Terms of Service and Professional Services Terms
Terms of Services (“TOS”)
The Services are provided by D-VUE Limited trading as Qual-E-Pass, an Irish-registered company with company registration number 560678 and registered office at Copperfield, Clonagh, Tullamore, County Offaly, R35 R8R6, Ireland (“Supplier”) to the company or entity listed in the Commercial Terms or that has completed the registration process (“Customer”).
BY SIGNING OUR COMMERCIAL TERMS, OR COMPLETING THE REGISTRATION PROCESS AND/OR USING THE SERVICES, THE CUSTOMER AGREES TO BE BOUND BY THESE TOS. If a person is signing up to use the Services on behalf of a company, that person must have the authority to bind that company to these TOS. If the Customer is not willing to be bound by these TOS, the Customer should not complete the registration process and should not use the Services.
These TOS may be updated and modified at any time in Supplier’s sole discretion. Acceptance of updates and modifications will be confirmed by (i) continued use of any part of the Services fourteen (14) days after the modified TOS have been posted to the Website or the app dashboard or (ii) Customer’s indication of agreement to the updated terms by email or otherwise. Where a person accepts this Agreement, they confirm that he or she has the authority to bind the Customer to these TOS.
4. The Services
4.1. The Supplier has developed the Qual-E-Pass Platform which it makes available to Authorised Users via the internet on a subscription basis for credential management and credential checking (the “Services”). The Services include but are not limited to the provision of Documentation, Software, upgrades, access to the Qual-E-Pass dashboard, messaging tools, administrative consoles, the Qual-E-Pass Platform and the Qual-E-Pass application (the “Qual-E-Pass App”).
5. Authorised Users
5.1. Subject to the Customer paying the Fees in accordance with clause 15.1, the restrictions set out in this clause 5 and the other terms and conditions of this Agreement, the Supplier hereby grants to the Customer a non-exclusive, non-transferable right to permit the Authorised Users to use the Services during the Term solely for the Customer’s internal business operations.5.1 Subject to the Customer paying the Fees in accordance with clause 15.1, the restrictions set out in this clause 5 and the other terms and conditions of this Agreement, the Supplier hereby grants to the Customer a non-exclusive, non-transferable right to permit the Authorised Users to use the Services during the Term solely for the Customer’s internal business operations.
5.2. In relation to the Authorised Users, the Customer undertakes that:
(a) it will not allow or suffer any log-in to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access or use the Services and/or Documentation;
(b) each Authorised User shall keep a secure password for his or her use of the Services and Documentation and that each Authorised User shall keep his or her password confidential;
(c) it shall permit the Supplier to monitor the Services to determine the number of Authorised Users and the number of End Users whose information is stored on the Qual-E-Pass Platform at any one time and identify unusual or unpermitted behaviour on the Qual-E-Pass Platform; and
(d) where any password has been provided to any individual who is not an Authorised User, then without prejudice to the Supplier’s other rights, the Customer shall promptly disable such passwords and the Supplier shall not issue any new passwords to any such individual.
5.3 The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:
(a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
(b) facilitates illegal activity;
(c) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
(d) in a manner that is otherwise illegal or causes damage or injury to any person or property;and the Supplier reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer’s access to any material that breaches the provisions of this clause.
5.4 The Customer shall not:
(a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties:
(i) and except to the extent expressly permitted under this Agreement, attempt to copy, modify, duplicate, frame, mirror, republish, download, display, transmit or distribute all or any portion of the Qual-E-Pass App, Platform and/or Software (as applicable) in any form or media or by any means; or
(ii) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software or the Services;
(b) access all or any part of the Qual-E-Pass App, Services or Platform to build a product or service which competes with the Services; or
(c) use the Services and/or Platform to provide services to third parties; or
(d) subject to clause 27.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, sub-license, loan, translate, merge, adapt, vary, modify or otherwise commercially exploit, or otherwise make the Services and/or Qual-E-Pass App or Platform available to any third party except the Authorised Users;
(e) attempt to obtain, or assist third parties in obtaining, access to the Qual-E-Pass App, Services and/or Platform, other than as provided under this clause 5;
(f) make, nor to permit any party to make, any use of the Software other than to avail of the Services;
(g) make alterations to, or permit the Software or any part of it to be combined with, or become incorporated in, any other programs;
(h) create Derivative Works based on the whole or any part of the Software;
(i) provide or otherwise make available the Software in whole or in part (including object and source code), in any form to any person without the Supplier’s prior written consent;
(j) use the Software in any unlawful manner, for any unlawful purpose; and
(k) infringe the Supplier or its licensor’s Intellectual Property Rights or those of any third party in relation to their use of the Software or Platform.
5.5 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services, the Qual-E-Pass App and/or the Platform and, in the event of any such unauthorised access or use, promptly notify the Supplier.
5.6 The rights provided under this clause 5 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer.
6. Availability and Support
6.1 The Supplier shall, during the Term, provide the Services to the Customer on and subject to the terms of this Agreement 6.1 The Supplier shall, during the Term, provide the Services to the Customer on and subject to the terms of this Agreement.
