Sentient Solutions Limited
Access to the SaaS Services, this Website and the use of information thereon is subject to these Terms and Conditions. You should carefully read these Terms and Conditions. By proceeding further and/or using the SaaS Services, you will be deemed to have accepted them.
1. DEFINITIONS AND INTERPRETATION
1.1 The definitions and rules of interpretation in this clause apply in this Agreement:
APIs: application programming interfaces;
Affiliate: any entity directly or indirectly controlling or controlled by or under direct or indirect common control with another entity; and “control” means the beneficial ownership of more than 50% of the issued share capital or the legal power to direct or cause the direction of the general management of the company, partnership or other entity in question (including the right to appoint or remove the majority of the board of directors of the company).
Agreement: the Master Services Agreement (“MSA”) signed by Sentient and Customer, these Terms of Service, the Order Form(s), SLA, DPA and any ancillary agreements or documents incorporated by reference herein.
Authorised Users: those employees, contractors, subcontractors, and agents who are authorised by Customer to use the Services.
Business Day: a day other than a Saturday, Sunday or public holiday, Ireland (as applicable) when banks in Dublin are open for business.
Business Hours: 9.00 am to 5.30 pm local Irish time, each Business Day.
Confidential Information: means any information disclosed (whether in writing, orally or by another means and whether directly or indirectly) by either party to the other party whether before, on or after the date of this Agreement which ought reasonably to be regarded as confidential including, without limitation, information relating to the disclosing party’s products, services, operations, processes, plans or intentions, product information, know-how, design rights, trade secrets, market opportunities, business and financial affairs or other materials of a confidential nature.
Customer: the customer executing the MSA, and shall also include reference to “you” and “your”.
Customer Data: All documents, information, data, items and materials in any form, whether owned by the Customer or a third party, which are provided by the Customer to Sentient in connection with the Services.
DPA: the data processing agreement available at Data Processing Agreement which forms part of this Agreement
Data Protection Legislation: means: (a) the General Data Protection Regulation (Regulation (EU) 2016/679) (“GDPR”); (b) the Irish Data Protection Acts 1988 and 2018; (c) the European Communities (Electronic Communications Networks & Services) (Privacy & Electronic Communications) Regulations 2011; (d) the UK GDPR and the UK Data Protection Act 2018; (e) the EU ePrivacy Directive 2002/58/EC (as amended) (the “ePrivacy Directive”); and (f) any relevant transposition of, or successor or replacement to the laws detailed at (a) to (e) inclusive; and all other industry guidelines (whether statutory or non-statutory) or applicable codes of practice and guidance notes issued from time to time by the Irish Data Protection Commissioner or other relevant national or supra-national authority relating to the processing of Personal Data or privacy; all as amended, re-enacted and/or replaced from time to time, and any other applicable legislation relating to the collection, processing, transfer, or retention of personal data.
Effective Date: the effective date of the Agreement as set out on the MSA.
Fees: the fees and charges for the Services as set out in each Order Form(s).
Initial Term: the initial term of this Agreement as set out in the MSA.
Intellectual Property Rights: any and all intellectual property rights of any nature, whether registered, registerable or otherwise, including patents, trade dress, trade secrets, patentable rights, copyright, design rights, utility models, trademarks (whether or not any of the above are registered), trade or business names, goodwill, rights in domain names, rights in inventions, rights in data, moral rights, database rights, rights in know-how and confidential information, and any other intellectual property rights that subsist in computer software, computer programs, websites, documents, information, techniques, business methods, drawings, logos, instruction manuals, lists and procedures and particulars of customers, marketing methods and procedures and advertising literature, including the “look and feel” of any websites source code and all intellectual property rights concerning a technology application, and all other intellectual and industrial property and similar or analogous rights existing under the laws of any country and all pending applications for and right to apply for or register the same (present, future and contingent, and including all renewals, extensions, revivals and all accrued rights of action).
Order Form: the ordering document(s) signed by Customer and Sentient confirming the order for the Services subject to these Terms of Service.
Platform: the online software platform and applications from which Sentient makes the Services available.
Renewal Term: the period(s) described in clause 11.1.
