidential Information.
13.6 Outmin acknowledges that the Customer Data is the Confidential Information of the Customer.
13.7 No party shall make, or permit any person to make, any public announcement concerning this Agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
13.8 The above provisions of this clause 11 shall survive termination of this Agreement, however arising.
14.1 The Customer shall defend, indemnify and hold harmless Outmin against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer’s use of the Services and/or Documentation, provided that:
(a) the Customer is given prompt notice of any such claim;
(b) Outmin provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer’s expense; and
(c) the Customer is given sole authority to defend or settle the claim.
14.2 Outmin shall defend the Customer, its officers, directors and employees against any claim that the Customer’s use of the Services or Documentation in accordance with this Agreement infringes any Irish or European Union patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:
(a) Outmin is given prompt notice of any such claim;
(b) the Customer does not make any admission, or otherwise attempt to compromise or settle the claim and provides reasonable co-operation to Outmin in the defence and settlement of such claim, at Outmin’s expense; and
(c) Outmin is given sole authority to defend or settle the claim.
14.3 In the defence or settlement of any claim, Outmin may procure the right for the Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this Agreement on 5 Business Days’ notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.
14.4 In no event shall Outmin, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:
(a) a modification of the Services or Documentation by anyone other than Outmin; or
(b) the Customer’s use of the Services or Documentation in a manner contrary to the instructions given to the Customer by Outmin; or
(c) the Customer’s use of the Services or Documentation after notice of the alleged or actual infringement from Outmin or any appropriate authority.
14.5 The foregoing and clause 15.3(b) states the Customer’s sole and exclusive rights and remedies, and Outmin’s (including Outmin’s employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
15 Limitation of liability
15.1 Except as expressly and specifically provided in this Agreement:
(a) the Customer assumes sole responsibility for results obtained from the use of the Services and the Documentation by the Customer, and for conclusions drawn from such use. Outmin shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Outmin by the Customer in connection with the Services, or any actions taken by Outmin at the Customer’s direction;
(b) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement; and
(c) the Services and the Documentation are provided to the Customer on an “as is” basis.
15.2 Nothing in this Agreement excludes the liability of Outmin for:
(a) death or personal injury caused by Outmin’s negligence; or
(b) fraud or fraudulent misrepresentation;
(c) any other liability which cannot, pursuant to Applicable Law, be excluded or limited
15.3 Subject to clauses 15.1 – 15.3:
(a) Outmin shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this Agreement; and
(b) Outmin’s total aggregate liability in contract (including in respect of the indemnity at clause 14.2), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to the total Subscription Fees paid for the User Subscriptions during the Initial Subscription Term or Renewal Period in which the claim arose.
15.4 Nothing in this Agreement excludes the liability of the Customer for any breach, infringement or misappropriation of Outmin’s Intellectual Property Rights.
16.1 This Agreement shall, unless otherwise terminated as provided in this clause 16, commence on the Effective Date and shall continue for the Initial Subscription Term and, thereafter, this Agreement shall be automatically renewed for successive periods of 12 months or 1 months in line with the Customer’s chosen subscription period (each a “Renewal Period“), unless:
(a) either party notifies the other party of termination, in writing, at least 30 days before the end of the Initial Subscription Term or any Renewal Period, in which case this Agreement shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or
(b) otherwise terminated in accordance with the provisions of this Agreement; and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the “Subscription Term“.
16.2 Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving 30 days written notice to the other party if:
(a) the other party commits a material breach of any term of this Agreement and (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
(b) the other party repeatedly breaches any of the terms of this Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Agreement;
(c) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 570 of the Companies Act 2014 (“CA 2014“).
(d) the other Party becomes or is deemed insolvent, has a receiver, manager, examiner, or similar officer appointed in respect of the whole or any part of its assets or business, makes any composition or arrangement with its creditors, takes or suffers any similar action in consequence of debt, or an order or resolution is made for its dissolution or liquidation (other than for the purpose of solvent amalgamation or reconstruction to which the non-terminating party has previously agreed in writing), enters into liquidation (whether compulsory or voluntary), or suffers or undergoes any analogous process to the above in any jurisdiction;
(e) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with any of its creditors;
(f) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the other party (being a company, limited liability partnership or partnership);
(g) an application is made to court, or an order is made, for the appointment of an administrator, or a notice of intention to appoint an administrator is given or an administrator is appointed, over the other party (being a company, partnership or limited liability partnership);
(h) the holder of a qualifying floating charge over the assets of that other party (being a company or limited liability partnership) has become entitled to appoint or has appointed an administrative receiver;
(i) a person becomes entitled to appoint a receiver over all or any of the assets of the other party or a receiver is appointed over all or any of the assets of the other party;
(j) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within 14 days;
(k) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 16.1(d) to clause 16.1(k) (inclusive);
(l) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or
(m) the other party’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of this Agreement is in jeopardy.
16.3 Outmin may terminate this Agreement with immediate effect without cause by giving 30 days written notice to the Customer.
16.4 Without affecting any other right or remedy available to it, Outmin may terminate this Agreement with immediate effect by giving 30 days written notice to the Customer if:
(a) the Customer fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment;
(b) the Customer fails to provide any information or materials as Outmin may at their discretion deem essential to the proper provision of the Services to the Customer and fails to provide any outstanding information or materials requested not less than 30 days after being notified in writing to do so by Outmin;
(c) the Customer fails to register Outmin as their sole tax agent with the Revenue Commissioners or the HMRC and fails to rectify this not less than 30 days after being notified in writing to do so by Outmin; or
(d) there is a change of Control of the Customer.
17 Obligations on termination and survival
17.1 On termination or expiry of this Agreement:
(a) all licences granted under this Agreement shall immediately terminate and the Customer shall immediately cease all use of the Software Services and/or the Documentation;
(b) the Customer shall immediately pay to Outmin all of Outmin’s outstanding unpaid invoices and interest and, in respect of the Services supplied but for which no invoice has been submitted, Outmin may submit an invoice, which shall be payable immediately on receipt;
(c) each party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party;
(d) Outmin may destroy or otherwise dispose of any of the Customer Data in its possession unless Outmin receives, no later than ten days after the effective date of the termination of this Agreement, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data. Outmin shall use reasonable commercial endeavours to deliver the back-up to the Customer within 30 days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer shall pay all reasonable expenses incurred by Outmin in returning or disposing of Customer Data;
(e) Outmin shall on request return any of the Customer Materials not used up in the provision of the Services.
(a) On termination or expiry of this Agreement, all existing Subscription Terms shall terminate automatically.
(b) Any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this Agreement shall remain in full force and effect.
