Terms and
Conditions
Unless a contract is signed by both parties these terms and conditions constitute the entire agreement of the parties hereto. These terms and conditions may be changed or amended by DigitalWell at any time for legal, regulatory, commercial or security reasons or to enable the proper delivery of or to improve the delivery of services. Where an amendment is made we will provide at least 2 months’ notice on our website prior to any new terms taking effect. By continuing to access or use our service, you agree to be bound by our then current terms and conditions.
1. Price and Terms of Payment
1.1 The prices for Services are as set out in the applicable Order Form.
1.2 A purchase order is required for all Services as detailed in the Order Form(s), where a Customer is unable to produce a purchase order a signed Order Form and/or agreement can be used to substitute for same.
1.3 Company’s invoices will contain Customer’s reference number, a description of the Services, the unit price and total price, together with relevant tax details.
1.4 Payments for any and all recurring services shall be made by direct debit to the bank account details furnished for the Company, unless stipulated otherwise on the Order Form. The Customer agrees to sign and return the supplied Direct Debit form and ensure that adequate funds remain in their account to cover each payment due for any and all recurring services.
1.5 Valid invoices for non-recurring Services shall be paid in full within 30 days of the date of the invoice or in accordance with the terms set out in the applicable Order Form.
1.6 The Company will send invoices to Customer’s address, electronic or physical, designated on the face of an Order Form or such other address as Customer may specify in writing.
1.7 The provision of the Services may be subject to the completion of installation, site survey or certain other planning and/or implementation works which may result in Customer incurring additional charges. Such charges shall be detailed in the Order Form. The Company shall not be obliged to conduct such works until the charges have been agreed by the Parties and are detailed in an Order Form.
1.8 Where the Company, its subcontractor or its agent, visits the Customer’s premises to carry out any Services and cannot carry them out due to the Customer’s act, omission, or unavailability, the Company, in addition to the sums already contracted for that visit in the Order Form, shall be entitled to payment for making such visit and any re-scheduled visit, at its usual and prevailing rates for such Services, plus reasonable travel costs.
1.9 The Company may alter the amount of, or payment terms relating to the charges or fees at any time during the Term, to include but not limited to for the following reasons:
1.9.1 to take account of any increase in the costs incurred by Company in the provision of the Services and/or the Equipment (including any increase in the costs or charges of any third party, licensor or other to Company); or
1.9.2 to pass on any increase in co-location service costs relating to any data centre and/or power supplier to Company at any time; or
1.9.3 to pass on any increase due to inflation calculated in accordance with the Consumer Price Index after the first anniversary of the signing of this agreement.
1.10 The Company may alter the amount of, or payment terms relating to the charges or fees at the end of the Term as stated in the latest Order Form.
1.11 The Company shall notify Customer by e-mail of any such increase and shall endeavour to give Customer not less than 30 days’ prior notice of such charges.
1.12 Without prejudice to any other rights or remedies Company will be entitled to charge Customer interest on any overdue amounts at a rate of 1% above EURIBOR.
1.13 Unless otherwise set forth in an Order Form and/or Statement of Work, all amounts payable under the Agreement shall be made in Euro.
1.14 If the Customer, in good faith, disputes the amount of any invoice, the Customer shall pay the undisputed amount in accordance with this Agreement and/or the Order Form/Statement of Work and will notify the Company in writing of the disputed amount and the reasons for such dispute no later than the date payment would otherwise be due. The Parties will attempt in good faith to resolve the dispute within thirty (30) days after the Company’s receipt of the notice of dispute (the “Resolution Period”). Upon resolution of the dispute, the Customer will pay the resolved amount within ten (10) days of mutual written agreement resolving the dispute. If the dispute is not resolved within the Resolution Period, each Party will be entitled to pursue all available remedies.
1.15 If the Agreement is terminated for any reason, the Customer shall be liable for payment of all applicable fees due until the date of such termination.
2. Term
2.1 The Term of this Agreement shall run from the earliest of (i) the date of this agreement, (ii) the date of the Order Form, (iii) the Service Commencement date on the Order Form. The Term will be for at least the Minimum Period as stated on the Order Form.
3. Taxes and Duties
3.1 The Customer agrees to pay all sales tax, use tax, value added tax, goods and services tax, transaction tax, or similar excise tax due to any taxing authority with respect to transactions resulting from this Agreement. If the Company is required by any taxing authority to collect and remit any such taxes to a taxing authority, the Company shall invoice any such taxes and the Customer shall pay the Company for such taxes.
3.2 Where the Customer is required by any competent taxing authority to withhold taxes from payments made to the Company, the Customer shall deduct such withholding tax from payment to the Company and shall immediately pay such tax to the taxing authority on behalf of the Company. The Customer shall obtain for and provide to the Company, within thirty (30) days after submitting such withholding tax, the original tax certificate or receipt issued evidencing such tax payment and any such other documentation or detail necessary to allow the Company to apply for an appropriate tax credit. In the event the Customer does not comply with the requirements of this clause 3.2, the Customer shall be liable for and shall reimburse the Company for the amounts deducted as withholding taxes from the payment.