ScoreBuddy Service Description Document: the Services description document, a copy of which has been provided to Customer.
Sentient: means Sentient Solutions Limited trading as Scorebuddy.
Services: access to Sentient’s multichannel call centre quality assurance solution for call centres and outsourcers with functionality as per the current version of ScoreBuddy Service Description Document. The scope of the Services subscribed by Customer for this Agreement is as per the agreed Order Form(s).
Service Level Agreement or SLA: the service level agreement setting out service level commitments, performance standards and service credits applicable to the Services available at Service Level Agreement.
Term: the Initial Term together with any subsequent Renewal Term(s).
User Documentation: the knowledge and training documentation provided by Sentient to Customer in respect of the Services and available at https://intercom.help/scorebuddy-b32c18522ac7/en/.
Virus: any thing or device (including any software, code, file or program) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any program or data, including the reliability of any program or data (whether by re-arranging, altering or erasing the program or data in whole or part or otherwise); or adversely affect the user experience, including worms, ransomware, time or logic bombs, worms, trojan horses, viruses and other similar things, techniques or devices.
1.2 Clause, schedule and paragraph headings shall not affect the interpretation of this Agreement. A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors or permitted assigns. A reference to a Sentient shall include any company, corporation or other body corporate, wherever and however incorporated or established. Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular. Reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it. A reference to writing or written includes e-mail.
1.3 In the event, and to the extent only, of any conflict between the terms of any Order Form and any terms of these Terms of Services, the terms of the Order Form shall prevail.
2. SERVICES
2.1 Subject to the terms and conditions of this Agreement, Sentient hereby grants to Customer a non-exclusive, non-transferable right (save in accordance with clause 14.6), without the right to grant sublicenses, of access to and use of (and to permit the Authorised Users to access and use) the Services during the Term.
2.2 Customer may designate an Authorised User as an administrator (or “master” administrator) with control over Customer’s service account, including management of Authorised Users and Customer Data. Customer is fully responsible for its choice of administrator and any actions they take. Customer agrees that Sentient’s responsibilities do not extend to the internal management or administration of the Services for Customer.
2.3 Each Authorised User must create and use unique access credentials, which may not be shared or used by more than one Authorised User. Customer shall ensure its Authorised Users do not share their access credentials with any other person or permit any other person to access the Services and shall be responsible for any unauthorised usage that occurs due to misuse of its log-in credentials.
2.4 Customer shall cooperate with Sentient in all matters relating to the Services and will give Sentient timely access to any Customer Data and systems reasonably necessary for Sentient to provide the Services, and if Customer fails to do so, Sentient’s obligation to provide the Services will be excused until access is provided. Where applicable, Customer will ensure the availability of appropriately qualified internal IT or development resources during onboarding of the Services to support the delivery of integrations using the open API.
2.5 Additional or amended Services may be agreed by the parties in a new Order Form. Once an Order Form is agreed by the parties it shall form part of this Agreement.
2.6 Affiliates of Customer may procure Services from Sentient under the terms and conditions of this Agreement, provided that each such Affiliate enters into an Order Form for such Services, referencing this Agreement. Any Affiliate that enters into such Order Form with Sentient will be deemed to be “Customer” hereunder, provided that such Order Form together with these Terms of Service, will constitute a separate contract with such Affiliate.
3. CUSTOMER OBLIGATIONS
3.1 Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and, in the event of any such unauthorised access or use, promptly notify Sentient. Customer shall be responsible for the acts and omissions of its Affiliates and Authorised Users who access the Services, as though they were the acts and omissions of Customer. Customer agrees to indemnify and hold harmless Sentient, its Affiliates and subcontractors against any claims, costs, losses, damages, liabilities or expenses arising from the acts or omissions of its Affiliates and Authorised Users.
3.2 Customer shall not during the course of its use of the Services access, store, distribute or transmit any Viruses, or any material that: (i) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing, racially or ethnically offensive or depicts sexually explicit images; or (ii) facilitates illegal activity, depicts sexually explicit images, promotes unlawful violence; or (iii) is discriminatory or otherwise illegal or causes damage or injury to any person or property; (iv) contains any unsolicited or unauthorised advertising, promotional, spam or marketing materials; or (v) encourages conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable law or regulation.