(c) Termination or expiry of this Agreement shall not affect or prejudice 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.
18 Force majeure
18.1 Force Majeure Event means any circumstance not within a party’s reasonable control including, without limitation:
(a) acts of God, flood, drought, earthquake or other natural disaster;
(b) epidemic or pandemic (which, for the avoidance of doubt, shall include any further outbreak, wave, spike or peak of the coronavirus 2 (SARS-CoV-2) pandemic, notwithstanding the Parties’ awareness of such pandemic at the time of entering into a Subscription Term);
(c) terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations;
(d) nuclear, chemical or biological contamination or sonic boom;
(e) any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition, or failing to grant a necessary licence or consent;
(f) collapse of buildings, fire, explosion or accident; and
(g) interruption or failure of utility service.
18.2 Save in respect of the Customer’s obligation to pay the Subscription Fees, provided it has complied with clause 18.4, if a party is prevented, hindered or delayed in or from performing any of its obligations under this Agreement by a Force Majeure Event (“Affected Party“), the Affected Party shall not be in breach of this Agreement or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.
18.3 The corresponding obligations of the other party will be suspended, and its time for performance of such obligations extended, to the same extent as those of the Affected Party.
18.4 The Affected Party shall:
(a) as soon as reasonably practicable after the start of the Force Majeure Event but no later than 30 days from its start, notify the other party in writing of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of its obligations under the Agreement; and
(b) use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.
18.5 If the Force Majeure Event prevents, hinders or delays the Affected Party’s performance of its obligations for a continuous period of more than 30 days, or recurs more than twice in any single 60-day period, the party not affected by the Force Majeure Event may terminate this Agreement by giving 30 days written notice to the Affected Party.
19 Assignment and other dealings
19.1 The Customer shall not, without the prior written consent of Outmin, assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under this Agreement.
19.2 Outmin may at any time assign, mortgage, charge, delegate, declare a trust over or deal in any other manner with any or all of its rights under this Agreement, provided that Outmin gives prior written notice of such dealing to the Customer.
No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
21.1 A waiver of any right or remedy under this Agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
21.2 A failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it 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 this Agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.
21.3 A party that waives a right or remedy provided under this Agreement or by law in relation to one party, or takes or fails to take any action against that party, does not affect its rights in relation to any other party.
22 Rights and remedies
Except as expressly provided in this Agreement, the rights and remedies provided under this Agreement are not in addition to, and are exclusive of, any rights or remedies provided by law.
23.1 If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Agreement.
23.2 If any provision or part-provision of this Agreement is deemed deleted under clause 23.1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
24 Entire agreement
24.1 This Agreement 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.
24.2 Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in this Agreement.
24.3 Nothing in this clause shall limit or exclude any liability for fraud.
If there is an inconsistency between any of the provisions of this Agreement and the provisions of the Schedules, the provisions of this Agreement shall prevail.
26 No partnership or agency
26.1 Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
26.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
27 Third party rights
27.1 Unless it expressly states otherwise, this Agreement does not give rise to any rights to third parties to enforce any term of this Agreement.
27.2 The rights of the parties to rescind or vary this Agreement are not subject to the consent of any other person.
28.1 Any notice given to a party under or in connection with this Agreement shall be in writing and shall be:
(a) delivered by hand or by pre-paid registered post or other next Business Day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
(b) sent by email to the address specified in a User Subscription or such addresses as otherwise notified in writing from time to time in accordance with this clause, except for a notice given to a Party under clause 16 (Termination) of this Agreement which may not be given by email and may only be given by hand or by registered post.).
28.2 Any notice or communication shall be deemed to have been received:
(a) if delivered by hand, at the time the notice is left at the proper address;
(b) if sent by pre-paid registered post or other next Business Day delivery services, at 9.00 am on the second Business Day after posting; or
(c) if sent if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 28.2(c), business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
28.3 This clause does not apply to the service of any proceedings or any documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
29 Dispute Resolution
29.1 If a dispute arises out of or in connection with this Agreement of the performance, validity or enforceability of it (“Dispute“), the parties shall follow the Parties shall follow the dispute resolution procedure set out in this clause:
(a) either party shall give to the other written notice of the Dispute, setting out its nature and full particulars (“Dispute Notice“), together with relevant supporting documents;
(b) upon receipt of the Dispute Notice, the Parties shall promptly attempt in good faith to resolve the Dispute;
(c) if for any reason the Parties are unable to resolve the Dispute within 30 days of it being referred to them, the parties will attempt to settle it by mediation in accordance with the Centre for Effective Dispute Resolution (“CEDR“) Model Mediation Procedure. Unless otherwise agreed between the parties, the mediator shall be nominated by CEDR. To initiate the mediation, a party must serve notice in writing (“ADR Notice“) to the other party to the Dispute, requesting a mediation. A copy of the ADR Notice should be sent to CEDR. The mediation will start not later than 30 days after the date of the ADR Notice.
29.2 The commencement of mediation shall not prevent the parties commencing or continuing court proceedings in relation to the Dispute under clause 32 which clause shall apply at all times.
29.3 If the Dispute is not resolved within 60 days after service of the ADR notice, or either party fails to participate or to continue to participate in the mediation before the expiration of the said period of 60 days, or the mediation terminates before the expiration of the said period of 60 days, the Dispute shall be finally resolved by the courts of Ireland in accordance with clause 32.
30 Consent to Contract
The Parties consent to contract electronically in accordance with the Electronic Commerce Act 2000 and the EU Electronic Identification and Trust Services for Electronic Transactions in the Internal Market Regulation 2014.
31 Governing law
This Agreement and any dispute or claim (including non-contractual 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 law of Ireland.
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 this Agreement or its subject matter or formation.
Schedule 1 – Services
1 Outmin may, on the terms of this Agreement and in its absolute discretion, provide (or shall continue to provide) such of the following services (“Accountancy and Administrative Services“) to the Customer as the Customer may from time to time request and as Outmin accepts through the Software Services.
2 Outmin shall use reasonable endeavours to provide the following Accountancy and Administrative Services via the Software Services:
(a) Data entry and processing of Customer invoices, expenses, receipts, payments and bank statements.