3.3 Applicable sales, use, excise and similar taxes (excluding withholding taxes), payable by Customer will appear as separate items on invoices.
4. Companies Representations and Warranties
4.1 Company confirms, represents and warrants that, the Services will be:
4.1.1 performed in accordance with and comply with the provisions and specifications as detailed in the applicable Order Form and/or Statement of Work and performed by appropriately qualified and properly trained and skilled resources of the Company; and
4.1.2 performed in a professional and workmanlike manner, in accordance with good industry practice.
4.2 The Customers, sole and exclusive remedy for the Company’s breach of the warranties at clause 4.1 is the Company will at its sole option, (i) use commercially reasonable efforts to re-perform the defective Services; or (ii) provide a refund to the Customer for the non-conforming Services.
4.3 The Company provides no warranty any accepts no liability for any equipment or products used as part of the Services which are provided by a third-party supplier.
4.4 The Company may subcontract certain portions of the Services provided under the Agreement to third parties, provided that the Company shall be responsible for the performance of such subcontractors.
5. Indemnity
5.1 The Company will indemnify, save harmless and defend Customer from any and all claims, actions, losses, expenses, costs or damages (including, without limitation, reasonable legal expenses, (collectively “Losses”)) which Customer may suffer or incur as a result of any negligent act or omissions or wilful misconduct of Company, its employees, representatives, agents or sub-contractors relating to this Agreement or in performance of the Services.
5.2 The Company will have no liability under clause 5.1 if the Losses arise solely and directly due to:
5.2.1 infringement which cannot otherwise be avoided by the Company in complying with written instructions furnished by Customer; or
5.2.2 the negligence of Customer, its employees, agents or sub-contractors.
5.3 The Customer will immediately notify the Company in writing of any proceedings or claim involving the Services of which it becomes aware.
6. Insurance
6.1 Company will maintain in force, for the term at its own expense all such insurances as a prudent provider of the Services would reasonably hold from time to time.
6.2 Such insurances shall be taken out with reputable insurance companies, qualified to do business in the relevant jurisdictions.
7. Termination
7.1 Either party may terminate this Agreement on notice with 30 days written notice if:
7.1.1 the other party commits a material breach of this Agreement and fails to remedy this breach, where capable of remedy, within thirty (30) days of written notice requiring it to do so.
7.1.2 the other party makes an assignment for the benefit of its creditors or a proposal under any applicable bankruptcy or insolvency legislation, is declared bankrupt or insolvent, has a trustee, receiver or receiver manager, liquidator, examiner or another officer with similar powers appointed for all or any material part of its property or convenes a meeting where it is proposed to consider the appointment of such an officer, or is the subject of an Order or resolution for it winding up, or makes any arrangement or composition with its creditors or is unable to pay its debts as they fall due within the meaning of the Companies Acts 1963 to 2014.
7.2 The services listed on any order form or statement of work provided under this agreement will at the end of the term stated automatically renew for a period of twelve (12) months unless formal written notice of cancellation is provided by the customer no later than 90 days before end of initial or renewal term.
7.3 For purposes of clarity:
7.3.1 termination for cause of the Agreement will automatically terminate all Statements of Work and Order Forms.
7.3.2 termination for cause of a Statement of Work or Order Form will not , unless required by the Company, automatically terminate this Agreement or any other Statements of Work and Order Forms hereunder.
7.4 Those provisions of this Agreement which by their nature should survive, shall survive the expiration or any termination of the Agreement. Clauses 5, 6, 9, 10, 13, 18 and 21 will survive the expiration or termination of this Agreement. Termination shall not act as a waiver of any breach of the Agreement and shall not act as a release of either party from any liability for breach of such Party’s obligations under the Agreement. Neither party shall be liable to the other for damages of any kind solely as a result of terminating the Agreement in accordance with its provisions, and termination of the Agreement by a party shall be without prejudice to any right or remedy of such party under the Agreement or applicable law.
8. Notices
8.1 Notices, except for invoices, must be in writing sent to the Parties at their registered office addresses and email addresses set out in the most recent Purchase Order or such other address as notified by a Party in writing. A notice will be deemed delivered:
8.1.1 if by hand, on the day of receipt (unless received after 5pm in which case they shall be given on the next Business Day);
8.1.2 if by post, three (3) Business Days after the date of posting; and
8.1.3 if by email one (1) hour after the time of transmission provided a confirmation of delivery for the complete notice can be produced (or 9am the next Business Day if received after 5pm on a Business Day or on a non-Business Day).
9. Confidential Information
9.1 This Agreement and all information disclosed by either Company or Customer under or in connection with this Agreement shall be treated by the Receiving Party as confidential and shall be protected as such under the terms and conditions as set out herein.
