Terms & Conditions

Welcome to Gemmo AI Ltd.

These Gemmo AI Terms of Service (“Terms”) are a binding contract between you and Gemmo AI Ltd. (“Gemmo AI,” “we” and “us”) that sets forth your rights and responsibilities as a user of our Services. “You”, “Customer”  means the entity you represent in accepting these Terms or, if that does not apply, you individually. If you are agreeing to these Terms on behalf of a party that you represent (e.g., your employer, your business, or another entity), you represent and warrant that:

(i) you have full legal authority to bind such other party to these Terms;

(ii) you have read and understand these Terms; and

(iii) you agree to these Terms on behalf of the party that you represent.

If you have any questions, comments, or concerns regarding these Terms or the Services, please contact us at: [email protected].

Gemmo AI is an online platform for cloud-based AI models, workflows, applications, datasets, UI modules, and other materials (“Platform Content”) which is hosted by Gemmo AI Ltd.  Your selection or use of Gemmo AI technology is subject to these Terms.

While we may provide information, tools, or third-party links for your convenience, you are ultimately responsible for independently determining whether any tool  is appropriate for your use. By using Gemmo AI, you are agreeing to be bound by these Terms. If you do not agree to these Terms, do not use or access Gemmo AI technology. 

(1) Interpretation

(1.1) The definitions and rules of interpretation in this clause apply in this Agreement:

“Acceptance Criteria” means the criteria agreed between the Parties that the Deliverables shall meet in the Acceptance Tests;

“Applications” refers to digital programs designed to perform specific tasks by an end-user. These may be “web applications”, operating on remote servers and accessible via the internet; “edge applications”, deployed near the source of data or at the boundaries of a network for improved efficiency; or “desktop applications”, installed and run locally on a personal computer.

“APIs” means a connection between computers or between computer programs. It is a type of software interface, offering a service to other pieces of software. Typically, they encapsulate a ML Pipeline and they are made available on the web through a Deployment infrastructure.

“Acceptance Tests” means a set of tests as may be agreed between the Parties designed to establish whether the Deliverables meets the Acceptance Criteria;

“Affiliate” means includes, in relation to either party, each and any subsidiary or holding company of that party and each and any subsidiary of a holding company of that party;

“Agreement” means these terms and conditions together with all schedules and SOWs and any other documents incorporated by reference herein;

“Background IP” means Intellectual Property brought by a Party for use under a SOW which is owned by or licensed to a Party before the date of issue of a SOW, or otherwise developed or acquired by a Party.

“Business Day” means a day other than a Saturday, Sunday or public holiday in the Republic of Ireland when banks are open for business;

“Charges” means all amounts set out in a SOW in respect of the Services;

“Customer Materials” means all information, data, drawings, specifications and other materials supplied by the Customer to Gemmo;

“Data Protection Laws” means the General Data Protection Regulation (GDPR) (EU) 2016/679 and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications) and the guidance and codes of practice issued by the relevant data protection or supervisory authority and applicable to a party;

“Deliverables” means the deliverables to be licensed to Customer as set out in a SOW and subject to the Service Tiers and licensing terms in Schedule 1

“Effective Date” means the date of execution of this Agreement;

“Intellectual Property Rights” means patents, utility models, rights to inventions, copyright and neighbouring and related rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;

“Labels” means an organised structure of labels typically represented under the form of a tree or graph where each label is a node and one or multiple nodes can be linked together through an “arc” encoding relations such as parent – child;

“Models” means “serialised”, and self-contained files resulting from the process of training a Machine Learning algorithm. Such files are trained to recognise certain types of patterns while used in conjunction with Inference software interface. The models are typically trained using a Training software interface. This interface loads Data and corresponding Labelled data, and uses Third-party Machine learning Software Libraries to generate the Machine Learning Models.