6.2 The Supplier shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for maintenance which will be notified to customers on the Website.
6.3 The Supplier will, as part of the Services and at no additional cost to the Customer, provide the Customer with the Supplier’s standard customer support services during Normal Business Hours in accordance with the Supplier’s Support Services Policy in effect at the time that the Services are provided. The Supplier may amend the Support Services Policy in its sole and absolute discretion from time to time. The Customer may purchase enhanced support services separately at the Supplier’s then current rates.
7. Service Updates
7.1 The Supplier will update the Services and add new or different features and functionality on a regular basis. Provided the Customer has complied with this Agreement, the Customer will be granted access to the updated versions of features to which it has subscribed. Optional or new features and functions may be subject to additional fees. The Supplier may also adjust or delete certain features from time to time.
7.2 The Customer acknowledges that compatibility of updates of the Qual-E-Pass Platform could be affected by the Supplier’s incorporation of new versions of operating systems or other third-party software or technology such as new versions of internet browsers and that the Customer is obligated to provide an adequate and compatible operating Environment.
8. Credential Management Customer Data
8.1 Where the Customer is a Credential Management Customer, the Customer shall own all right, title and interest in and to all the Credential Management Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Credential Management Customer Data. This includes the responsibility to comply with all GDPR regulations in relation to the information that the Credential Management Customer holds on others. This includes but is not limited to the safeguard of information, both printed and online, and the requirement to update, delete or modify information as requested by the person the information relates to, and in the gaining of user consent to share such information with third parties.
8.2 The Credential Management Customer must maintain hard copies of all Credential Management Customer Data inputted to, generated by or collected through the Service.
8.3 The Supplier shall follow its archiving procedures for Credential Management Customer Data as set out in its Back-Up Policy available at qual-e-pass.com/backup-policy or such other website address as may be notified to the Credential Management Customer from time to time, as such document may be amended by the Supplier in its sole discretion from time to time. In the event of any loss or damage to Credential Management Customer Data, the Credential Management Customer’s sole and exclusive remedy shall be for the Supplier to use reasonable commercial endeavours to restore the lost or damaged Credential Management Customer Data from the latest back-up of such Credential Management Customer Data maintained by the Supplier in accordance with the archiving procedure described in its Back-Up Policy.
8.4 The Supplier may use Credential Management Customer Data for internal business purposes such as testing, optimisation, support, trend analysis and diagnostics. The Supplier may also use aggregated statistics derived from Credential Management Customer Data for its external business purposes such as in the preparation of whitepapers for publication. The Supplier will never disclose or publish aggregated statistics derived from Credential Management Customer Data relating to an individual Credential Management Customer without the Customer’s prior consent. The Supplier will not publish Credential Management Customer Data relating to any individual.
8.5 The Credential Management Customer hereby grants to the Supplier a perpetual, irrevocable, royalty-free, fully paid, fully transferrable, worldwide license during the Term and after termination to;
(i) permit the Supplier to maintain, use, reproduce, modify, create derivative works of, distribute, display and publish anonymised Credential Management Customer Data for the Supplier’s business purposes, for trend identification, report generation, diagnostics and support and
(ii) permit the Supplier, and permit the Supplier to sub-licence to Credential Verification Customers, the right to maintain, use, reproduce, modify, create derivative works of, distribute, display and publish Credential Management Customer Data for the Term and thereafter for as long as required by law or for regulatory purposes.
8.6 The Supplier shall, in providing the Services, comply with its Privacy and Security Policy relating to the privacy and security of the Credential Management Customer Data available at qual-e-pass.com/privacy-policy or such other website address as may be notified to the Customer from time to time, as such document may be amended from time to time by the Supplier in its sole discretion.
8.7 The Credential Management Customer permits the Supplier to provide selected Credential Verification Customers with access to selected Credential Management Customer Data (e.g. End User profiles). Credential Verification Customer may need to share this data with third parties such as regulators, inspectors or lead contractors. The Credential Verification Customer is the data controller of Credential Management Customer Data once they have accessed that data.
8.8 For the Term, Credential Verification Customers will have access to the relevant Credential Management Customer Data for the relevant End Users for its own business or regulatory purposes. Credential Verification Customers must comply fully with the obligations of data protection laws that apply to any data that they access through our Services. Where a Credential Verification Customer shares Credential Management Customer Data with any third party, they must ensure that they have obtained all relevant permissions to share the data or have a lawful basis to share the data.
8.9 The Credential Management Customer acknowledges that the sharing of information with a Credential Verification Customer or regulatory authority or inspector may result in disclosing Credential Management Customer Data which shows that the Credential Management Customer or the relevant End User fails to meet the required regulatory or compliance standards. Qual-E-Pass has no liability to the Credential Management Customer or the relevant End User in respect of the consequences of such disclosure.