9.2 “Confidential Information” means –
9.2.1 the fact that the Parties have entered into this Agreement; and
9.2.2 all information in whatever form (including but, without limitation written, oral, visual and electronic forms) relating to a Party (or its Service Recipient as set out in a Statement of Work), its business or this Agreement, including but not limited to ideas, discoveries, inventions, specifications, formulae, computer programmes and systems, drawings, patents, designs, configurations, models, requirements, standards, processes, operations, call traffic and tariff information, agent and customer information, customer feedback and comments, products, services, sales, marketing and business plans, forecasts, analysis, studies, memoranda, reports, financial / commercial / marketing / technical / organisational or trading information, trade or manufacturing secrets, and all intellectual and industrial property rights and know how belonging to that Party or Service Recipient, which is directly or indirectly disclosed by the Party or Service Recipient to the other Party before or after the date of this Agreement or which is learned by a Party through observations made during visits to any premises of the other Party, its Service Recipient, or their agents.
9.3 Each Party will keep the specific terms of this Agreement confidential and not disclose them to any third party (other than to its employees and professional advisors who need to know same) without the other Party’s prior written consent, except as required by law.
9.4 In connection with the negotiation and performance of this Agreement, a Party (the “Receiving Party”) may receive or have received Confidential Information of the other Party (the “Disclosing Party”), which is confidential or proprietary in nature. The Receiving Party agrees that, during the Term of this Agreement and thereafter, it will keep the Confidential Information in strictest confidence and, in addition, protect such Confidential Information by no less stringent security measures as it takes to protect its own Confidential Information. Each Party agrees to hold the other’s Confidential Information in strict 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 and performance of this Agreement.
9.5 The Receiving Party also agrees that it will not use any Confidential Information for any purpose other than in connection with the performance of its obligations under this Agreement.
9.6 The term “Confidential Information” shall not include information which is or becomes generally available to the public without breach of this Agreement, is in the possession of the Receiving Party prior to its disclosure by the Disclosing Party, becomes available from a third party not in breach of any obligations of confidentiality, is independently developed by the Receiving Party, or is required by law to be disclosed pursuant to judicial order or other compulsion of law, provided that the Receiving Party shall give the Disclosing Party prompt notice of any such order and shall comply with any protective order (or equivalent) imposed on such disclosure. In the event of a disputed disclosure, the Receiving Party shall bear the burden of proof of demonstrating that the information falls under one of the above-described exceptions.
9.7 The Disclosing Party may, at any time by way of written notice to the Receiving Party, require the Receiving Party to return or destroy any material containing, pertaining to or relating to Confidential Information and to delete such Confidential Information from any server, computer or other similar device into which it was entered, and may, in addition, require the Receiving Party to furnish a written statement (certified as correct by a director of the Receiving Party) to the effect that, upon such return, the Receiving Party has not retained in its possession, or under its control, directly or indirectly, any such Confidential Information. The Receiving Party shall comply with all requirements in terms of this clause 9.7 within 14 (fourteen) days of receipt of written notice thereof.
9.8 The Parties recognise that the disclosure or use of the Disclosing Party’s Confidential Information by the Receiving Party in violation of the provisions of this clause 9 would cause irreparable injury to the Disclosing Party and each Party accepts that any such breach could cause injury to the other Party and that monetary damages would not be an adequate remedy. In the event of such a breach or threatened breach by the Receiving Party, the Disclosing Party shall be entitled to injunctive relief in any court of competent jurisdiction and reimbursement for any costs, claims, demands or damages arising directly out of such breach. Nothing contained in this clause 9 shall be construed as prohibiting either Party from pursuing other legal remedies available to it for breach or threatened breach of this Agreement.
10. Intellectual Property Rights
10.1 All intellectual property owned or licensed by the Company shall remain the sole and exclusive property of the Company or the party from whom the Company licenses same.
10.2 Unless otherwise expressly stated in the Agreement, nothing is intended to grant to either Party any licenses or rights to any Intellectual Property Rights of the other Party.
10.3 The Company will retain exclusive ownership of and all rights in the following unless otherwise expressly agreed in writing by the Company: (i) all pre-existing works, inventions, technology, data, and materials incorporated into or used in association with the Services; (iii) all technical or non-technical information, data, ideas, concepts, or know-how, including developments, inventions, processes, algorithms, designs, drawings, engineering, and hardware configuration information, and other information that relates to the Company; (iii) all intellectual property developed or enhanced in or in relation to the provision of the Services; and (iv) all intellectual property rights in and to such bespoke and customised products and deliverables created by the Company for the Customer in the provision of the Services (together the “Company’s Intellectual Property”).
10.4 The Customer will not take any action that jeopardises the Company’s proprietary rights or acquire any right in the Company’s intellectual property. At the Company’s request, the Customer will obtain the execution of any document (including from its employees, agents, contractors, consultants, or representatives) that the Company deems appropriate to assign or perfect rights to the Company or its suppliers of the Company’s Intellectual Property created, conceived, discovered, or reduced to practice during the term of this Agreement.