“Services” means the services that Gemmo provides to the Customer to deliver the Deliverables in accordance with the Service Tier as set out in a SOW;

“Sprint” means a two week period during which Gemmo provides an agreed set of tasks and/or Deliverables as part of the delivery of the Services;

“Statement of Work or SOW” means a statement of work setting out the Services to be provided to the Customer together with the Deliverables, fees, payment terms and any other terms agreed between the Parties. A template Statement of Work is set out in Schedule 2;

“Service Tier(s)” means the tiers in respect of the Services available to Customers as set out in Schedule 1 and identified in a SOW;

“Term” means three (3) years from the Effective Date;

“Territory” means where a territory is specified in a SOW; 

“Training” refers to the specific set of tools, algorithms or protocols within a software application that facilitate the training of machine learning models. These Software interfaces may include functions for Data and Labels ingestion, preprocessing, model configuration, training execution, and evaluation; and 

“Use” means to copy, reproduce, store, distribute, publish, export, adapt, edit and translate. 

(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 company 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. References to clauses and Schedules are to the clauses and Schedules of this Agreement and references to paragraphs are to paragraphs of the relevant Schedule. 

(2) Framework for Services  

(2.1) This Agreement creates a framework for the provision of Services to Customer by Gemmo on a Statement of Work basis and sets out the terms and conditions that will apply to and be incorporated into a Statement of Work between the Parties. 

(2.2) If Customer requests Services from Gemmo and Gemmo is willing to provide such Services, the Parties shall enter into a Statement of Work.  Save where otherwise agreed by the Parties, nothing in this Agreement obliges Customer to enter into a Statement of Work or guarantees any volume commitment by Customer.

(2.3) Each Statement of Work shall constitute a separate binding contract between Customer and Gemmo, and incorporate the terms and conditions of this Agreement. A Statement of Work shall not enter into force, be legally binding or have any other effect unless it has been signed by the authorised representatives of both parties and as at the date the Statement of Work is signed, this Agreement has not been terminated. 

(2.4) Once a Statement of Work has been agreed and signed in accordance with clause 2.3, no amendment shall be made to it except by agreement of the Parties in writing.  Any amendments to this Agreement agreed by Gemmo and Customer shall be deemed to automatically apply to and be incorporated in all existing and future Statements of Work unless agreed otherwise in writing by Gemmo and Customer. 

(2.5) In the event of any inconsistency between the provisions of this Agreement and any Statement of Work, the Statement of Work shall prevail to the extent of such inconsistency. For the avoidance of doubt, any terms and conditions attached to any Customer documentation shall not apply to the provision of these Services and the Agreement shall always take precedence over such terms and conditions. 

(3) Services

(3.1) Gemmo shall provide the Services to the Customer in accordance with the terms and conditions of this Agreement and with reasonable skill, care and diligence.

(3.2) Gemmo shall use all reasonable endeavours to ensure that the Services are provided in accordance with the timetable set out in an SOW. The Customer acknowledges that a delay in the Customer performing its obligations under this Agreement may result in a delay in the performance of the Services, and Gemmo shall not be liable to the Customer in respect of any failure to meet the Services timetable to the extent that that failure arises out of a delay in the Customer performing its obligations under this Agreement.

(3.3) Gemmo shall keep the Customer reasonably informed of the progress of the Services and of any substantial obstacles or likely delays in the performance of the Services. 

(4) Acceptance Procedure

(4.1) Each Sprint the Parties shall meet to discuss and agree tasks and Deliverables to be accomplished and agree Acceptance Tests and Acceptance Criteria in respect of same. Following completion of a Sprint, the Parties shall carry out Acceptance Tests. In the event of any discrepancies or failures in the Acceptance Tests, Customer shall notify Gemmo in writing advising of the discrepancies or failures in detail and Gemmo shall remedy the discrepancies by reperforming the Sprint. During any such reperformance invoicing under the relevant SOW shall be suspended. If following the reperformance of the Sprint Gemmo cannot resolve the discrepancies or failures, Customer may at its discretion: (i) accept the discrepancies as is and move forward with the Services to the next Sprint; or (ii) issue notice to terminate the SOW and/or the Agreement. Customer’s shall exercise this remedy within seven (7) days of notice from Gemmo of the failed reperformed Sprint. 