3.3 Customer shall not, 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 Services in any form or media or by any means; (ii) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of Services; (iii) use or interfere with the Platform or Sentient’s website in a manner which could damage, disable, disrupt, overload or impair the Platform and Services; (iv) access all or any part of the Services in order to build a product or service which competes with the Services; (v) work around any technical limitations in the Services; or (vi) attack our Services via a denial-of-service attack or a distributed denial-of-service attack.
3.4 Customer shall: (i) comply with all applicable laws and regulations with respect to its activities under this Agreement; (ii) obtain and shall maintain all necessary licences, consents, and permissions (if any) in respect of Customer’s systems and software for Sentient to perform the Services; and (iii) ensure that its network and systems comply with specifications provided by Sentient. Customer will be solely responsible for procuring and maintaining its network connections and for all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to Customer's network connections or telecommunications links.
3.5 Customer acknowledges that it is solely responsible for ensuring that its use (and the use of its Authorised Users) of the Services do not infringe this clause 3. Without prejudice to Sentient’s other rights in law or equity, Sentient reserves the right, without liability to Customer, to suspend or disable Customer’s or any Authorised Users access to the Services where Customer breaches the provisions of this clause 3 and fails to remedy such breach within 10 days of being notified by Sentient to do so, and Customer shall not thereby be entitled to claim any refund or compensation for such suspension; provided however that where such breach of same: (a) violates or may violate any applicable law; or (b) has or may have a material adverse impact on Sentient’s ability to provide the Services to its clients; or (c) impacts on the integrity and security of the Platform, then no remedy period shall be granted to Customer prior to Sentient exercising the suspension or disablement rights herein. Customer shall not thereby be entitled to claim any refund or compensation for such suspension or disablement and shall remain responsible for all Fees during any period of suspension.
3.6 While Sentient does not moderate Customer’s use of the Services, it may report any illegal activity it discovers to the relevant authorities.
4. FEES AND PAYMENT
4.1 Sentient shall invoice Customer and Customer shall pay the Fees in accordance with the provisions of the Order Form and this clause 4. Fees for Renewal Terms shall be at Sentient’s then-current rates, regardless of any discounted pricing in a prior Order Form.
4.2 All Fees are non-cancellable and non-refundable unless stated elsewhere in the Agreement and are exclusive of all sales, use, value-added, withholding and other taxes and duties which shall be added to Sentient's invoice(s) at the appropriate rate. Customer will pay all taxes, tariffs and duties (including withholding tax) assessed in connection with this Agreement. Customer shall pay all Fees in full without set off or counterclaim.
4.3 Should Customer have a bona fide dispute in respect of all or any part of any invoice(s) it will notify Sentient of the nature of that dispute in writing within ten (10) days of receipt of the invoice giving the relevant details. Following any such notice, Customer will be entitled to withhold payment of the amount in dispute without interest but will pay the undisputed amount(s) in accordance with this Agreement. The parties will cooperate in good faith to resolve any such dispute as amicably and promptly as possible and on settlement of the dispute Customer will make the appropriate payment in accordance with this Agreement.
4.4 If Sentient has not received payment of undisputed Fees within fifteen (15) days after the due date in accordance with the payment terms set out in the Order Form, and without prejudice to any other rights and remedies of Sentient, Sentient may, subject to providing a further fifteen (15) days’ written notice, without liability to Customer, disable Customer’s password, account and suspend access to all or part of the Services and Sentient shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid. In addition, interest shall accrue on a daily basis on such outstanding amounts due at an annual rate equal to four (4) percentage points above the then current prime rate as set forth by either the Wall Street Journal (if Customer is paying in United States Dollars) or the European Central Bank’s reference rate (if Customer is paying in Euros, Canadian Dollars or Pound sterling) or if such rate shall exceed any applicable permissible legal interest rate, then at the highest legally permissible rate, commencing on the due date and continuing until fully paid, whether before or after judgment. Customer shall be liable for all costs incurred by Sentient in recovering the outstanding amounts, including but not limited to legal fees, court costs, and fees charged by debt collection agencies.