10.5 Neither Party may, without the prior written consent of the other Party, use the names, services marks, trademarks, logos, or other corporate identifications of the other Party.
11. Independent Contractors
11.1 The relationship between Customer and Company is one of independent contractors and nothing contained in the Agreement shall be deemed or construed as creating a joint venture, partnership, agency, employment, or fiduciary relationship between the Parties. Neither Party will at any time or in any way represent itself as being a dealer, agent or other representative of the other Party or as having authority to assume or create obligations or otherwise act in a manner on behalf of the other Party.
11.2 The Contract is a contract for services and is not a contract of service.
12. Company Employees
12.1 While on Customer premises or its clients’ premises, Company’s employees will not, for any purpose, be considered employees of Customer.
13. Publicity
13.1 Neither Party may without the prior written consent of the other Party first having been received advertise or otherwise disclose the contents of this Agreement or its existence or that the Company has furnished or agreed to furnish Services to Customer under this Agreement.
13.2 Neither Party will disparage the other or any product or service offered by the other Party.
14. Customer Obligations
14.1 During the term of this Agreement, the Customer shall, and shall ensure that its resources:
14.1.1 co-operate with and assist Company.
14.1.2 provide all information and documentation reasonably requested by the Company in a timely fashion.
14.1.3 make payments in a timely fashion.
14.1.4 make available to Company such personnel and facilities as reasonably required to deliver the Services contemplated herein; and
14.1.5 comply with any obligations set out in this Agreement and any Order Form and/or Statement of Work.
14.2 If Customer provides Equipment for use by Company to perform work under this Agreement, Company will use such equipment solely for that purpose.
15. Variation and Waiver
15.1 No variation of this Agreement shall be effective unless it is in writing and signed by the Parties.
15.2 A waiver of any right or remedy under this Agreement or by law is only effective if given in writing and signed by the person waiving such right or remedy. Any such waiver shall apply only to the circumstances for which it is given and shall not be deemed a waiver of any subsequent breach or default.
15.3 A failure or delay by any person 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.
15.4 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.
16. Severability
16.1 If any provision contained in the Agreement is, for any reason, held to be invalid or unenforceable in any respect under the laws of any jurisdiction where enforcement is sought, such invalidity or unenforceability will not affect any other provision of the Agreement and the Agreement will be construed as if such invalid or unenforceable provision had not been contained herein in that jurisdiction.
17. Force Majeure
17.1 Save for in respect of any payment obligations, if the performance by either Party hereto is delayed or prevented by circumstances beyond the reasonable control of that Party (including any act of God, any refusal of any import, export or other license or other governmental act, fire, explosion, strike or lockout) the due time for performance will be extended by a reasonable period to overcome the effects of such circumstances. Neither party shall be liable for failure to perform its obligations under the Agreement if the failure results from such circumstances.
18. Data Protection
18.1 The Parties hereto agree and warrant to the other that they will:
18.1.1 at all times comply to the extent they are legal binding on them with the provisions and obligations imposed by laws relating to processing of personal data and privacy, including (but not limited to): (i) the General Data Protection Regulation (EU) 2016/679; (ii) the Data Protection Act 2018, and any other legislation which implements the GDPR; (iii) the European Communities (Electronic Communications Networks and Services) (Privacy and Electronic Communications) Regulations 2011 and any other legislation which implements the Electronic Communications Data Protection Directive (2002/58/EC); (iv) all applicable Irish laws and regulations relating to the processing of personal data and privacy; (v) any compulsory guidance and codes of practice issued by the Data Protection Commission or the European Data Protection Board; and (vi) all applicable similar or related legislation in any competent jurisdiction, as amended, and any statutory implementation, modification or re-enactment of any of the foregoing for the time being in force or any regulations made pursuant thereto (the “DP Law”), and
18.1.2 when processing Personal Data under this Agreement, comply with any Data Protection Agreement entered into between the Parties.
18.2 Each Party agrees to indemnify the other in respect of any loss, damage, liability, costs or expenses incurred by the other by reason of the unauthorised storing, processing or disclosure of personal data or any breach of the data protection obligations under this Agreement.
19. Bribery and Corruption
19.1 Compliance with Applicable Laws in relation to bribery and corruption is a matter of fundamental importance.
19.2 Each Party shall comply with all Applicable Laws and regulations as they relate to the acts, omissions, rights, and obligations of the Parties under the Agreement.
19.3 Each agrees that it its employees, agents, consultants and so far as within its power to procure its contractors and subcontractors shall:
19.3.1 act in accordance with all Applicable Laws on bribery and corruption.
19.3.2 not do or omit to do anything likely to cause the other Party to be in breach of any of the requirements referred to in this clause.
19.3.3 not give, promise, receive or request any bribes (financial or other advantage), including but not limited to in relation to any public official.