8.10 The Customer is entirely responsible for the consequences of errors in Credential Management Customer Data, whether input by the Customer or by Supplier on Customers’ behalf. Customer must always check the accuracy of Credential Management Customer Data before use. Supplier has no liability to Credential Management Customers or End Users for errors, inaccuracies or omissions in Credential Management Customer Data.
9. Credential Verification Customer Data
9.1 Where the Customer is a Credential Verification Customer, the Customer shall own all right, title and interest in and to all the Credential Verification Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Credential Verification Customer Data, including all related GDPR compliance.
9.2 The Supplier shall follow its archiving procedures for Credential Verification Customer Data as set out in its Back-Up Policy available at qual-e-pass.com/backup-policy or such other website address as may be notified to the Credential Verification Customer from time to time, as such document may be amended by the Supplier in its sole discretion from time to time. In the event of any loss or damage to Credential Verification Customer Data, the Credential Verification Customer’s sole and exclusive remedy shall be for the Supplier to use reasonable commercial endeavours to restore the lost or damaged Credential Verification Customer Data from the latest back-up of such Credential Verification Customer Data maintained by the Supplier in accordance with the archiving procedure described in its Back-Up Policy.
9.3 The Supplier may use Credential Verification Customer Data for internal business purposes such as testing, optimisation, support, trend analysis and diagnostics. The Supplier may also use aggregated statistics derived from Credential Verification Customer Data for its external business purposes such as in the preparation of whitepapers for publication. The Supplier will never disclose or publish aggregated statistics derived from Credential Verification Customer Data relating to an individual Credential Verification Customer without the Credential Verification Customer’s prior consent. The Supplier will not publish Credential Verification Customer Data relating to any individual.
9.4 The Credential Verification Customer hereby grants to the Supplier a perpetual, irrevocable, royalty-free, fully paid, fully transferrable, worldwide license during the Term and after termination to permit the Supplier to maintain, use, reproduce, modify, create derivative works of, distribute, display and publish anonymised Credential Verification Customer Data for the Supplier’s business purposes, for trend identification, report generation, diagnostics and support.
9.5 The Supplier hereby grants to the Credential Verification Customer a perpetual, irrevocable, royalty-free, fully paid, fully transferrable, worldwide sublicense during the Term and after termination to permit the Credential Verification Customer the right to maintain, use, reproduce, modify, create derivative works of, distribute, display and publish Credential Management Customer Data for the Term and thereafter for as long as required by law or for regulatory purposes.
9.6 The Supplier shall, in providing the Services, comply with its Privacy and Security Policy relating to the privacy and security of the Credential Verification Customer Data available at qual-e-pass.com/privacy-policy or such other website address as may be notified to the Customer from time to time, as such document may be amended from time to time by the Supplier in its sole discretion.
9.7 Customers at all times are responsible for verifying the data input to the Services. Supplier has no liability to Credential Verification Customers or End Users for errors, inaccuracies or omissions in Credential Management Customer Data or Credential Verification Customer Data.
10. Personal Data
10.2 Security of Processing:
Supplier agrees to take measures required pursuant to applicable data protection legislation, including the General Data Protection Regulation (GDPR), where applicable, relating to security of processing – taking into account the state of the art, costs of implementation, and the nature, scope, context and purposes of processing, as well as the risk of varying likelihood and severity for rights and freedoms of natural persons, appropriate technical and organisational measures to ensure a level of security appropriate to the risk (e.g. pseudonymisation, encryption, ongoing confidentiality, ability to restore availability and access to personal data and processes for regular testing of the security measures). In assessing the level of security, Supplier agrees to take account of the risks presented by the processing, from accidental or unlawful destruction, adherence to approved codes of conduct or certification mechanisms and steps taken to ensure that persons processing the personal data do not process except on the instructions of the controller (unless required to do so by law).
10.3 Security Incident Notification:
If the Supplier becomes aware of any unauthorized or unlawful access to, or acquisition, alteration, use, disclosure, or destruction of, Customer Data (“Security Incident”), the Supplier will notify the Customer without unreasonable delay, but in any event within 72 hours from becoming aware of the Security Incident. The Supplier will also reasonably cooperate with Customer with respect to any investigations and with preparing potentially required notices, and provide any information reasonably requested by Customer in relation to the Security Incident.
10.4 End User Personal Data:
(a) Through the Customer’s use of the Services the Customer will collect information from End Users. This may include personal data of End Users. With respect to the personal data of the End Users, the parties record their intention that the Credential Management Customer shall be the ‘data controller’ and the Supplier shall be a ‘data processor’ as such terms are defined under EU data protection legislation including the GDPR, where applicable. With respect to the personal data of the employees, agents or contractors of a Customer, the parties record their intention that the Customer shall be the ‘data controller’ and the Supplier shall be a ‘data processor’ as such terms are defined under EU data protection legislation including the GDPR, where applicable. In all instances, the Customer decides what data to collect and how to use the information processed via the Services.