4.5 Sentient may increase the Fees at the end of the Initial Term and any Renewal Term by giving Customer not less than sixty (60) days’ written notice with such notice to expire at the end of the Initial Term or Renewal Term as the case may be. During this notice period the Customer can either: (i) accept the increase in the Fees by continuing to avail of the Service; or (ii) reject the increase in Fees and issue a notice to Sentient of their intention to terminate this Agreement on the expiration of the Initial Term or Renewal Term, as the case may be.
5. SUPPORT AND SLA
5.1 Sentient shall use all reasonable endeavours provide the Services in accordance with the Service Level Agreement. Customer may contact Sentient for support in relation to the Services during Business Hours by contacting Sentient support in accordance with the SLA. While Sentient shall exercise all reasonable endeavours to maintain the availability of the Services and associated support services, the Services and associated support services may be unavailable from time to time for limited durations, dependent on maintenance, service updates, server downtime, third party actions, and other Force Majeure events.
6. WARRANTIES AND DISCLAIMER
6.1 Each party warrants that it has the full corporate power: (i) to enter into this Agreement; (ii) to carry out its obligations hereunder; and (iii) to grant the rights herein granted to the other party.
6.2 Customer warrants that Customer Data provided to Sentient by or on behalf of Customer: (i) is owned by Customer or is provided with the express consent from the third party holding any ownership rights (including copyright) over such material, or, alternatively, are in the public domain, and are not owned by any third party or otherwise covered by copyright laws; (ii) do not breach the rights of any person or entity, including rights of publicity, privacy, or under applicable Data Protection Legislation or direct marketing laws and are not defamatory; and (iii) do not result in consumer fraud (including being false or misleading), product liability, tort, breach of contract, breach of Intellectual Property Rights, injury, damage or harm of any kind to any person or entity.
6.3 Sentient warrants that: (i) the Services shall perform in accordance with the User Documentation in all material respects; (ii) it shall obtain and maintain all necessary licenses and consents as required to enable Sentient to provide the Services; and (iii) it shall comply with all applicable laws in its performance of its obligations under this Agreement.
6.4 Other than with respect to the express warranties set forth herein, the Services are provided “as is” and all warranties express or implied, representations, conditions and all other terms of any kind whatsoever implied by statute or common law, including those of non-infringement, merchantability and fitness for a particular purpose, all are, to the fullest extent permitted by applicable law, are hereby disclaimed and excluded by Sentient from this Agreement. Customer is solely responsible for determining the suitability of the Services for its use in light of any applicable legislation or regulations.
6.5 Sentient does not warrant that Customer’s use of the Services will be uninterrupted or error-free or that the Services will operate in combination with third party services used by Customer save where otherwise agreed. The Service may be subject to limitations, delays and other problems inherent in the use of the internet and electronic communications. Sentient is not responsible for any delays, delivery failures, or other damage resulting from inherent problems, including but not limited to, the transfer of data over communications networks and facilities, including the internet.
6.6 Sentient reserves the right to introduce new or enhanced features and functionalities to the Services which do not negatively impact the Services.
7. DATA
7.1 In providing its Services under this Agreement, Sentient may be required to process Personal Data on Customer’s behalf. In such circumstances, the parties record their intention that Customer and its Affiliates (as applicable) shall be the controller and Sentient shall be a processor and each party shall comply with the DPA.
7.2 Sentient shall own all rights, title, and interest in and to any and all data generated, collected, or derived from its customer’s use of the Platform, including but not limited to usage data, performance metrics, analytics, statistics and any aggregated or anonymized data or insights derived therefrom. Such data may be used by Sentient for its business purposes, including to improve the Platform and develop new products or services. This data shall be irreversibly anonymized and shall not be considered personal data under Data Protection Laws and shall not include any Customer Data or Customer Confidential Information.