(5) Ownership and Licences

(5.1) Ownership of the Gemmo Background IP and Deliverables. The Intellectual Property Rights in the Deliverables, Gemmo Background IP and any documents or other materials related thereto are, and shall remain, the property of Gemmo. Gemmo reserves the right to grant a licence to use the Deliverables, Gemmo Background IP or the documents to any other party or parties, subject to clause .

(5.2) Licence to Gemmo Background IP. To the extent the Deliverables under this Agreement incorporates any Gemmo Background IP, Gemmo grants to Customer a worldwide, royalty-free, non-exclusive, non-transferable, irrevocable right and licence for the entire duration of intellectual property protection to use, modify, reproduce, distribute and display such Gemmo Background IP. Any such licence with respect to Gemmo Background IP shall be limited solely to the Deliverables and Customer may not exploit or use Gemmo Background IP separate from the Deliverables or attempt to derive source code or reverse engineer Gemmo Background IP.

(5.3) Customer Materials and Customer Content. The Customer shall own all Intellectual Property Rights in and to all of the Customer Materials and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Materials. The Customer hereby grants to Gemmo a non-exclusive, royalty free, worldwide, sublicensable licence to Use the Customer Materials including the Data and Labels collected during the project from third-party sources,to the extent reasonably required for the performance of this Agreement. Where Customers purchase Services under Service Tier 1, this licence shall be a perpetual licence and include Use of the Customer Materials to the extent required to for product enhancement purposes and to train future machine learning models.

(5.4) Deliverables Licence. In consideration of the Charges paid by the Customer to Gemmo and subject to Customer’s compliance with its obligations under this Agreement, Gemmo grants to the Customer a royalty free, worldwide, perpetual licence to the Deliverables set out under a SOW.  Depending on the Service Tier purchased under an SOW, Schedule 1 sets out the elements of the Deliverables that shall be licensed on an exclusive and non-exclusive basis. 

(5.5) Future Gemmo Work. Nothing in this Agreement shall restrict Gemmo from developing Intellectual Property or other work of authorship that is the same, similar, or otherwise functionally similar or identical to the Deliverables.

(5.6) Option to purchase Exclusive IP Licence. In consideration of the Charges and of its other undertakings in this agreement, Gemmo hereby grants to the Customer the exclusive option (Option) to acquire and obtain an assignment from Gemmo of all its right, title and interest throughout the world with full title guarantee and free from all third-party rights in (a) any and all Intellectual Property Rights and all other rights in the products of the Services (including the Deliverables), (b) any and all Intellectual Property Rights in the Software and Software Documentation, (c) all rights in and to the Confidential Information and the full unfettered and exclusive right throughout the world to use the Confidential Information for any purpose whatsoever, and (d) all related rights and powers arising or accrued, including the right to bring, make, oppose, defend, appeal proceedings, claims or actions and obtain relief (and to retain any damages recovered) in respect of any infringement, or any other cause of action arising from ownership, of any of the aforementioned rights , whether occurring before, on, or after the date of this Agreement.  

(5.7) Option validity period. The Option shall be exercisable during the period from the SOW Effective Date and ending three (3) months from delivery of the Deliverables under the SOW (“Option Period”). The Customer may exercise the Option at any time within the Option Period by (a) giving notice in writing to Gemmo, and (b) paying Gemmo the additional fees. On exercise of the Option, Gemmo and the Customer shall be deemed to have entered into an assignment agreement and the Customer shall automatically acquire the rights set out in Clause 5.2.