19.3.4 maintain proportionate and effective anti-bribery compliance measures (including for gifts and hospitality), designed to ensure compliance with the law referred to in this clause including the monitoring of compliance and detection of violations; and
19.3.5 reasonably assist the other Party, on that other Party’s reasonable request and expense, to comply with obligations related to bribery and corruption required by the law referred to in this clause.
19.4 The Company shall only be paid by Customer, for goods delivered or services performed, by wire transfer or other traceable instrument to a bank account in the Company’s name.
20. Non-Solicitation
20.1 Neither Party shall (except with the prior written consent of the other) during the Term of this Agreement, and for a period of one (1) year thereafter, solicit the services of any employee or contractor of the other Party who is engaged in connection with the matters provided for under this Agreement other than by means of a national advertising campaign open to all comers and not specifically targeted at such staff of the other Party.
20.2 Where a Party does enter into a contract in breach of clause 20.1 they will pay to the other Party a sum equivalent to twelve (12) months’ salary or cost, applicable to that particular employee or contractor.
21. Limitation of Liability
21.1 Notwithstanding any other term of this Agreement, under no circumstances will either party, its employees, servants or agents be liable to the other party or any third party for any consequential, exemplary, indirect or special damages including, without limitation, loss of profit, loss of revenue, capital expenditure or loss of goodwill, resulting from any claim (including, without limitation a claim for breach of contract, in tort, under an indemnity, for breach of warranty or otherwise) related to the performance or non-performance of its obligations under this Agreement and/or the termination or suspension of this Agreement by either party or otherwise.
21.2 The Company’s total aggregate liability to the Customer under this Agreement and any Order Form or Statement of Work will in no instance exceed the value of the preceding 12 months invoices paid by the Customer under this Agreement.
22. Health and Safety
22.1 The Company agrees that it will, at all times, comply with all aspects of the Safety, Health and Welfare at Work Acts 1989 and 2005 and ensuing legislation and all laws and regulations issued by any government department or statutory body.
23. Assignment
23.1 Subject to clause 23.2 neither Party may assign, transfer or otherwise dispose of or purport to do any of the foregoing in respect of all or any of its rights or obligations under this Agreement to any person or permit the assumption of its obligations under this Agreement without the prior consent of the other party, such consent not to be unreasonably withheld or delayed.
23.2 Both Parties shall have the right to assign this Agreement to any person or body corporate controlled by or under common control with that Party.
23.3 Notwithstanding clauses 23.1 and 23.2 the Customer may not assign this Agreement to a competitor or potential competitor of the Company.
23.4 The rights and liabilities of the parties hereto shall bind and inure to the benefit of their respective successors and assigns.
23.5 Any assignment other than as provided in this clause 23 is void and of no force or effect.
24. Definitions and Interpretation
24.1 The headings in this Agreement are for convenience of reference only, are not part of this Agreement and do not affect its interpretation.
24.2 Words and expressions defined in any clause will, for the purpose of this Agreement, bear the meaning assigned to the words and expressions in that clause.
24.3 Any reference to the singular includes the plural and vice-versa.
24.4 Any reference to natural persons includes legal persons and vice-versa and references to any gender includes reference to the other gender and vice-versa.
24.5 This Agreement may be executed by electronic signature in counterparts, and, in the absence of an original signature, electronic copies of signatures shall be considered the equivalent of an original signature.
25. Entire Agreement
25.1 This Agreement, together with any associated Order Forms and Statements of Work, constitutes the whole and entire agreement between the Parties with regard to the subject matter hereof and supersede any prior representation, promise or proposal.
25.2 The provisions of the Agreement, together with any associated Order Forms and Statements of Work, shall supersede any prior agreements, understandings, or communications of the parties, even if such prior agreements governed the same or similar relationship or dealings between the parties.
25.3 In this Agreement if there is any conflict, ambiguity or inconsistency, the order of precedence for this Agreement and the documents attached to or referred to in this Agreement shall be as follows in descending order of preference:
25.3.1 the applicable Statement of Work;
25.3.2 the applicable Order Form;
25.3.3 the body of this Agreement.
26. Dispute Resolution and Applicable Law
26.1 If any dispute arises in connection with the Agreement, the Parties will first attempt to settle the dispute in good faith between senior representatives of each Party. In such event and as and when the dispute arises, one Party may invite the other in writing to meet and to attempt to resolve the dispute within 14 (fourteen) days from date of the written invitation.
26.2 No Party may commence any court proceedings in relation to any dispute arising out of the Agreement until the parties have exhausted this escalation process to settle the dispute, provided that the right to issue proceedings is not prejudiced by a delay.
26.3 The laws of Ireland will govern this Agreement, and the Parties hereby submit to the exclusive jurisdiction of the Irish Courts.
27. Support & Maintenance
Introduction
This schedule describes the standard support agreement terminology as well as a standardised baseline. Detailed product schedules highlight any support related deviations or exceptions related to the specific products concerned. In the event of any conflict or inconsistency between this Support Agreement and the Product Schedule the Product Schedule will take precedence.