2.2 Company Secretarial and Formation
(a) Company setup and registration with the Companies Registration Office (“CRO“) or the Companies House (“CH“)
(b) Provision of a company secretary
(c) Attendance at board meetings
(d) Maintenance of the statutory books and records of the Customer
2.3 Compliance Filings
(a) Agreed CRO filings under the Companies Act 2014 including preparation and submission of annual company filings with the CRO, or the equivalent UK legislation as mandated by CH
2.4 Financial Reporting Services
(a) Preparation of Quarterly Management Accounts
(b) Preparation of annual statutory financial statements in accordance with the local GAAP
(c) Submission of financial statements prepared by Outmin to local authorities
(d) Liaising with auditors, directors and other parties regarding the finalisation and approval of the statutory financial statements
2.5 Real-time Business KPI Dashboards and Management Accounts
(a) Provision of balance sheets, profit, loss and cash flow forecasts
(b) Provision of a KPI dashboard to display unique Customer financial information
(a) Calculation of payroll
(b) Issuance of payments and payslips
(c) Provision of gross to net reports
(d) Prepare payroll tax returns
2.7 R&D Tax Credit Management
(a) Outmin will assist Customer in preparation of R&D tax credit.
2.8 Tax Assistance Services
(a) Registration for tax heads and provide related information to the Irish Revenue Commissioners or HMRC
(b) Assist the Customer in an administrative capacity in dealing with any correspondence or enquiries from any tax authority.
(c) Assist the Customer in arranging for the payment of any tax due to be paid to any tax authority.
(d) Assist and liaise with external tax advisors in the preparation of tax returns in respect of income tax, PAYE and VAT.
(e) prepare, in respect of each accounting period of the company, a computation for corporation tax purposes adjusted in accordance with the provisions of the Taxes Acts.
(f) prepare the return form CT1 and subsidiary forms required by self-assessment. The self-assessment forms together with the supporting corporation tax computations, will be sent to the Customer for written approval and signature prior to submission to the Revenue Commissioners or HMRC in the required iXBRL format.
(g) advise as to appropriate payments of corporation tax.
Schedule 2 – Accountancy and Administrative Services Terms
1 The following additional terms and conditions apply to the provision, and receipt of, the Accountancy and Administrative Services pursuant to the Agreement (the “Accountancy and Administrative Services Terms“).
2 Any terms used in these Accountancy and Administrative Services Terms without definition, shall have the meanings assigned to them in the Agreement and vice versa.
3 For the purposes of the Accountancy and Administrative Service Terms “Customer Records” means all official books and records pertaining to Customer maintained by Outmin or any Outmin Affiliate solely in relation to the provision of the Services, including customary financial books and records such as the general ledger, trial balance, income statement, balance sheet and financial statements.
4 Companies Act 2014 requirements
4.1 Nothing in this Agreement will alter the Customer’s directors’ responsibility for keeping adequate accounting records that are sufficient to correctly record and explain the transactions of the company and enable, at any time, the assets, liabilities, financial position and profit or loss of the company to be determined with reasonable accuracy and to ensure that the financial statements and any directors’ report prepared comply with the Companies Act 2014. The Customer directors are responsible for ensuring that the company maintains proper accounting records and for preparing financial statements which give a true and fair view and have been prepared in accordance with the Companies Act 2014.
4.2 Outmin shall prepare the Customer’s financial statements in accordance with the requirements of the Companies Act 2014. Outmin will compile the annual financial statements for Customer approval based on the accounting records maintained by Customer and the information and explanations given to Outmin by Customer. Outmin shall plan its work on the basis that no report on the financial statements is required by statute or regulation for the year, unless Customer notify Outmin in writing to the contrary. In carrying out its engagement, Outmin will make enquiries of management and undertake any procedures that we judge appropriate but are under no obligation to perform procedures that may be required for assurance engagements such as audits or reviews.
4.3 Customer is responsible for determining whether, in respect of the year, the company meets the conditions for exemption from an audit of the accounts set out in section 358 (non-group) or 359 (group) of the Companies Act 2014, and for determining whether, in respect of the year, the exemption is not available for any of the reasons set out in sections 361, 362, 363 (non-group) and 364 (group).
5 Books and Records
5.1 All Customer Records shall be the exclusive property of the Customer. All such Customer Records shall, in accordance with the instructions of the directors of the Customer be delivered to duly appointed successors to Outmin upon termination of this Agreement. Subject to the provisions of this clause, at the reasonable request and at the documented expense of the requesting party, Outmin shall deliver copies of all Customer Records and other documents relating to the Customer in its possession to the Customer or its Affiliates.
5.2 Customer, or its Affiliate, shall have the right, upon reasonable notice and during Business Hours, to inspect the Customer Records, wherever located. Subject to the next sentence, Outmin may comply with a request from a Regulatory Authority to inspect the Customer Records. If Outmin receives any request or demand (including pursuant to a request from a Regulatory Authority) for the inspection of any Customer Records, Outmin will, to the extent legally permissible, promptly notify the Customer in writing to secure instructions from the Customer as to such inspection. Unless, in the reasonable opinion of Outmin, abiding with any such instructions received from the Customer would result in a breach of any Applicable Law, order or regulation to which Outmin is subject, Outmin shall abide by the Customer’s instructions for granting or denying the inspection, provided that Outmin may grant the inspection without instructions or in contravention of specific instructions if Outmin is advised by legal counsel to Outmin or the Customer that failure to do so would result in Outmin incurring any liability or being in breach of any Applicable Law, order or regulation to which Outmin is subject.
5.3 From time to time and upon the termination of the Agreement, the Customer may request delivery of Customer Records. In recognition of the volume of Customer Records which Outmin may possess, the Customer and Outmin will agree as to the reasonable costs, documented expenses and charges (if any) which may be payable based on the scope of such request. The costs, documented expenses and charges shall include costs associated with engaging Outmin’s personnel to compile, pack and ship Customer Records and the costs and documented expenses involved in copying and engaging a courier service to ship the Customer Records. The amounts payable under this Section shall be payable within 30 days of receipt of an invoice from Outmin. Outmin shall deliver to the Customer or as it may direct the requested Customer Records.
5.4 Outmin shall retain all Customer Records and shall maintain and preserve such records (a) for at least seven (7) years from the termination of this Agreement or (b) until they are delivered to duly appointed successors to Outmin upon termination of this Agreement. Notwithstanding anything to the contrary in this Agreement, the directors may require that the Customer Records be maintained and preserved for a longer period than contemplated by the preceding sentence in which case Outmin shall deliver to the Customer the Customer Records that would otherwise be maintained and preserved by Outmin.
6 Financial statements
6.1 In preparing financial statements, Customer is required to:
(a) select suitable accounting policies and then apply them consistently;
(b) make judgements and estimates that are reasonable and prudent; and
(c) prepare the financial statements on the going concern basis unless it is inappropriate to presume that the company will continue in business.
6.2 Customer has a responsibility not to approve financial statements unless satisfied that they give a true and fair view of the assets, liabilities, financial position and profit and loss of the company.