7.3 Gen AI Closed Instance Provision. Any generative artificial intelligence (“GenAI”) capabilities provided to Customer as part of the Services will be deployed on a standalone, closed instance of Microsoft Azure and Amazon Web Services. This ensures a dedicated, secure and private environment exclusively for Sentient’s use, isolated from other third party environments. Customer Data will not be available to other Sentient customers. Customer Data will not be: (i) available to large language models; (ii) utilised for training large language models; or (iii) used to improve any third party’s products or services; unless explicitly agreed in writing by Customer in advance. All Customer Data processed within the GenAI capabilities of the Services remains the Confidential Information of Customer and is used solely for the purpose of delivering the Services. The GenAI capabilities do not store or log any data submitted during interactions. All data processing is ephemeral, meaning Customer information is not retained once the response is generated. In addition, the GenAI capabilities are an optional enhancement of the Services, which can only be activated by Sentient upon contractual agreement with the Customer to do so.
8. INTELLECTUAL PROPERTY RIGHTS
8.1 Customer acknowledges and agrees that Sentient and/or its licensors own all Intellectual Property Rights in the Services and Platform (including any modifications or enhancements thereto) and shall remain the property of Sentient and/or its licensors. Except as expressly stated herein, this Agreement does not grant 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 and Platform.
8.2 All Customer Data shall be and remain the property of Customer, and/or its licensors, as the case may be. Customer shall own all right, title and interest in and to all of Customer Data and shall have sole responsibility and liability for the legality, reliability, integrity, accuracy and quality of all such Customer Data. Customer hereby grants Sentient a royalty-free, non-exclusive licence to use the Customer Data for the Term of this Agreement solely for the purposes of carrying out its obligations under this Agreement.
9. INDEMNITY
9.1 Sentient will indemnify Customer in respect of any and all third party claims, suits, demands and actions and for resulting damages, awards of damages, losses, costs, expenses and liabilities (including reasonable legal fees) to the extent arising out of claims by third parties that the Services infringes a third-party’s copyright, trademark existing or patent granted as of the date of delivery in any country in which the Services are delivered. If Services are or are likely to be held to be infringing, Sentient will at its expense and option either: (i) procure the right for Customer to continue using it; (ii) replace it with a non-infringing equivalent; (iii) modify it to make it non-infringing; or (iv) terminate this Agreement and refund to Customer fees paid for any unused portion of the Services.
9.2 Notwithstanding the above, Sentient shall have no liability to Customer to the extent that any claim is based upon: (i) modifications to the Services made by anyone other than Sentient or a party authorised by Sentient; (ii) combination of the Services with software not provided by Sentient or specified in any agreed documentation; (iii) the use of the Customer Data in the development of, or the inclusion of the Customer Data, in the Services; (iv) any failure of Customer its employees or agents in breach or violation of this Agreement, or applicable laws or regulations; or (v) Customer or Authorised User’s unauthorised use or misuse of the Services.
9.3 The rights granted to Customer under clause 9.1 shall be Customer’s sole and exclusive remedy and Sentient’s entire liability for any alleged or actual infringement of Intellectual Property Rights of any third party.
9.4 Customer shall defend indemnify and hold harmless Sentient, its Affiliates and each of its officers, employees, agents and subcontractors from and against all claims, demands, damages, awards of damages, losses, costs, expenses and liabilities (including any regulatory fines and reasonable legal fees) that result or arise in connection with Customer or its Authorised User’s: (i) unauthorised use or misuse of the Services; (ii) infringement or violation of Sentient’s Intellectual Property Rights; (iii) breach of applicable law including violations of third party rights due to Customer’s or Authorised User’s use of the Services and/or the provision of Customer Data to Sentient; or (iv) breach of warranty in clause 6.2.
9.5 The indemnities set forth in this Agreement are conditioned on the following: (i) the party claiming indemnification (the “Indemnitee”) shall promptly notify the indemnifying party (the “Indemnitor”) of any matters in respect of which it seeks to be indemnified, and shall give the Indemnitor full cooperation and opportunity to control the response thereto and the defense thereof, including without limitation any settlement thereof (provided that the Indemnitor will not enter into any settlement of such claim without the prior approval of the Indemnitee, which approval will not be unreasonably withheld); (ii) the Indemnitor shall have no obligation for any claim under this Agreement if the Indemnitee makes any admission, settlement or other communication regarding such claim without the prior written consent of the Indemnitor, which consent shall not be unreasonably withheld; and (iii) the Indemnitee’s failure to promptly give notice to the Indemnitor shall affect the Indemnitor’s obligation to indemnify the Indemnitee only to the extent the Indemnitor’s rights are materially prejudiced by such failure. The Indemnitee may participate, at its own expense, in such defense and in any settlement discussions directly or through counsel of its choice.