(b) Where the Supplier processes any personal data of End Users or of the employees, agents or contractors of a Customer, on the Customer’s behalf when performing its obligations under this Agreement:
(i) The Supplier will not transfer the relevant personal data outside the European Economic Area (EEA) unless specifically requested to do so by the data controller under the terms detailed in clauses 10.4(c)-(e);
(ii) The data controller shall ensure that the data controller is entitled to transfer the relevant personal data to the Supplier and the Supplier is entitled to transfer relevant personal data to its subcontractors, third party providers and relevant Credential Verification Customers so that the Supplier may lawfully use, process and transfer the personal data in accordance with this Agreement on the data controller’s behalf
(iii) The data controller shall ensure that the relevant third parties and End Users have been informed of, and have given their consent to, such use, processing, and transfer contemplated under this Agreement and as required by all applicable data protection legislation, including the GDPR, where applicable and the data controller must provide appropriate and sufficiently prominent notice to, and obtain the appropriate consent from End Users regarding the collection, use and disclosure of such End Users’ personal data, including, at a minimum, through the data controller’s privacy policies.
(iv) In particular, the data controller shall ensure that it has permission by valid means to transfer the following End User personal data to the Supplier in order to set up the End User’s record on the Qual-E-Pass Platform:
- End User name
- End User job title
- End User photograph
- Scans of other End User certificates and credentials
- Number of credential record
- Client company or entity
- Dates of expiry of End User credentials
- Notes to End User file (e.g. End User scheduled to attend course on Saturday)
(v) Categories of data must not be uploaded to the Qual-E-Pass Platform unless required for the role of the particular End User. The data controller is entirely responsible for ensuring that the data uploaded to the Qual-E-Pass Platform is adequate, relevant and not excessive.
(vi) The Supplier shall process the End User personal data only in accordance with the terms of this Agreement and any lawful instructions reasonably given by the data controller from time to time; and
(vii) each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the End User personal data or its accidental loss, destruction or damage
(viii) The Supplier shall provide reasonable assistance and notify the Customer where a subject access request or other requests have been made by data subjects under EU data protection law.
(c) The Supplier will only transfer End User personal data processed through the Services outside the EEA on the Customer’s specific request. Customer Data processed outside the Services (e.g. where the Customer contacts the Supplier by phone or email) may be transferred outside the EEA. Where the Customer does not wish to transfer End User personal data outside the EEA, the Customer must not include End User personal data in communications to the Supplier made outside the Services.
(d) All requests to transfer End User personal data outside the EEA must be made to us in writing. In making the request the Customer confirms that an ‘adequate level of protection’ is in place for the transfer to be effected in compliance with European data protection laws.
(e) In making the request under clause 10.2(c) above, the Customer also confirms that the Customer will indemnify and hold harmless the Supplier (and its respective employees, directors, officers, shareholders, attorneys, agents and representatives) from and against any and all claims, costs, losses, damages, judgments, penalties, interest and expenses (including reasonable legal fees and costs) arising out of any claim, action, audit, investigation, regulatory action, inquiry or other proceeding that arises out of or relates to the Customer’s failure to comply with any applicable laws and regulations in connection with the transfer of the End User personal data outside the EEA, including any applicable data protection legislation. This indemnification obligation set forth herein shall survive the termination of this Agreement.
10.5 The Customer acknowledges and agrees that the Supplier will act on the “opt out” instructions provided by an End User directly to the Supplier, whereby, on receipt of such “opt out” instructions, the Supplier will no longer process that End User’s personal data or be able to provide the Customer with personal data related to that End User.
10.6 The Supplier reserves the right to transfer information (including Customer Data) to a third party in the event of a sale, merger, liquidation, receivership or transfer of all or substantially all of the assets of the Supplier’s business provided that the third party agrees to adhere to the Supplier’s terms relating to personal data and provided that the third party only uses End User personal data for the purposes that it has been provided it to the Supplier. The Customer will be notified in the event of any such transfer and will be afforded an opportunity to opt-out.
(a) The Services are provided on a software-as-a-service, hosted basis. The Supplier uses Supplier subcontractors (“Sub-processors) to provide services such as hosting. These Sub-processors will have access to the data processed via the Services, including relevant End User personal data. These Sub-processors are only permitted to process this data for the purposes of providing their specifically contracted services to the Supplier. The Supplier will use commercially reasonable efforts to ensure that such Sub-processors providers utilize reasonable industry recognized security measures to protect against loss, misuse and unauthorized viewing of the information the Customer provides to the Supplier, however, the Supplier does not guarantee and shall not be liable for the performance of any Sub-processor. Customers understand that supplier uses sub processors and as such will have gained blanket permissions under GDPR from the owners of the personal data that they hold, to allow that data to be processed by third parties.
(b) Supplier will:
(i) make available to Customer a list of all Sub-processors who are involved in processing or sub-processing personal data in connection with the provision of the Services, (“Sub-processor List”);
(ii) provide Customer with additional information about any Sub-processor on the Sub-processor List that Customer may reasonably request;
(a) Following any notice from the Customer to the Supplier of an actual or reasonably suspected Security Incident, Customer will have the right to conduct, at its own expense, an audit of Supplier’s systems, policies and procedures relevant to the security and integrity of Customer Data where possible with reasonable prior written notice, under reasonable time, place and manner conditions, pursuant to appropriate confidentiality restrictions.