6.3 Customer responsibility for preparation of the financial statements extends to the application of exemptions and options on transition to, and application of, new accounting standards. As directors of the company you should also consider the impact of new accounting standards on the business, including the impact on going concern.
7.1 Outmin’s work will not be an audit of the financial statements in accordance with the International Standards on Auditing (Ireland). As such, Outmin’s work will not provide any assurance that the accounting records or the financial statements are free from material misstatement, whether caused by fraud, other irregularities or error and cannot be relied on to identify weaknesses in internal controls.
7.2 As Outmin will not carry out an audit, nor confirm in any way the accuracy or reasonableness of the accounting records maintained by Customer, it is unable to provide any assurance as to whether the financial statements that it prepares from those records present a true and fair view. Outmin will, however, advise Customer on whether its records are adequate for the preparation of financial statements and recommend improvements.
7.3 Where Outmin identifies that the financial statements do not conform to the Companies Act 2014 and UK and Irish Accounting Standards (UK and Irish Generally Accepted Accounting Practice (UK and Irish GAAP) or if the accounting policies adopted are not immediately apparent this will need to be disclosed in the financial statements.
7.4 Outmin shall not carry out an audit or review engagement procedures in relation to the unaudited financial statements or management accounts, as applicable, and shall express no assurance on the financial information contained in the unaudited financial statements or management accounts, as applicable, prepared by Outmin.
8.1 Customer is responsible for safeguarding the assets of the company and hence for taking reasonable steps for the prevention and detection of fraud and other irregularities.
8.2 Customer is responsible for ensuring that the company complies with the laws and regulations that apply to its activities, and for preventing non-compliance and for detecting any that occurs.
8.3 Customer must undertake to make available to Outmin, as and when required, all the company’s accounting records and related financial information, including minutes of management and shareholders’ meetings necessary for the compilation of the accounts. Customer will make full disclosure to Outmin of all relevant information.
8.4 Where financial information is to be published, which includes a report prepared by Outmin or is otherwise connected to Outmin, on the Customer’s website or by other electronic means, Customer is responsible for advising Outmin of the intended electronic publication before it occurs and to ensure that any such publication properly presents the financial information and the report. Outmin reserves the right to withhold consent to the electronic publication of the report if it, or the financial statements, are to be published in an inappropriate manner. It is Customer responsibility to ensure there are controls in place to prevent or detect quickly any changes to that information. Outmin is not required to review such controls nor to carry out ongoing reviews of the information after it is first published. The maintenance and integrity of the Customer’s website is its own responsibility and Outmin accepts no responsibility for changes made to such information after it is first posted.
8.5 Should Outmin become aware, for any reason, that the financial statements may be misleading, Outmin will discuss the matter with Customer with a view to agreeing appropriate adjustments and/or disclosures in the financial statements. In circumstances where adjustments and/or disclosures that Outmin consider appropriate are not made or where Outmin has not been provided with appropriate information, and as a result considers that the financial statements are misleading, Outmin will withdraw from the engagement.
8.6 Outmin may request that Customer provides written confirmation of any information or explanations given orally during the course of our work.
8.7 If Customer elects to omit certain or substantially all disclosures (if relevant) or if it elects to depart from the identified reporting framework, Outmin shall be entitled to include an additional paragraph, in whatever form it considers appropriate, in financial statements drawing attention to such matter.
8.8 Customer shall communicate any reporting deadlines to Outmin at least two (2) calendar months before such reporting deadline (as agreed between the Parties in writing) arises.
8.9 Customer is responsible for both the accuracy and completeness of the information supplied to Outmin and is responsible to the users of any information compiled by Outmin. This includes the maintenance of adequate accounting records and internal controls and the selection and application of appropriate accounting policies. Outmin is not responsible for disclosing whether any errors, illegal acts or other irregularities (for example fraud or defalcations) may exist. However, Outmin shall inform Customer of any such matters which come to its attention.
8.10 It is agreed that any financial information compiled by Outmin in performing the Services is intended for internal use only and Customer agrees to promptly inform Outmin if the intended use and distribution should change in any material respect. Unless Outmin gives prior express written consent, any distribution of such financial information compiled by Outmin in whole or in part (whether to obtain credit or for any other purpose, including forming a part of a public offering document or a registration statement) to a party other than the Customer and its directors, shareholder(s) or the customer’s auditor is expressly prohibited.
9 Form of the accountants’ report
9.1 Outmin shall report to the Customer’s board of directors, with any modifications that it considers may be necessary, that in accordance with this Agreement, Outmin has compiled, without carrying out an audit, the financial statements from the Customer accounting records and from the information and explanations supplied to Outmin. To the fullest extent permitted by law, Outmin does not accept or assume responsibility to anyone other than Customer and the Customer’s board of directors, as a body, for the Services or for the report.
10 Supplementary terms of engagement will be required in the following circumstances:
10.1 If Customer is selected for enquiry by Revenue or HMRC, and Customer requires Outmin to manage the enquiry process; and
10.2 If Customer seeks advise on matters relating to the company’s corporation tax liability, the implications or particular business transactions and on other taxation matters which you refer to us, such as national insurance, income tax deducted at source, employee benefits, value added tax and inheritance tax.
Schedule 3 – Reference Charges, Subscription Fees and payment terms
1 Initial Subscription Term
1.1 The Initial Subscription Term shall be for a period of one month (30 days) or one year, depending on the Subscription Term chosen by the Customer when subscribing for the Services.
2 Subscription Fees
2.1 The Subscription Fees shall be payable monthly or annually in accordance with the up-to-date price list available at www.outmin.io.
2.2 The Subscription Fee will remain fixed during the Subscription Term unless (i) you exceed your maximum number of transactions; or (ii) you exceed your maximum number of employees per Business Type. Outmin may also choose to decrease your fees upon written notice to you. Customer can access information about how Subscription Fees may be adjusted in the pricing section of your Outmin account portal.
2.3 At each Renewal Period, Outmin may increase Customer’s Subscription Fees in accordance with the most up-to-date price list. Outmin will notify you at least thirty (30) days in advance of your renewal and the increased fees will apply at the start of the next renewal term. If you do not agree to this increase, either party can choose to terminate the User Subscription at the end of the Subscription Term by giving the required notice under clause 16.
3 Additional User Subscription Fees
Additional User Subscriptions may be purchased by the Customer in accordance with clause 5.3 above at €10 per User Subscription.
4 Excess Storage Fees
Outmin’s excess storage fees current as at the Effective Date will be decided on a case-by-case basis.