Terminology
Best Endeavours (BE): refers to the level of support provided for third party products or services that are now, for example, End of Life (EOL), End of Support (EOS), where spares are unavailable and/or the original solution was not purchased from the Company. Where this applies there will be limitations and restrictions on company’s ability to provide support and as such it will be done on a best endeavours basis.
Exclusions: Anything not explicitly stated as being included in the agreement is excluded. Some additional detail on specific exclusions is provided for clarification purposes but is not an exhaustive list of exclusions.
Hardware Replacement: Company will provide where it is explicitly listed in the service order, excluding End of Life (EOL), End of Support (EOS), or where spares are unavailable from the original manufacturer. Please note all consumables (e.g. handsets, cabling, leads, headsets, cordless phones, conference units, door phone units, patch panels) are excluded unless explicitly stated otherwise.
Licensing: Company does not generally provide support services for technology (hardware and licences) that has not been purchased via the company or taken over by the company. Any exceptions are subject to the prior agreement of Company, relevant third party and Customer. Generally, Customer will be responsible for ensuring timely license renewal, unless explicitly stated otherwise. Where licensing has been purchased through the company support/maintenance agreement(s) are not transferable.
Performance exceptions: Where Company is unable to progress the resolution of an Incident for reasons beyond its control include but are not limited to:
- Information missing from an Incident report submitted by a customer.
- Awaiting Customer check of end user equipment or for test results
- Awaiting Customer to make person or team available.
- Awaiting Customer response for required additional information.
- Awaiting third party, including vendor (e,g Genesys, Fortinet, Cisco, Microsoft).
- Customer failing to correctly implement reasonable instructions.
Support: Is a generic term for any kind of operational and maintenance type activity provided by the Company. This agreement, the order form, and/or in the Bill of Materials (BoM) and/or in the Statement of Works (SoW) accompanying or associated with the service) will define precisely what type of support is being provided.
Unsupported: Applies to products or services that are provided on a supply only basis meaning that any issues must either be resolved by the customer or raised directly with the vendor and or relevant third party.
Support Hours
| Service Package | Support Hours |
|---|---|
| Standard | Monday-Friday 9am-5:30pm Irish Standard Time excluding Irish bank holidays |
| Premium | P1 severity incidents only: 24/7 P2/3/4 Monday-Friday 9am-5:30pm Irish Standard Time excluding Irish bank holidays. (Premium support is an optional extra that is excluded unless clearly stated otherwise on the order form, and/or in the Bill of Materials (BoM) and/or in the Statement of Works (SoW) accompanying or associated with the service) |
Support and Ticket Types Defined
Support is included as detailed below unless explicitly described in your order form, bill of materials and/or in the Statement of Works as appropriate.
| Ticket Type | Description | Exclusions |
|---|---|---|
| Incident & Incident Management | An incident is any issue with the service that causes it to stop operating, operate incorrectly and impact Customer business process. Incident refers to an event(s) or problem(s) causing unplanned interruption(s) to a service or the reduction in the quality of a service. Specific samples of Incidents that are covered under support are described in the relevant product schedule. Remote incident management is included unless clearly stated otherwise on the order form, and/or in the Bill of Materials (BoM) and/or in the Statement of Works (SoW) accompanying or associated with the service). |
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| Service Request | A Service Request is a small request from a user or their authorised representative to initiate an action, which takes less than 1 hour that has been agreed as a normal part of service delivery. They are generally non impactful service alterations. Service Requests are excluded from standard support unless clearly stated otherwise on the order form, and/or in the Bill of Materials (BoM) and/or in the Statement of Works (SoW) accompanying or associated with the service). |
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| Change Request | A Change Request is the addition, modification, or removal of anything that could have a direct or indirect effect on service. Change Requests are excluded from standard support. They should be considered as an additional work request and may be subject to additional charges. |
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| Service Delivery Management | Service Delivery Management is a service comprising a Dedicated Service Delivery Manager of the service. Service Delivery Management is excluded from standard support unless clearly stated otherwise on the order form, and/or in the Bill of Materials (BoM) and/or in the Statement of Works (SoW) accompanying or associated with the service). |
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Procedures and Process
Preliminary Troubleshooting: Prior to raising a ticket the Customer must perform reasonable basic troubleshooting.
Raising Tickets: Critical Impact (P1) tickets must be raised by telephone (+353 1 224 2000). Existing tickets which become Critical must also be raised by telephone (+353 1 224 2000).
Non-critical (P2-P4) tickets must be raised on the Client Support Portal or by email (support@digitalwell.com).
All information to enable Company to resolve the incident is to be provided including:
- Company name
- Company contacts details
- Customer trouble-ticket reference (if applicable)
- Full details of the nature of incident
- Geographical location of incident
- Start time of incident (actual event time stamp, where applicable)
- Recent environmental changes, changes to configuration, screenshot, logs.