(b) Unless otherwise required by law or by any governmental regulators with authority, any audit described in this clause will be conducted during reasonable times and will be of reasonable duration and will not unreasonably interfere with Supplier’s day-to-day operations. If the Customer conducts an audit through a third-party independent contractor, such independent contractor will be required to enter into a non-disclosure agreement containing confidentiality provisions substantially similar to those set forth in this Agreement to protect the Supplier’s proprietary information.
(c) Upon Customer’s written request at reasonable intervals, the Supplier will provide a copy of the Supplier’s then most recent third-party audits or certifications (if any), or any summaries thereof, that the Supplier generally makes available to its customers at the time of such request.
(d) The scope of an audit will be limited to Supplier systems, processes and documentation relevant to the processing and protection of personal data that is Customer Data.
11. Physical Qual-E-Pass
11.1 Physical Qual-E-Passes shall be printed at Supplier premises and sent by post to Customers. Physical Qual-E-Passes contain the following information: picture of passholder, name, job title, Qual-E-Pass number, employer. Physical Qual-E-Passes also contain an RFID chip that may be programmed by individual customers for their own purposes. Qual-E-Pass makes no representations about any potential uses of the RFID chip and Qual-E-Pass recommends that all customers carry out a data protection impact assessment on the customer’s intended use of the RFID chip.
11.2 Where there is an issue with a Qual-E-Pass, please contact us on firstname.lastname@example.org.
12. Third Parties
12.1 We do not audit the adequacy or otherwise of the security or organizational measures employed by Credential Verification Customers. We disclaim all responsibility for the actions of such third parties or for loss, damages or claims arising as a result of making a transfer of End User personal data to Credential Verification Customers on the Customer’s behalf. We make no representations or warranties as to the suitability of the Credential Verification Customer for receipt of End User personal data.
13. Supplier’s Obligations
13.1 The Supplier undertakes that the Services and any related professional services, if applicable, will be performed substantially in accordance with the Documentation, in full compliance with the GDPR, and with reasonable skill and care.
13.2 The undertaking at clause 13.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to the Supplier’s instructions, or modification or alteration of the Services by any party other than the Supplier or the Supplier’s duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, Supplier will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of the undertaking set out in clause 13.1. Notwithstanding the foregoing, the Supplier:
(a) does not warrant that the Customer’s use of the Services will be uninterrupted or error-free; or that the Services and/or the information obtained by the Customer through the Services will meet the Customer’s requirements; and
(b) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
13.3 Related professional services and Services or Software related thereto, if applicable, are not accompanied by any implied warranties of merchantability, fitness for a particular purpose, or any other warranties that the Qual-E-Pass Platform will meet any particular requirement or achieve any particular result or purpose. Any law or treaty which would require or imply such warranties in this transaction are knowingly and specifically waived and disclaimed by the parties (to the extent permitted by Applicable Law).
13.4 This Agreement shall not prevent the Supplier from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this Agreement.
13.5 The Supplier warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this Agreement.
14. Customer’s Obligations
The Customer shall:
(a) provide the Supplier with:
(i) all necessary co-operation in relation to this Agreement; and
(ii) all necessary access to such information as may be required by the Supplier;to provide the Services, including but not limited to Customer Data;
(b) comply with all applicable laws and regulations with respect to its activities under this Agreement;
(c) carry out all other Customer responsibilities set out in this Agreement in a timely and efficient manner;
(d) ensure that the Authorised Users use the Services in accordance with the terms and conditions of this Agreement and shall be responsible for any Authorised User’s breach of this Agreement;
(e) obtain and shall maintain all necessary licences, consents, and permissions necessary for the Supplier, its contractors and agents to perform their obligations under this Agreement, including without limitation the Services;
(f) ensure that its network and systems comply with the relevant specifications provided by the Supplier from time to time; and
(g) be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to the Supplier’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet.
15. Charges and Payment
15.1 The Customer shall pay the Fees to the Supplier for each End User in accordance with this clause 15 and the Commercial Terms.
15.2 Unless otherwise agreed in the Commercial Terms, the Customer shall pay yearly in advance commencing on the Effective Date for the Fees payable in respect of the first year of the Term. Payment shall be made by credit or debit card through the payment portal on the Website. The Supplier does not process the credit or debit card details of the Customer but use the services of Supplier’s third-party payment provider.
15.3 If the Supplier has not received payment within 15 days after the due date, and without prejudice to any other rights and remedies of the Supplier, the Supplier may, without liability to the Customer, disable the Customer’s password, account and access to all or part of the Services and the Supplier shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
15.4 Support fees and excess storage fees shall be invoiced and paid on the same terms as the Fees, where applicable.
15.5 All amounts and fees stated or referred to in this Agreement:
(a) shall be payable in EURO;
(b) are, subject to clause 19.4(b), non-cancellable and non-refundable;
(c) are exclusive of value added tax, which shall be added to the Supplier’s invoice(s) at the appropriate rate.