10. LIMITATION OF LIABILITY
10.1 Nothing in this Agreement limits or excludes liability of either party in respect of any claims for death or personal injury caused by negligence, fraud or any other liability which cannot be excluded or limited by law.
10.2 To the maximum extent permitted by applicable law, Sentient will not have any liability to Customer for any loss of profits, loss of business, loss of revenue, loss of data, reputational damage, or for any indirect, special, incidental, punitive, or consequential damages however caused and under any theory of liability whether or not Sentient has been advised of the possibility of such.
10. 3 Subject to clauses 10.1 and 10.2, to the maximum extent permitted by applicable law, Sentient’s and its Affiliates total aggregate liability arising out of or related to this Agreement or the Services under any theory of law (including liability for negligence or breach of statutory duty or an indemnity claim) shall not exceed the total amount of the Fees actually paid or payable by Customer to Sentient for the Services in the twelve (12) months preceding the claim under which the liability has arisen.
11. TERM AND TERMINATION
11.1 This Agreement shall commence on the Effective Date and shall unless otherwise terminated as provided in this clause 11 continue for the Initial Term. Thereafter, this Agreement shall automatically renew for Renewal Terms of twelve (12) months each unless either party notifies the other party of termination, in writing, at least sixty (60) days before the end of the Initial Term or any Renewal Term, in which case this Agreement shall terminate upon the expiry of the applicable Initial Term or Renewal Term or otherwise terminated in accordance with the provisions of this Agreement.
11.2 Sentient may immediately terminate this Agreement by notice in writing to Customer if Customer fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than thirty (30) days after being notified in writing to make such payment.
11.3 Either party shall be entitled, without prejudice to the rights and remedies otherwise available under this Agreement or by law, to terminate the Agreement on written notice in the event of:
11.3.1 a material breach of this Agreement by the other party which, if capable of remedy, is not remedied by the defaulting party within thirty (30) days of its receipt of written notice of the breach from the non-defaulting party;
11.3.2 Fraud or wilful default of the other party; or
11.3.3 the other party is unable to pay its debts, or becomes insolvent, or is subject to an order or a resolution for its liquidation, administration, winding-up or dissolution (otherwise than for the purposes of a solvent amalgamation or reconstruction), or has an administrative or other receiver, manager, trustee, liquidator, administrator or similar officer appointed over all or any substantial part of its assets, or enters into or proposes any composition or arrangement with its creditors generally, or is subject to any analogous event or proceeding in any applicable jurisdiction.
11.4 On termination of this Agreement for any reason:
11.4.1 Customer shall immediately pay to Sentient all amounts due and owing up to the date of termination;
11.4.2 all licences and rights of access granted under this Agreement shall immediately terminate;
11.4.3 each party shall return and make no further use of any Confidential Information, property, documentation and other items (and all copies of them) belonging to the other party;
11.4.4 upon receipt of a written request, Sentient shall use reasonable commercial endeavours to deliver a back-up of Customer Data to Customer within thirty (30) days of its receipt of such a written request, provided that Customer has at that time paid all fees and charges outstanding at and resulting from termination. If Sentient does not receive any such request within thirty (30) days of the date of termination, it may destroy or otherwise dispose of any of Customer Data in its possession; and
11.4.5 any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination shall not be affected or prejudiced.
11.4.6 Should the Customer elect to terminate this Agreement prior to the expiry of the Term (save for termination for ‘cause’ under clause 2(a)), the Customer shall be obliged to pay 80% of the average fees that it was invoiced by Sentient in the three months prior to the date the termination notice is received, each month for the remainder of the Term.