Severity Assignment
Incidents raised by the customer with Company helpdesk will be categorised by the company based on the following criteria:
| Category | Name | Definition |
|---|---|---|
| P1 | Critical | All or most users, and potentially other customers affected. Critical impact on customer business operations. Customer’s ability to progress work is seriously impaired and/or at a complete standstill. |
| P2 | High | A substantial number of users and/or an entire business function or department affected. Serious impact on customer business operations. Customer’s ability to progress work is significantly impaired but not at a complete standstill. |
| P3 | Medium | A small number of users affected, or all users affected but only to a minor degree. Customers’ ability to progress work is somewhat impaired. |
| P4 | Low | Minor issue with the service. Service still broadly functional but not operating optimally. |
Response Time
A response to an incident is defined as a meaningful response confirming that the issue has been understood and assigned to the team responsible for the product.
| Category | Name | Response Time Target |
|---|---|---|
| P1 | Critical | 30mins (by phone) – business hours. *30mins 24/7/365 if you have procured premium support and this is explicitly described on your Order form or Statement of Works. |
| P2 | High | 1 business hour (via DigitalWell client portal) |
| P3 | Medium | 2 business hours (via DigitalWell client portal) |
| P4 | Low | 24 business hours (via DigitalWell client portal) |
28. Data Protection Undertakings
Data Controller, Data Processor, Data Subject, Personal Data and Process (including cognate terms) bear the meanings given to those terms in the DP Law.
Data Security Breach: Any known potential or actual breach of any obligations or duties owed by the Company to the Customer relating to the confidentiality, integrity or availability of Personal Data, including the unauthorised access, disclosure, use or other Processing of such Personal Data.
Personnel: Any and all employees, officers, directors, contractors, agents or temporary or relief staff used by a party or any of its Subcontractors from time to time.
Subcontractor: Such approved third parties, if any, as may be selected by the Company to assist in the performance of the services in accordance with this Agreement.
Data Controller
The Customer is a Data Controller in respect of Personal Data which it provides to Company under this Agreement and shall comply with its obligations as a Data Controller under DP Law.
Data Processor
The Company acts as a Data Processor in respect of the Personal Data it Processes on behalf of the Customer, which includes legacy data provided to the Company which may include biographical and contact information of persons (including children) with whom the Customer has worked in the past.
The Company shall comply with its obligations as a Data Processor under DP Law. Without prejudice to the Company’s other obligations pursuant to this clause 28, if the Company is or becomes aware of any reason that would prevent its compliance with the DP Law or any incident of non-compliance with the DP Law in connection with the Processing of Personal Data under this Agreement it shall notify the Customer as soon as practicable.
Instructions
The Company agrees that it shall acquire no rights or interest in the Personal Data, and shall only, and shall procure that its Personnel only, Process the Personal Data in accordance with this Agreement and any other written instructions of the Customer unless required to do so by European Union or Member State law to which the Data Processor is subject and in such a case, the Data Processor shall inform the Customer of that legal requirement before processing, unless that law prohibits such information on important grounds of public interest.
Data Transfers
The Company will not transfer any Personal Data outside the EEA except with the prior written consent of the Customer and in accordance with any terms the Customer may impose on such transfer.
As a condition of granting such consent, the Customer may, among other requirements, require the Company to enter into or procure that any relevant Subcontractor enters into an appropriate data transfer contract.
Data Subject Rights
The Company agrees to assist the Customer, including taking appropriate technical and organisational measures which take into account the nature of the processing, to respond to requests by Data Subjects, exercising their rights under the DP Law, within such reasonable timescale as may be specified by the Customer.
If the Company receives any such request from Data Subjects directly, the Company will immediately inform the Customer that it has received the request and forthwith forward the request to the Customer. The Company will not respond in any way to such a request, except on the instructions of the Customer.
Assistance
The Company shall assist the Customer within such reasonable timescale as may be specified by the Customer with compliance with the Customer’s obligations pursuant to:
(a) Article 32 of the GDPR (Security);
(b) Articles 33 and 34 of the GDPR (Data Breach Notification);
(c) Article 35 of the GDPR (the conduct of Data Protection Impact Assessments); and
(d) Article 36 of the GDPR (Prior Consultation requests to Regulators in relation to Personal Data Processing under this Agreement).
Breach Notification
The Company will notify the Customer within 24 hours of the Company becoming aware of a Data Security Breach, and shall include in such notification, at least the applicable information referred to in Article 33(3) of the GDPR (to the extent that it is known at the time of notification, with the remainder of such information to be provided as it becomes available). The Company shall not communicate with any Data Subject in respect of a Data Security Breach without the prior written consent of the Customer.
Confidentiality
The Company will ensure that its Personnel who Process Personal Data under this Agreement are subject to obligations of confidentiality in relation to such Personal Data.