15.6 If, at any time whilst using the Services, the Customer exceeds the amount of disk storage space specified in the Documentation, the Supplier shall charge the Customer, and the Customer shall pay, the Supplier’s then current excess data storage fees. The Supplier’s excess data storage fees current as at the Effective Date are set out in the Commercial Terms.
15.7 The Supplier shall be entitled to increase the Fees, support fees and/or the excess storage fees payable pursuant to clause 15.6 on renewal of Customer’s subscription term and the Commercial Terms shall be deemed to have been amended accordingly.
16. Proprietary Rights
16.1 The Customer acknowledges and agrees that the Supplier and/or its licensors own all Intellectual Property Rights in the Services and Professional Services, if applicable. Except as expressly stated herein, this Agreement does not grant the Customer any rights to, or in, patents, copyright, database right, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of the Services.
16.2 The Customer acknowledges the Supplier’s licensor’s ownership of relevant trademarks or other rights and will take no action which would infringe such trademarks.
16.3 Unsolicited ideas or product feedback will automatically become the property of the Supplier, without any compensation to the Customer and the Supplier may use or distribute submissions and their contents for any purpose and in any way without any obligations of confidentiality or otherwise.
16.4 The Supplier confirms that it has all the rights in relation to the Services that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this Agreement.
17.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under this Agreement. A party’s Confidential Information shall not be deemed to include information that:
(b) was in the other party’s lawful possession before the disclosure;
(c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
(d) is independently developed by the receiving party, which independent development can be shown by written evidence; or
(e) is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
17.2 Each party shall hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of this Agreement.
17.3 Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement.
17.4 Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
17.5 The Customer acknowledges that details of the Services, the Tools and the results of any performance tests of the Services, constitute the Supplier’s Confidential Information.
17.6 The Supplier acknowledges that the Customer Data is the Confidential Information of the Customer.
17.7 This clause 17 shall survive termination of this Agreement, however arising.
17.8 Other than as stated in the Commercial Terms, no party shall make, or permit any person to make, any public announcement concerning this Agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
18.1 The Customer shall defend, indemnify and hold harmless the Supplier and its successors, parents, subsidiaries, affiliates, officers, directors, employees and legal representatives (collectively the “Indemnified Parties”) against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with (a) the Customer’s breach of this Agreement; (b) the unauthorized use of the Qual-E-Pass App, Platform or Software by the Customer or Clients; or (c) any claim that the Qual-E-Pass App, Platform or Software or the use thereof infringes upon, misappropriates or violates any IPR of any third party, provided that such claim results from or related to (i) an unauthorized modification of the Qual-E-Pass App, Platform or Software; (ii) the combination of the Qual-E-Pass App, Platform or Software with software, hardware or equipment not provided by the Supplier if Qual-E-Pass App, Platform or Software alone would not be subject of such claim; or (iii) the unauthorized use of the Qual-E-Pass App, Platform or Software by the Customer or Clients, provided that:
(a) the Customer is given prompt notice of any such claim;
(b) the Supplier provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer’s expense; and
(c) the Customer is given sole authority to defend or settle the claim.
18.2 The Supplier shall defend the Customer, its officers, directors and employees against any third-party claim that the Services infringes any Ireland patent effective as of the Effective Date, copyright, trade mark or database right and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:
(a) the Supplier is given prompt notice of any such claim;
(b) the Customer provides reasonable co-operation to the Supplier in the defence and settlement of such claim, at the Supplier’s expense; and
(c) the Supplier is given sole authority to defend or settle the claim.
18.3 In the defence or settlement of any claim, the Supplier may procure the right for the Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this Agreement on two Business Days’ notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.
18.4 In no event shall the Supplier, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:(a) a modification of the Services by anyone other than the Supplier; or(b) the Customer’s use of the Services in a manner contrary to the instructions given to the Customer by the Supplier; or(c) the Customer’s use of the Services after notice of the alleged or actual infringement from the Supplier or any appropriate authority.
18.5 The foregoing and clause 19.4(b) state the Customer’s sole and exclusive rights and remedies, and the Supplier’s (including the Supplier’s employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
19. Limitation of Liability
19.1 This clause 19 sets out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer:
(a) arising under or in connection with this Agreement including but not limited to clause 18.2;
(b) in respect of any use made by the Customer of the Services and Documentation or any part of them; and
(c) in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Agreement.
19.2 Except as expressly and specifically provided in this Agreement:
(b) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by Applicable Law, excluded from this Agreement; and
(c) the Services are provided to the Customer on an “as is” basis.
19.3 Nothing in this Agreement excludes the liability of the Supplier in any way which may not be excluded by law.
19.4 Subject to clause 19.2 and clause 19.3:
(a) the Supplier shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this Agreement; and
(b) the Supplier’s total aggregate liability in contract (including in respect of the indemnity at clause 18.2), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to the total Fees paid during the 12 months immediately preceding the date on which the claim arose.