12. CONFIDENTIALITY
12.1 Each party (the “Receiving Party”) acknowledges that, in the course of this Agreement, it may obtain Confidential Information from the other party, (the “Disclosing Party”). The Receiving Party shall keep in confidence and protect the Confidential Information of the Disclosing Party from unauthorised disclosure or dissemination and use no less than that degree of care it uses to protect its own like information, and in any event no less than reasonable care. The Receiving Party shall not use such Confidential Information except in furtherance of this Agreement.
12.2 The Receiving Party shall not disclose any Confidential Information to any person without the Disclosing Party’s prior written consent except that the Receiving Party may disclose the Confidential Information to its officers, employees, independent contractors and agents (“Representatives”) on a “need-to-know” basis, provided that such Representatives are bound by a written agreement with materially the same terms and conditions as this clause 12 and the Receiving Party remains ultimately liable for any breach thereof. In addition, either party may provide a copy of this Agreement or otherwise disclose its terms in connection with any audit, financing transaction, regulatory or due diligence inquiry provided the recipients are subject to obligations of confidentiality at least as restrictive as those contained herein. Except as expressly provided in this Agreement, no ownership or license rights are granted in any Confidential Information.
12.3 The obligations of confidentiality shall continue during the term of this Agreement and thereafter for a period of five (5) years, unless and until such Confidential Information falls within one of the exceptions outlined in clause 12.4.
12.4 This clause 12 shall not apply with respect to information the Receiving Party can document: (a) is in the public domain as a result of no act or omission of the Receiving Party or its employees or agents; (b) is received by the Receiving Party from third parties without restriction and without breach of a duty of nondisclosure by such third party; (c) was independently developed by the Receiving Party without reliance on the Confidential Information as evidenced by its written records at the time; or (d) was, prior to its receipt by the Receiving Party from the Disclosing Party, in the possession of the Receiving Party and at its free disposal.
12.5 If the Receiving Party is confronted with legal action to disclose the Confidential Information received under this Agreement from the Disclosing Party or it is required to be disclosed by operation of law, the Receiving Party shall, unless prohibited by the applicable laws, provide prompt written notice to the Disclosing Party to allow the Disclosing Party an opportunity to seek a protective order or other relief that it deems appropriate, and the Receiving Party shall reasonably assist the Disclosing Party in such efforts. If disclosure is nonetheless required, the Receiving Party shall limit its disclosure to only the portion of the Confidential Information which must be disclosed as advised by its legal counsel.
12.6 Any breach or threatened breach by the Receiving Party of an obligation under this clause 12 may cause the Disclosing Party immediate and irreparable harm for which damages alone may not be an adequate remedy. Consequently, the Disclosing Party has the right, in addition to other remedies available at law or in equity, to seek injunctive relief against the Receiving Party or to compel specific performance of this clause 12.
12.7 A Receiving Party must notify the Disclosing Party in writing, giving full details known to it immediately, when it becomes aware of any actual, suspected, likely or threatened breach by any person of any obligation in relation to the Confidential Information, or any actual, suspected, likely or threatened theft, loss, damage, or unauthorised access, use or disclosure of or to any Confidential Information.
13. FORCE MAJEURE
Neither party shall have any liability to the other party under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm, pandemic, epidemic, strikes, lock-outs or other industrial disputes, provided that the party notified of such an event and its expected duration. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations, provided that if the period of delay or non-performance continues for one (1) month, the party not affected may terminate this Agreement by giving one (1) calendar month written notice to the other party. Force Majeure shall not prevent or delay the payment of any sum due or to be due by either party.
14. MISCELLANEOUS
14.1 Non-solicitation. Each party hereby covenants to the other party that it shall not, and it shall procure that its Affiliates shall not, during the Term and for the period of twelve (12) months from the termination or expiry of this Agreement, solicit the services of, or endeavour to entice away from the other party any director, employee, contractor or consultant of the other party, without the prior written consent of the other party.
14.2 Commitment to Ethical Sourcing. Sentient ensures that integrity and ethical practices are upheld throughout its operations. Sentient mandates that all its suppliers and business partners comply with ethical sourcing best practice, which explicitly prohibits slavery, servitude, forced or compulsory labour, and human trafficking. Sentient reserves the right to conduct due diligence to confirm compliance and require transparent and auditable processes from its suppliers. In the event of any supplier's failure to meet its standards, Sentient is committed to taking appropriate actions, which may include contract review, termination, and legal action to uphold these ethical standards. By agreeing to our terms of service, our customers acknowledge and support this commitment to maintain a responsible supply chain.