Schedule 4 – Data Processing Addendum
DATA PROCESSING ADDENDUM
This Data Processing Addendum (“DPA”) will apply from 08/06/2021 and will be deemed to be incorporated into all agreements and contracts pursuant to which Outmin Limited and any of its subsidiaries t/a Outmin provides it services by acting as a ‘processor’ as defined in Article 4(8) of GDPR. Services which Outmin provides by acting as a ‘processor’ encompasses entity formation/registration services, corporate administration and secretarial services, and other like services where the role performed by Outmin can be characterised as an outsourced function which Outmin fulfils by exercising relatively little autonomy or discretion. For the avoidance of doubt, this DPA will not apply where Outmin acts as a ‘controller’ (as defined by Article 4(7) of GDPR) in providing the service.
1.1 For purposes of this Data Processing Addendum (“DPA“), unless the context requires otherwise, terms defined in the Agreement shall have the meaning given to them in the Agreement and the following terms shall have the following meanings:
1.2 “Data Protection Laws” means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of Personal Data and on the free movement of such data (the “GDPR“), the GDPR as transposed into the laws applicable in the United Kingdom (“UK GDPR“) and any regulations or enactments thereunder, and all applicable laws and regulations relating to the Processing of Personal Data, and the equivalent of any of the foregoing in any relevant jurisdiction within the European Union and/or the United Kingdom(in each case, to the extent applicable), each as amended, replaced or superseded from time to time.
1.3 The terms “Controller“, “Data Subject“, “Personal Data“, “Personal Data Breach“, “Processing“, “Processor” and “Supervisory Authority” shall have the meanings given to them in Data Protection Law, and “Process” and “Processed” shall be construed accordingly.
1.4 Existing Sub-processor means the third party sub-processors set out in Schedule 1 to this Data Processing Addendum.
1.5 Standard Contractual Clauses means the standard contractual clauses annexed to the EU Commission Decision 2010/87/EU of 5 February 2010 for the transfer of personal data to processors established in third countries, or any other standard contractual clauses issued by the EU Commission which replace such the standard contractual clauses from time to time will apply to data that is transferred to a Processor outside the European Economic Area (“EEA“), either directly or via onward transfer, to any country not recognised by the European Commission as providing an adequate level of protection for personal data (as described in the applicable Data Protection Laws).
2 PROCESSING DETAILS
2.1 Personal Data and Categories of Data Subjects. The parties acknowledge that Outmin may Process email addresses of super-administrators, device location data (e.g. via GPS and cell tower locations) and MAC addresses of devices of Data Subjects provided to it by, or on behalf of, Customer. Such Data Subjects shall include users of Customer’s services on which Customer has deployed Products and/or Services provided by Outmin.
2.2 Subject Matter, Nature and Purpose of Processing. Outmin shall Process the MAC Addresses for the purposes of the provision of the Services in accordance with the Agreement.
2.3 Duration. Outmin shall Process the MAC Addresses for Term and until such time as Customer or Outmin deletes the Personal Data in accordance with Section 9 of this Data Processing Addendum.
2.4 Outmin as Processor. If, and to the extent, the MAC addresses Processed by Outmin pursuant to this Agreement are Personal Data, the parties record their intention that Outmin shall be a Processor and Customer shall be a Controller of such Personal Data and any other Personal Data that the parties agree in writing shall be Processed by Outmin on Customer’s behalf in connection with the provision of the Services (“Customer Personal Data“).
3 CUSTOMER’S OBLIGATIONS
3.1 Customer represents, warrants and undertakes that Customer (a) has and will continue at all times to have in place all fair processing notices, (where applicable) consent mechanisms for Data Subjects and other measures required to ensure that all processing of Customer Personal Data on Customer’s behalf contemplated pursuant to this Agreement, shall be lawful and shall not contravene the applicable Data Protection Laws and (b) shall ensure that its instructions comply with applicable law.
4.1 Documented Instructions. Outmin will only act on documented instructions from Customer regarding the Processing of Customer Personal Data pursuant to this Agreement, which shall be to process the Customer Personal Data for the purposes set out in Section 3 of this Data Processing Addendum above unless required to do so by Union or Member State law to which Outmin is subject and in such a case, Outmin shall inform Customer of that legal requirement before Processing, unless that law prohibits such information on important grounds of public interest.
4.2 Infringing Instructions. Without prejudice to Customer’s obligation pursuant to Section 3, Outmin shall (a) immediately inform Customer if instructions given by Customer, in Outmin’ opinion, infringe the GDPR or applicable Union or Member State data protection provisions and (b) be entitled to suspend provision of the Services, without liability to Customer, pending withdrawal or written amendment of the instructions.
5 CONFIDENTIALITY AND SECURITY OF PROCESSING
5.1 Confidentiality. Outmin will ensure that persons authorized to Process the Customer Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
5.2 Security. Outmin will take the technical and organisational measures against unauthorised or unlawful Processing of the Customer Personal Data or its accidental loss, destruction or damage specified in Schedule 2 to this Data Processing Addendum. Without prejudice to Outmin’ right pursuant to Section 3.6 of the Agreement, Customer agrees that taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, are appropriate technical and organisational security measures for the purposes of Data Protection Laws.
5.3 Personal Data Breach. Outmin will notify Customer without undue delay after becoming aware of a Personal Data Breach, and provide Customer with reasonable co-operation and assistance as may be required to mitigate against the effects of any such breach. Such notification shall contain the details of a contact point where more information concerning the Personal Data Breach can be obtained, a description of the nature of the breach (including, where possible, categories and approximate number of data subjects and data records concerned), its likely consequences and the measures taken or proposed to be taken to mitigate its possible adverse effects. Where, and insofar as, it is not possible to provide all information at the same time, the initial notification shall contain the information then available and further information shall be provided as it becomes available without undue further delay.
5.4 Notification Assistance. Taking into account the nature of the Processing and the information available to Outmin, Outmin shall assist Customer with Customer’s obligation to notify a Personal Data Breach to a competent Supervisory Authority and/or impacted Data Subject to the extent such breach arising in connection with the Services and is notifiable pursuant to applicable Data Protection Laws.
6 ASSISTANCE AND COMPLIANCE
6.1 Data Subject Rights. Taking into account the nature of the Processing and the information available to Outmin, Outmin shall provide assistance, where applicable (a) including by using appropriate technical an organizational measures, insofar as this is possible, for the fulfilment, as applicable, of Customer’s obligation to respond to requests for exercising the data subject rights laid down in Chapter III of the GDPR or the UK GDPR and (b) with Customer’s obligation to carry out data protection impact assessment and consult with the competent Supervisory Authority in connection with such data protection impact assessment.