Security
The Company shall implement appropriate technical and organisational measures to assure a level of security appropriate to the risk to the security of Personal Data, in particular, from accidental or unlawful destruction, loss, alteration, unauthorised, disclosure of or access to Personal Data including as appropriate and as notified in advance to the Customer:
(a) the pseudonymisation and encryption of Personal Data;
(b) the ability to ensure the ongoing confidentiality, integrity and availability and resilience of the Company’s systems used for such Processing, the Personal Data and the Services;
(c) the ability to restore the availability and access to the Personal Data in the event of a physical or technical incident; and
(d) a process for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures for ensuring the security of the processing.
Sub-Processing
The Company agrees that it shall not engage any third party to Process the Customer’s Personal Data without the prior written consent of the Customer.
The Company shall inform the Customer of any intended changes concerning the addition or replacement of the other processors and shall not make any such changes without the prior written consent of the Customer.
Demonstrating Compliance
The Company shall make available to Customer all information necessary to demonstrate compliance with the obligations set out in Article 28 of the GDPR and allow for and contribute to audits, including inspections of the Company’s servers or operating environment, conducted by Customer or another auditor mandated by Customer, for the purpose of ensuring compliance with this clause 28.
Such audit may be conducted no more than once per quarter, at the Customer’s expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Company’s normal conduct of business.
Infringement
The Company will immediately inform the Customer if, in its opinion, an instruction given or request made pursuant to this Agreement infringes the DP Law.
Termination/Expiry
On termination or expiry of this Agreement (or at any other time on request by the Customer), within ninety (90) working days from notification from the Customer, the Company shall return or permanently erase, at the election of Customer, all copies of Personal Data received and/or processed by it under this Agreement unless European Union or Member State law requires retention of the Personal Data.
The provisions of this clause 28 shall survive the term of this Agreement until the Company has returned or destroyed all Personal Data.
29. Definitions
| Term | Definition |
|---|---|
| Acceptable Use Policy | means DigitalWell’s Acceptable Use Policy, a copy of which is included as part of the relevant product schedule and may be amended from time to time; |
| Affiliate | means in relation to the Company or the Customer any member of the Group of Companies as defined in the Companies Act 2014; |
| Agreement | means this Agreement comprising all of its Appendices, Schedules and amendments; |
| Applicable Laws | means all applicable laws, rules, regulations, mandatory guidelines and codes which impose legal or regulatory requirements upon a party hereto; |
| Bandwidth | means the logical capacity provided or throughput supported for each individual telecommunications circuit associated with each order as applicable; |
| Billing Period | has the meaning set out on the Order; |
| Business Day | means a day (other than a Saturday, Sunday or public holiday) when clearing banks in Ireland are open for business; |
| Commencement Date | means the date of this Agreement; |
| Confidential Information | has the meaning as detailed in clause 9; |
| Consumer Price Index | means the Consumer Price Index of Ireland; |
| Customer Premise Equipment | means any equipment owned by, leased to or otherwise used by the Company in connection with the Customer's communications network, but excluding the Copper or Fibre cabling; |
| Data Processor Agreement | means the data processor agreement that may be required further to clause 18 and clause 28 hereto; |
| Emergency | means an event consisting of an unplanned material disruption to service or unplanned reduction in or degradation of the quality of the Service; |
| Equipment | means any equipment supplied by DigitalWell to Customer from time to time in connection with the Services and to be paid for by Customer which is more particularly described in the relevant schedules hereto; |
| EURIBOR | means the Euro Interbank Offered Rate; |
| Fault | means a material defect, fault or impairment in the Service; |
| Fees | means the amounts payable by Client as described in the Order Form; |
| GDPR | means the General Data Protection Regulation ((EU) 2016/679); |
| Global Rates Price List | means the then current price list as issued by the Company from time to time setting out the Companies Call Charges; |
| Intellectual Property Rights | means any and all of the following as may be recognised by law in any jurisdiction throughout the world; all intellectual property rights including without limitation, patents, inventions, copyright (including but not limited to all rights in respect of software), trademarks, database rights, design rights, topography rights, whether or not any of these is registered and including any applications for registration of any such rights, know-how, confidential information and trade secrets (including designs, processes or products that are to become or may become the subject of an application as aforesaid) and all rights or forms of protection of a similar nature or having similar effect to any of these that may exist anywhere in the world; |
| OEM | means an original equipment manufacturer or a distributor acting on behalf of such legal entity from whom the Company purchases goods; |
| Services | means supply and provision of as well as ongoing access to and use of the system(s), products and services by a Customer as more detailed in the Statement of Work and Orders; |
| Service Levels | means the service levels for each Service which are set out in the relevant product schedule (where applicable); |
| Site | means any location at which equipment is installed, temporarily or otherwise, for the purposes of providing the Services; |
| Site Requirements | means all site requirements specified by the Company to the Customer |
| Subscription(s) | means a periodic charge payable by a Customer to secure access to certain systems and thereby delivery of the Services; |
| Term | has the meaning set out in clause 2; and |
| Terms and Conditions | means the terms and conditions set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Customer and the Company. |