20. Term and Termination
20.1 This Agreement shall commence on the Effective Date and shall continue for the period of one year unless otherwise terminated in accordance with the provisions of this Agreement and the period from the Effective Date until the date of termination as described above shall constitute the Initial Term. Thereafter, this agreement shall be automatically renewed for successive periods of 12 months (each a Renewal Period), and the Initial Term and any subsequent Renewal Periods shall constitute the Term.
20.2 Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other party if:
(a) the Customer fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment;
(b) the other party commits a material breach of any other term of this Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 15 days after being notified in writing to do so;
(c) the other party is unable to pay its debts as they fall due, an order is made for the winding up of the party, the party passes a resolution for winding up (other than for the purposes of a solvent reconstruction or amalgamation) or a liquidator of the party is appointed; or
(d) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 20.2(c); or
(e) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
20.3 On termination of this Agreement for any reason:
(a) all licences granted under this Agreement shall immediately terminate;
(b) each party shall return and make no further use of any equipment, property, Qual-E-Pass App, Platform, Software, Documentation, Services and other items (and all copies of them) belonging to the other party. Upon request by the Supplier, the Customer will certify in writing that it has complied with this clause 20.3(b);
(c) the Supplier will delete any of the Customer Data in its possession unless the Supplier receives, no later than ten days after the effective date of the termination of this Agreement, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data. The Supplier shall use reasonable commercial endeavours to deliver the back-up to the Customer within 30 days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer shall pay all reasonable expenses incurred by the Supplier in returning or disposing of Customer Data;
(d) each of the parties shall immediately return or destroy (at the other party’s option) all Confidential Information (excluding Customer Data) of the other party in its possession or control; and
(e) 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 this Agreement which existed at or before the date of termination shall not be affected or prejudiced.
21. Force Majeure
The Supplier shall have no liability to the Customer 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, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), 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 or default of suppliers or sub-contractors, provided that the Customer is notified of such an event and its expected duration.
If there is an inconsistency between any of the provisions in the TOS and the Commercial Terms, the provisions in the TOS shall prevail.
No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
24. Rights and Remedies
Except as expressly provided in this Agreement, the rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
25.1 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.
25.2 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.
26. Entire Agreement
26.1 This Agreement constitutes the whole agreement between the parties and supersedes any previous arrangement, understanding or agreement between them relating to the subject matter it covers.
26.2 Each of the parties acknowledges and agrees that in entering into this Agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this Agreement or not) relating to the subject matter of this Agreement, other than as expressly set out in this Agreement.
27.1 The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
27.2 The Supplier may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
28. No Partnership or Agency
Nothing in this Agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
29.1 Any notice required to be given under this Agreement shall be in writing and shall be delivered by hand or sent by pre-paid post or recorded delivery post to the other party at its address set out in this Agreement, or such other address as may have been notified by that party for such purposes, or sent by email to the other party’s email address as set out in this Agreement.
29.2 A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A correctly addressed notice sent by pre-paid post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by email shall be deemed to have been received at the time of transmission (as shown by the timed printout obtained by the sender).
30. Governing Law
This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of Ireland.
Each party irrevocably agrees that the courts of Ireland shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).
32.1 The definitions and rules of interpretation in this clause apply in this Agreement;
Applicable Law: any law, statute, by-law, regulation, order, regulatory policy, guidance or industry code of practice, rule of court or directives, delegated or subordinated legislation in force from time to time.
Authorised Users: those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Services.
Business Day: a day other than a Saturday, Sunday or public holiday in Ireland when banks in Dublin, Ireland are open for business.
Commercial Terms: the document that sets out the fees for the Services.
Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 17.5.
Credential Management Customer: a Customer such as a building contractor that creates End User profiles and uploads credential information to the Service in order to manage an End User’s credentials.
Credential Management Customer Data: the data input by a Credential Management Customer or the Supplier on the Credential Management Customer’s behalf to the Services.
Credential Verification Customer: a Customer such as a building control regulator that scans an End User’s Qual-E-Pass in order to confirm the End User’s credentials.
Credential Verification Customer Data: the data input by a Credential Verification Customer to the Services.
Credential Verification Request: each request for information sent by the Credential Verification Customer to the Services in accordance with this Agreement.
Customer Data: Credential Management Customer Data or Credential Verification Customer Data.
Derivative Works: any software programs, and copies thereof, which are based on or incorporate any part of the Software, including without limitation, any revision, modification, translation (including compilation or recapitulation by computer), abridgment, condensation, expansion, or any other form in which the Software may be recast, transformed or adapted.
Documentation: the documents made available to the Customer by the Supplier online via qual-e-pass.com or such other web address notified by the Supplier to the Customer from time to time which sets out a description of the Services and the user instructions for the Services.
Effective Date: the date of this Agreement.
End User: an employee or contractor of the Customer, that is registered on the Qual-E-Pass Platform by a Credential Management Customer.