6.2 Compliance. Customer (or its authorized representative(s)) shall be entitled, at reasonable times and on reasonable notice, to request that Outmin’ respond to compliance questions to verify Outmin’ compliance with this Data Processing Addendum. Outmin shall, at reasonable times, on reasonable notice and at Customer’s expense, make available to Customer information reasonably necessary to demonstrate compliance with the obligations set out in this Data Processing Addendum and at Customer’s expense and request, allow for and contribute to reviews of audits of the Processing covered by this Data Processing Addendum.
6.3 Professional Services. All assistance provided pursuant to this Data Processing Addendum shall be deemed to be Professional Services and shall be billed to Customer in accordance with Outmin’ then-current time-and-material fees
7.1 General Authorisation. Outmin has Customer’s general authorisation for the engagement of sub-processors including the Existing Sub-Processors.
7.2 Changes to Sub-Processors. Outmin may, from time to time, remove or replace the then current Existing Sub-Processors or appoint new third parties to sub-process Customer Personal Data on its behalf in the provision of the Services provided that (i) such an arrangement is governed by a written agreement which contains terms which are comparable to the terms of this Data Processing Addendum; and (ii) Outmin notifies Customer of any new sub-processors prior to their appointment thereby giving Customer an opportunity to object to their appointment. If Customer (a) does not object within 10 days of receipt of notice it will be deemed to have no objection or (b) in good faith, objects to a change to Existing Sub-Processors, Outmin shall seek to address Customer’s objections and may, if such objections are not resolved within 10 days of receipt of notice of an objection, without liability to Customer, terminate the Services, in whole or part, to the extent such objection, in Outmin’ sole discretion, impacts its ability to provide the Services.
7.3 Data Processing Addendum. Where any approved sub-processor of Outmin will be Processing the Customer Personal Data on behalf of Customer, it will ensure that a written contract exists between Outmin and the sub-contractor containing clauses equivalent to those imposed on Outmin in this Data Processing Addendum.
7.4 Liability. Outmin shall remain fully responsible to Customer for the performance of its sub-processor’s obligations.
8 TRANSFERS OUTSIDE OF THE EEA
8.1 General. The parties acknowledge and agree Outmin may from time to time transfer Customer Personal Data outside of the EEA, Switzerland and/or the United Kingdom in performing its obligations under this Agreement.
8.2 Transfers by Customer to Outmin. Schedule 3 this Data Processing Addendum shall apply to any transfers of Customer Personal Data under this Data Processing Addendum from the Customer within the European Union, the EEA, Switzerland and/or the United Kingdom (as long as it is treated like a European Union Member State or as part of the European Economic Area) to Outmin or its Affiliates in countries which do not ensure an adequate level of data protection within the meaning of Data Protection Laws of the foregoing territories.
8.3 Transfers by Outmin. Customer hereby authorises Outmin to enter into Standard Contractual Clauses in its name and on its behalf for any transfer to the extent required for the provision of the Services provided always Customer consents to Outmin relying on other appropriate safeguards permitted by Data Protection Law such as a European Commission adequacy decisions issued in respect of a particular territory.
9 TERMINATION OR EXPIRY OF THE AGREEMENT
Schedule 1 – Existing Sub-Processors
(2) Plaid Financial Limited
Schedule 2 – Technical and Organisational Measures
Description of the technical and organizational security measures implemented by the data importer:
1 Personnel. Data importer’s personnel will not process Customer Data or personal data without authorisation. Personnel are obligated to maintain the confidentiality of any such Customer Data and personal data and this obligation continues even after their engagement ends.
2 Data Privacy Contact. The data privacy contact is [Ross Hunt]. The data privacy contact of the data importer can be reached at the following address:
FAO: Ross Hunt
Dogpatch Labs, The CHQ Building,
North Wall Quay, Dublin, D01 Y6H7
3 Technical and Organization Measures. The data importer has implemented and will maintain appropriate technical and organizational measures, internal controls, and information security routines intended to protect Customer Data and personal data, as defined in the Confidentiality and Security of Processing section of the DPA, against accidental loss, destruction, or alteration; unauthorized disclosure or access; or unlawful destruction as follows: The technical and organizational measures, internal controls, and information security routines set forth in the Confidentiality and Security of Processing section of the DPA are hereby incorporated into this Schedule 2 by this reference and are binding on the data importer as if they were set forth in this Schedule 2 in their entirety.
4 Data Security
4.1 Security Practices and Policies
4.2 Data Encryption
(a) Customer Data (including any Personal Data therein) in transit over public networks between Customer and Outmin is encrypted by default.
4.3 Data Access
(a) Outmin implements employee role-based access controls to ensure that access to Customer Data required for service operations is for an appropriate purpose, for a limited time, and approved with management oversight.
4.4 Customer Responsibilities
(a) Customer is solely responsible for making an independent determination as to whether the technical and organizational measures for an Online Service meet Customer’s requirements, including any of its security obligations under applicable Data Protection Requirements. Customer acknowledges and agrees that (taking into account the state of the art, the costs of implementation, and the nature, scope, context and purposes of the processing of its Personal Data as well as the risks to individuals) the security practices and policies implemented and maintained by Outmin provide a level of security appropriate to the risk with respect to its Personal Data. Customer is responsible for implementing and maintaining privacy protections and security measures for components that Customer provides or controls.
4.5 Auditing Compliance
(a) Outmin will conduct audits of the security of the computers, computing environment and physical data centres that it uses in processing Customer Data and Personal Data, as follows:
(i) Where a standard or framework provides for audits, an audit of such control standard or framework will be initiated at least annually.
(ii) Each audit will be performed according to the standards and rules of the regulatory or accreditation body for each applicable control standard or framework.
(iii) Each audit will be performed by qualified, independent, third party security auditors at Outmin’s selection and expense.
5 Security Incident Notification
5.1 If Outmin becomes aware of a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Customer Data or Personal Data while processed by Outmin (each a “Security Incident”), Outmin will promptly and without undue delay (1) notify Customer of the Security Incident; (2) investigate the Security Incident and provide Customer with detailed information about the Security Incident; (3) take reasonable steps to mitigate the effects and to minimize any damage resulting from the Security Incident.
5.2 Notification(s) of Security Incidents will be delivered to one or more of Customer’s administrators by any means Oumin selects, including via email. Customer has a responsibility to ensure Outmin has the Customer’s administrators accurate contact information. Customer is solely responsible for complying with its obligations under incident notification laws applicable to Customer and fulfilling any third-party notification obligations related to any Security Incident.