(6) Customer Obligations

(6.1) Customer shall:

(6.1.1) provide such support and co-operation that may reasonably be required by Gemmo to enable Gemmo to carry out its obligations to Customer under this Agreement;

(6.1.2) use best endeavours to provide to Gemmo in a timely manner all documents, data,  information, items and materials in any form necessary for Gemmo to provide the Services;

(6.1.3) undertake its responsibilities identified in a SOW and provide adequate and appropriately skilled and qualified resources to facilitate testing and acceptance; 

(6.1.4) obtain and maintain all necessary licences and consents and comply with all relevant legislation as required to enable Gemmo to provide the Services, including in relation to the use of all Customer Materials in all cases before the date on which the Services are to start; and

(6.1.5) be solely responsible for the verification and back up of any data prior to the use of such data by Gemmo and the continued verification and back up of such data.

(7) Charges

(7.1) The Customer shall pay the Charges to Gemmo in accordance with this Agreement and the Service Tier indicated in a SOW. 

(7.2) Gemmo shall issue invoices for the Charges to the Customer on or after the invoicing dates set out in a SOW, subject to any invoicing suspension as a result of acceptance test failures as per clause 4.1.

(7.3) The Customer shall reimburse Gemmo in respect of any expenses, providing that Gemmo shall obtain Customer’s prior written authorisation before incurring any expenses.

(7.4) All sums payable under this Agreement are exclusive of VAT or any relevant local sales taxes, for which the Customer shall be responsible. Customer shall pay all Charges in full without set off or counterclaim. All amounts stated or referred to in this Agreement are non-cancellable and non-refundable, unless stated elsewhere in the Agreement.

(7.5) If the Customer fails to make any payment due to Gemmo under this Agreement by the due date for payment, and without prejudice to any other rights and remedies of Gemmo,  Gemmo may subject to providing a further fifteen (15) days’ written notice, without liability to Customer, suspend provision of all or part of the Services and Gemmo 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 due amounts at an annual rate equal to 4 percentage points above the European Central Bank’s reference rate 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 judgement.

(8) Confidentiality 

(8.1) 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. 

(8.2) 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 8 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 licence rights are granted in any Confidential Information. 

(8.3) The obligations of confidentiality shall continue during the term of this Agreement and thereafter, unless and until such Confidential Information falls within one of the exceptions outlined in clause 8.4. 

(8.4) This clause 8 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; or (d) is required to be disclosed by operation of law or by order of a court or administrative body of competent jurisdiction (provided that, where permitted under law, prior to such disclosure, the Receiving Party shall first give notice to the Disclosing Party such that the Disclosing Party has the opportunity to contest such order or requirement of disclosure or seek appropriate protective order). 

(8.5) Any breach or threatened breach by the Receiving Party of an obligation under this Agreement 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.

(8.6) 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.

(8.7) In providing its Services under this Agreement, Gemmo 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 Gemmo shall be a processor and  the Parties shall enter into a data processing agreement.

(8.8) Customer acknowledges and agrees that Gemmo may collect and use anonymised data from the Services relating to outcomes, usage data and other information. This data shall be irreversibly anonymised and shall therefore no longer be considered personal data under Data Protection Laws. 

(9) Warranties 

(9.1) 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.  

(9.2) Customer warrants that Customer Data, material, content or links provided to Gemmo by or on behalf of Customer: (i) are owned by Customer or are 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 Laws 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.

(9.3) 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 Gemmo 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 including without limitation Data Protection Laws. 

(10) Gemmo 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. Gemmo is not responsible for any delays, delivery failures, or other damage resulting from the transfer of data over communications networks and facilities, including the internet.

(11) Limits of liability

(11.1) 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.    

(11.2) To the maximum extent permitted by applicable law, Gemmo 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 Gemmo has been advised of the possibility of such.

(11.3) Subject to clauses 11.1 and 11.2, to the maximum extent permitted by applicable law, Gemmo’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 paid by Customer in the three months preceding the claim under which the liability has arisen.

(11.4) All dates supplied by Gemmo for the delivery of the Deliverables shall be treated as approximate only. Gemmo shall not in any circumstances be liable for any loss or damage arising from any delay in delivery beyond such approximate dates.

(12) Indemnities

(12.1) Gemmo 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, Gemmo 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. 