14.3 No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law, or a single or partial exercise of such right or remedy, shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy.
14.4 If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
14.5 Entire Agreement. This Agreement, and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover. Additional Order may be agreed between the parties referencing this Agreement, each of which shall form part of this Agreement.
14.6 Either party may assign, novate or transfer on written notice all of its rights and obligations under this Agreement to: (i) an Affiliate; (ii) a purchaser of all or substantially all assets related to this Agreement; or (iii) a third party participating in a merger, acquisition, sale of assets or other corporate reorganization in which a party is participating. Any attempt to assign this Agreement in violation of this provision shall be void and of no effect. This Agreement will bind and inure to the benefit of the parties and their respective permitted successors and assigns.
14.7 Neither party may publicly announce this Agreement except with the other party’s prior consent or as required by applicable laws. However, Sentient may include Customer and its trademarks in Sentient’s customer lists and promotional materials but will cease this use at Customer’s written request.
14.8 No agency. Nothing in this Agreement is intended to or shall operate to create a partnership or joint venture between the parties, or authorize either party to act as agent for the other.
14.9 Any notice to be given by either party for the purposes of the Agreement shall be sent by mail/email to the contact party whose details are set out in the Order Form. A notice delivered: (i) by post if correctly addressed by prepaid registered delivery shall be deemed delivered two Business Days from the date of posting and five Business Days for pre-paid registered airmail; and (ii) by email shall be deemed to have been received at 9.00am on the next Business Day after transmission.
14.10 Any obligations and duties which by their nature extend beyond the expiration or termination of this Agreement will survive the expiration or termination of this Agreement. Without limiting the foregoing, the following clauses shall survive the termination or expiration of this Agreement: clause 3, 6, 7, 8, 9, 10, 11, 12, 13 and this clause 14.
14.11 No variation of an Order Form shall be valid or effective unless it is in writing, expressly refers to this Agreement, and is duly signed or executed by or on behalf of each Party. Sentient may amend these Terms of Service from time to time. Amendments that do not materially adversely affect Customer’s rights or obligations may be made without prior notice and will take effect upon publication or update. Sentient will provide prior written notice of any amendment that materially adversely affects Customer’s rights or obligations. If Customer reasonably determines that such amendment has a material adverse effect and provides written notice of termination within thirty (30) days of receipt of notice of the amendment, Customer may terminate this Agreement with effect from the date the amendment would otherwise take effect. If Customer does not terminate within such thirty (30) day period, Customer shall be deemed to have accepted the amended Terms of Service.
14.12 This Agreement may be executed in any number of counterparts, each of which when executed and delivered shall constitute an original of this Agreement, but all the counterparts shall together constitute the same agreement. The parties acknowledge that they may use an electronic signature process to sign this Agreement and agree to be bound by any such electronic signature which they have applied to the Agreement. The exchange of a fully executed version of this Agreement (in counterparts or otherwise) by electronic transmission (including .pdf or any electronic signature complying with Regulation (EU) N°910/2014 (eIDAS Regulation), e.g. www.docusign.com) and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes and shall be sufficient to bind the parties to the terms and conditions of this Agreement. No exchange of original signatures is necessary.
14.13 Dispute Resolution. The parties shall do their best acting in good faith to settle amicably any dispute, controversy or claim arising out of or in connection with the existence, validity, construction, performance and termination of the Agreement (or any terms thereof). Escalation to the senior management (or the C-Suite) of the parties shall be the preferred dispute resolution methodology. If senior management (or the C-Suite) cannot resolve the dispute within 30 days of first notification of the dispute the matter shall be referred to the courts in accordance with clause 14.14.
14.14 Governing Law and Jurisdiction. 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 solely and exclusively by the laws of the Republic of Ireland. The parties irrevocably agree that the courts of the Republic of Ireland have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).