5.3 Outmin shall make reasonable efforts to assist Customer in fulfilling Customer’s obligation under GDPR Article 33 or other applicable law or regulation to notify the relevant supervisory authority and data subjects about such Security Incident.
5.4 Outmin’s notification of or response to a Security Incident under this section is not an acknowledgement by Outmin of any fault or liability with respect to the Security Incident.
5.5 Customer must notify Outmin promptly about any possible misuse of its accounts or authentication credentials or any security incident related to the Services.
Schedule 3 – Standard Contractual Clauses
STANDARD CONTRACTUAL CLAUSES FOR THE TRANSFER OF PERSONAL DATA FROM THE COMMUNITY TO THIRD COUNTRIES (CONTROLLER TO PROCESSOR TRANSFERS) DATA TRANSFER AGREEMENT
Address and country of establishment:
Other information needed to identify the organisation:
hereinafter “data exporter”)
Address and country of establishment:
Other information needed to identify the organisation:
hereinafter “data importer”
each a “party”; together “the parties”.
HAVE AGREED on the following Contractual Clauses (the Clauses) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in Appendix 1.
1.1 For the purposes of the Clauses:
(a) ‘personal data’, ‘special categories of data’, ‘process/processing’, ‘controller’, ‘processor’, ‘data subject’ and ‘supervisory authority’ shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data;
(b) ‘the data exporter’ means the controller who transfers the personal data;
(c) ‘the data importer’ means the processor who agrees to receive from the data exporter personal data intended for processing on his behalf after the transfer in accordance with his instructions and the terms of the Clauses and who is not subject to a third country’s system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC;
(d) ‘the subprocessor’ means any processor engaged by the data importer or by any other subprocessor of the data importer who agrees to receive from the data importer or from any other subprocessor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with his instructions, the terms of the Clauses and the terms of the written subcontract;
(e) ‘the applicable data protection law’ means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the data exporter is established;
(f) ‘technical and organisational security measures’ means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.
2 Details of the transfer
2.1 The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1 which forms an integral part of the Clauses.
3 Third-party beneficiary clause
3.1 The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third-party beneficiary.
3.2 The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity.
3.3 The data subject can enforce against the subprocessor this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.
3.4 The parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law.
3.5 If these Clauses are govered by the laws of a jurisdiction which does not recognise the rights of third parties to claim under a contract to which they are not a party the data importer enters into into these Clauses as agent for data subjects for the purpose of this Clause.
4 Obligations of the data exporter
The data exporter agrees and warrants:
(a) that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of that State;
(b) that it has instructed and throughout the duration of the personal data processing services will instruct the data importer to process the personal data transferred only on the data exporter’s behalf and in accordance with the applicable data protection law and the Clauses;
(c) that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 2 to this contract;
(d) that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;
(e) that it will ensure compliance with the security measures;
(f) that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC;
(g) to forward any notification received from the data importer or any subprocessor pursuant to Clause 5(b) and Clause 8(3) to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension;
(h) to make available to the data subjects upon request a copy of the Clauses, with the exception of Appendix 2, and a summary description of the security measures, as well as a copy of any contract for subprocessing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information;
(i) that, in the event of subprocessing, the processing activity is carried out in accordance with Clause 11 by a subprocessor providing at least the same level of protection for the personal data and the rights of data subject as the data importer under the Clauses; and
(j) that it will ensure compliance with Clause 4(a) to (i).
5 Obligations of the data importer
The data importer agrees and warrants:
(a) to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
(b) that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
(c) that it has implemented the technical and organisational security measures specified in Appendix 2 before processing the personal data transferred;
(d) that it will promptly notify the data exporter about:
(i) any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation,
(ii) any accidental or unauthorised access, and
(iii) any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;
(e) to deal promptly and properly with all inquiries from the data exporter relating to its processing of the personal data subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data transferred;
(f) at the request of the data exporter to submit its data processing facilities for audit of the processing activities covered by the Clauses which shall be carried out by the data exporter or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in agreement with the supervisory authority;
(g) to make available to the data subject upon request a copy of the Clauses, or any existing contract for subprocessing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of Appendix 2 which shall be replaced by a summary description of the security measures in those cases where the data subject is unable to obtain a copy from the data exporter;
(h) that, in the event of subprocessing, it has previously informed the data exporter and obtained its prior written consent;
(i) that the processing services by the subprocessor will be carried out in accordance with Clause 11;
(j) to send promptly a copy of any subprocessor agreement it concludes under the Clauses to the data exporter.
6.1 The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or subprocessor is entitled to receive compensation from the data exporter for the damage suffered.
6.2 If a data subject is not able to bring a claim for compensation in accordance with paragraph 1 against the data exporter, arising out of a breach by the data importer or his subprocessor of any of their obligations referred to in Clause 3 or in Clause 11, because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract of by operation of law, in which case the data subject can enforce its rights against such entity.
6.3 The data importer may not rely on a breach by a subprocessor of its obligations in order to avoid its own liabilities.
6.4 If a data subject is not able to bring a claim against the data exporter or the data importer referred to in paragraphs 1 and 2, arising out of a breach by the subprocessor of any of their obligations referred to in Clause 3 or in Clause 11 because both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, the subprocessor agrees that the data subject may issue a claim against the data subprocessor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the subprocessor shall be limited to its own processing operations under the Clauses.
7 Mediation and jurisdiction
7.1 The data importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject:
(a) to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
(b) to refer the dispute to the courts in the Member State in which the data exporter is established.
7.2 The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.
8 Cooperation with supervisory authorities
8.1 The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law.
8.2 The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any subprocessor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data protection law.
8.3 The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any subprocessor preventing the conduct of an audit of the data importer, or any subprocessor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5 (b).
9 Governing Law
9.1 The Clauses shall be governed by the law of the Member State in which the data exporter is established, namely the Republic of Ireland.
10 Variation of the contract
The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clause.
11.1 The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the subprocessor which imposes the same obligations on the subprocessor as are imposed on the data importer under the Clauses. Where the subprocessor fails to fulfil its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the subprocessor’s obligations under such agreement.
11.2 The prior written contract between the data importer and the subprocessor shall also provide for a third-party beneficiary clause as laid down in Clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph 1 of Clause 6 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.
11.3 The provisions relating to data protection aspects for subprocessing of the contract referred to in paragraph 1 shall be governed by the law of the Member State in which the data exporter is established, namely the Republic of Ireland.
11.4 The data exporter shall keep a list of subprocessing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5 (j), which shall be updated at least once a year. The list shall be available to the data exporter’s data protection supervisory authority.