(12.2) Notwithstanding the above, Gemmo 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 Gemmo or a party authorised by Gemmo; (ii) combination of the Services with software not provided by Gemmo or specified in any agreed documentation; (iii) Customer’s failure to use modifications to the Services provided by Gemmo to avoid infringement or misappropriation; or (iv) unauthorised use or misuse of the Services. 

(12.3) The rights granted to Customer under Clause 12.1 shall be Customer’s sole and exclusive remedy and Gemmo’s entire liability for any alleged or actual infringement of Intellectual Property Rights of any third party.  

(12.4) Customer shall defend indemnify and hold harmless Gemmo and 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 from or arise in connection with Customer’s: (i) unauthorised use of the Services; (ii) infringement or violation of Gemmo’s Intellectual Property Rights; (iii) breach of applicable law including violations of third party rights due to Customer’s use of the Services; or (iv) material breach of this Agreement including any warranties or representations.

(12.5) 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. 

(13) Term and Termination

(13.1) This Agreement shall come into force upon the Effective Date and run for the Term.

(13.2) 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:

(13.2.1) a material breach of this Agreement by the other party which, if capable of remedy, is not remedied by the defaulting party within fifteen days of its receipt of written notice of the breach from the non-defaulting party;

(13.2.2) fraud or wilful default of the other party; or

(13.2.3) the other party becoming insolvent or unable to pay its debts when due (as defined by applicable law) or has a liquidator, receiver or manager appointed to it, or a winding-up order instituted against it.

(13.3) Gemmo may terminate the Agreement on written notice in the event Customer fails to discharge any Charges due and owing despite written notice to discharge the same.

(13.4) Termination or expiry of this Agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination or expiry.

(13.5) On termination or expiration of the Agreement the Customer shall immediately pay to Gemmo any sums due to Gemmo under this Agreement.

(13.6) Any provision of this Agreement which expressly or by implication is intended to come into or continue in force on or after termination of this Agreement shall remain in full force and effect.

(14) Non-solicitation of personnel

The Customer must not, without the prior written consent of Gemmo, either during the Term or within the period of 12 months following the end of the Term, engage, employ or solicit for engagement or employment any employee or subcontractor of Gemmo who has been involved in any way in the negotiation or performance of this Agreement.     

(15) 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, 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 three (3) months, the party not affected may terminate this Agreement by giving one 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.

MISCELLANEOUS

(15.1) Waiver. 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.  

(15.2) Invalidity. 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.

(15.3) Entire Agreement. This Agreement (which includes all Order Forms and the DPA), 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 Forms may be agreed between the parties referencing this Agreement, each of which shall form part of the Agreement.

(15,4) Assignment. Either party may assign 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.  

(15.5) Publicity. Neither party may publicly announce this Agreement except with the other party’s prior consent or as required by applicable laws. However, Gemmo may include Customer and its trademarks in Gemmo’s customer lists and promotional materials but will cease this use at Customer’s written request. 

(15.6) 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.

(15.7) Notice. Any notice to be given by either party for the purposes of the Agreement shall be sent by mail/email to the contact party. A notice delivered (i) by hand shall be deemed to have been received when delivered or if delivery is not in Business Hours, at 9am on the first Business Day following delivery, (ii) by post if correctly addressed by prepaid registered delivery shall be deemed delivered two days from the date of posting and five days for pre-paid registered airmail, and (iii) by email shall be deemed to have been received at 9.00am on the next Business Day after transmission.

(15.8) Amendment. No variation of this Agreement shall be valid or effective unless it is in writing, refers to this Agreement and is duly signed or executed by, or on behalf of, each party. 

(15.9) Counterparts. 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.

(15.10) 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 of the Parties shall be the preferred dispute resolution methodology. If Senior Management cannot resolve the dispute within 30 days of first notification of the dispute the matter shall be referred to the courts of Ireland in accordance with clause 15.11. 

(15.11) Governing Law and Jurisdiction. This Agreement and any disputes or claims arising out of or in connection with it are governed by and construed in accordance with 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.