12 Obligation after the termination of personal data processing services
12.1 The parties agree that on the termination of the provision of data processing services, the data importer and the subprocessor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.
12.2 The data importer and the subprocessor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data processing facilities for an audit of the measures referred to in paragraph 1.
On behalf of the data exporter:
Name (written out in full):
Other information necessary in order for the contract to be binding (if any):
On behalf of the data importer:
Name (written out in full):
Other information necessary in order for the contract to be binding (if any):
APPENDIX 1 TO THE STANDARD CONTRACTUAL CLAUSES
This Appendix forms part of the Clauses and must be completed and signed by the parties. The Member States may complete or specify, according to their national procedures, any additional necessary information to be contained in this Appendix.
The data exporter is (please specify briefly your activities relevant to the transfer):
The data importer is:
The personal data transferred concern the following categories of data subjects (please specify):
Categories of data
The personal data transferred concern the following categories of data (please specify):
Special categories of data (if appropriate)
The personal data transferred concern the following special categories of data (please specify):
The personal data transferred will be subject to the following basic processing activities:
APPENDIX 2 TO THE STANDARD CONTRACTUAL CLAUSES
This Appendix forms part of the Clauses and must be completed and signed by the parties.
Description of the technical and organisational security measures implemented by the data importer in accordance with Clauses 4(d) and 5(c) (or document/legislation attached):
The technical and organisational security measures implemented by the data importer are as described in the DPA.
Schedule 5 – Interpretation
1.1 The definitions and rules of interpretation set out in this Schedule apply in this Agreement:
“Accountancy and Administrative Services”
The services as set out in Schedule 1.
in relation to a party, any entity that directly or indirectly controls, is controlled by, or is under common control with that party from time to time.
“Applicable Data Protection Laws”
the law of the European Union or any member state of the European Union to which Outmin is subject, which relates to the protection of personal data including the GDPR.
all applicable laws, statutes, regulation, guidance, orders or directions issued from time to time by any court, government or other competent regulatory authority applicable to a Party.
those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Software Services and the Documentation.
a day, other than a Saturday, Sunday or public holiday in Ireland, when banks are open for business.
the period from 9.00 am to 5.00 pm on any Business Day.
information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 13.
means in relation to any company, partnership or other entity, the beneficial ownership of more than fifty per cent (50%) of the issued share capital of, or the legal power to direct or cause the direction of the general management of such company, partnership or other entity in question or its holding company or parent undertaking, and controls, controlled and the expression change of control shall be construed accordingly.
the data inputted by the Customer, Authorised Users, or Outmin on the Customer’s behalf for the purpose of using the Software Services or facilitating the Customer’s use of the Software Services.
all documents, information, items and materials in any form, whether owned by the Customer or a third party, which are provided by the Customer to Outmin in connection with the Services, including the items provided pursuant to clause 8.1(l).
“Customer Personal Data”
any personal data which Outmin processes in connection with this Agreement, in the capacity of a processor on behalf of the Customer.
any output of the Services to be provided by Outmin to the Customer and any other documents, products and materials provided by Outmin to the Customer in relation to the Services.
the document made available to the Customer by Outmin online via https://outmin.io/ or such other web address notified by Outmin to the Customer from time to time which sets out a description of the Software Services and the user instructions for the Software Services.
the date which is the earlier of (i) the Customer’s initial access to the Services or (ii) the Customer purchases User Subscriptions under the terms of this Agreement.
“Free Trial Services”
the Services provided to the Customer on an unpaid trial or free basis.
“Heightened Cybersecurity Requirements”
any laws, regulations, codes, guidance (from regulatory and advisory bodies. Whether mandatory or not), international and national standards, industry schemes and sanctions, which are applicable to either the Customer or an Authorised User (but not the Supplier) relating to security of network and information systems and security breach and incident reporting requirements, which may include the cybersecurity Directive ((EU) 2016/1148), Commission Implementing Regulation ((EU) 2018/151), the Network and Information systems Regulations 2018 (SI 506/2018), all as amended or updated from time to time.
means the General Data Protection Regulation ((EU) 2016/679).
“Initial Subscription Term”
the initial term of this Agreement as set out in Schedule 3
“Intellectual Property Rights”
patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, 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.
“Outmin Personal Data”
any personal data that Outmin processes in connection with this Agreement, in the capacity of a controller.
the standard charges for the Services or the framework for calculating them as set out in Schedule 3.
the period described in clause 16.1. “Services” the Accountancy and Administrative Services as set out in Schedule 1 and the Software Services together.
the online software applications provided by Outmin as part of the Services.
the subscription services provided by Outmin to the Customer under this Agreement via https://www.outmin.io/ or any other website notified to the Customer by Outmin from time to time, as more particularly described in the Documentation.
the subscription fees payable by the Customer to the Supplier for the User Subscriptions, as set out in Schedule 3.
has the meaning given in clause 16.1 (being the Initial Subscription Term together with any subsequent Renewal Periods). For Free Trial Services, the Subscription Term will be the Free Trial Period.
the user subscriptions purchased by the Customer pursuant to clause 3 which entitle Authorised Users to access and use the Software Services and the Documentation in accordance with this Agreement.
value added tax chargeable in Ireland or elsewhere.
any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect th operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, 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.
a weakness in the computational logic (for example, code) found in software and hardware components that when exploited, results in a negative impact to the confidentiality, integrity, or availability, and the term Vulnerabilities shall be construed accordingly.
1.2 Clause, Schedule and paragraph headings shall not affect the interpretation of this Agreement.
1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.4 The Schedules form part of this Agreement and shall have effect as if set out in full in the body of this Agreement. Any reference to this Agreement includes the Schedules.
1.5 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.6 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.7 Unless the context otherwise requires, a reference to one gender shall include a reference to all other genders.
1.8 This Agreement shall be binding on, and endure to the benefit of, the parties to this Agreement and their respective personal representatives, successors and permitted assigns, and references to any party shall include that party’s personal representatives, successors and permitted assigns.
1.9 Unless expressly provided otherwise in this Agreement, a reference to legislation or a legislative provision is a reference to it as it is in force as at the date of this Agreement.
1.10 Unless expressly provided otherwise in this Agreement, a reference to legislation or a legislative provision shall include all subordinate legislation made as at the date of this Agreement under that legislation or legislative provision.
1.11 A reference to writing or written includes fax and email.
1.12 Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
1.13 A reference to this Agreement or to any other agreement or document is a reference to this Agreement or such other agreement or document, in each case as varied or novated from time to time.
1.14 References to clauses and Schedules are to the clauses and Schedules of this Agreement and references to paragraphs are to paragraphs of the relevant Schedule.
1.15 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.