Equipment Record: a piece of machinery or equipment that is registered on the Qual-E-Pass Platform by a Credential Management Customer.
Fees: the fees payable by the Customer to the Supplier for each End User, as set out in the Commercial Terms.
Intellectual Property Rights or “IPR”: means all rights in intellectual property including, but not limited to, all such rights now existing or hereafter arising, filed or acquired patents or patent rights, rights associated with works of authorship including copyrights, trademark rights (and goodwill associated therewith), rights relating to the protection of trade secrets, moral rights, rights of publicity, authors’ rights, contract and licensing rights and any other intellectual property rights or proprietary rights of any kind throughout the world resulting from activity in the industrial, scientific, technological, scientific, literary or artistic fields, including any and all extensions, renewals or reissuances of same and shall include such rights as now exist or are subsequently acquired.
Normal Business Hours: 9.30 a.m. to 5.30 p.m. local Irish time, each Business Day.
Professional Service Terms: Terms relating to the provision of professional services by the Supplier to the Customer.
Qual-E-Pass Platform: means the software as a service solution provided by the Supplier to the Customer under this Agreement via a website notified to the Customer by the Supplier from time to time and includes without limitation, access to the related Tools and Documentation, the dashboard and administrative console, Software and any fixes, updates and upgrades provided as more particularly described in the Documentation.
Software: the online software applications provided by the Supplier as part of the Services.
Support Services Policy: the Supplier’s policy for providing support in relation to the Services as made available at qual-e-pass.com or such other website address as may be notified to the Customer from time to time.
Term: has the meaning given in clause 20.1.
Tools: any tools and know-how developed and methods invented by the Supplier during, or as a result of, carrying out related professional services, whether or not developed or invented specifically or used exclusively to carry out the Services.
Virus: any thing or device (including any software, code, file or programme) 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 programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
Website: the Supplier website, at the date of signature available at www.qual-e-pass.com.
Professional Services Terms (“PTOS”)
1. Professional Services Terms of Service
1.1 These professional terms of service (“PTOS”) are in addition to the TOS. The TOS are incorporated in their entirety. Unless the context provides otherwise, each reference in the TOS to “Services” also refers to the Qual-E-Pass Professional Services.
1.2 Supplier reserves the right to change or modify the PTOS at any time, in its sole discretion, in the same manner as described in the TOS. BY SIGNING THE COMMERCIAL TERMS (as defined in the TOS), COMPLETING THE REGISTRATION PROCESS AND/OR USING QUAL-E-PASS PROFESSIONAL SERVICES, CUSTOMER AGREES TO BE BOUND BY THESE PTOS (AND BY REFERENCE, THE TOS).
1.3 Professional Services will be carried out in accordance with mutually agreed written statements of work (“SOWs”) attached to the Commercial Terms (as defined in the TOS). The Customer requirements may vary during the course of a SOW and, accordingly, review and revision of SOWs may be required. Any such revision and review may result in additional charges. All changes to existing SOWs will be in writing or agreed to expressly via email.
1.4 All work is performed on the basis of the fee structure set forth on a SOW. Any scheduled performance dates and times are estimates only. It is understood between the parties that delay in performance of an assigned task under a SOW by the assigned party shall give rise to the right in the other party to push back the directly-related and dependent events of that SOW to reasonably accommodate for the delay.
1.5 If Supplier is performing professional services at Customer’s site or a site nominated by Customer, Supplier’s consultants will abide by all Customers reasonable security, health and safety and other policies notified to us in writing.
1.6 Supplier will maintain adequate public liability, workers’ compensation and professional liability insurance in respect of the provision of the professional services and will furnish satisfactory evidence of such insurance(s) to Customer upon its written request.
2. Personal Data and Professional Services
By agreeing the SOW, Customer agrees that the procedure for processing of personal data as described in the SOW is utilising appropriate technical and organisational measures for the protection of personal data and Customer warrants that all required notifications have been given and all required permissions and consents have been obtained for the described processing.
3. Limited Warranty for Professional Services
Supplier warrants that the professional services will be provided in a professional and workmanlike manner. Other than the express warranty set forth herein, the provision of professional services by Supplier and the results of the professional services are provided AS IS, without warranty of any kind, including (without limitation) any warranty of title, merchantability, fitness for a particular purpose and non-infringement. Descriptions or specifications of deliverables shall constitute project objectives and not express warranties. Supplier expressly disclaims any additional warranties in relation to the Qual-E-Pass Services by virtue of rendering the professional services. In addition, the express warranty provided by Supplier in the TOS does not apply to professional services.
4. Limitation of Liability
In no event shall either party be liable for indirect, special, incidental or consequential damages, loss of profits, loss of use of data or interruption of business, whether such alleged damages are alleged in tort, contract or indemnity, even if such party has been advised of the possibility of such damages. In no event shall either party’s liability in relation to professional services exceed the amount of fees paid by Customer to Qual-E-Pass in the twelve (12) months prior to the date the claim is made.
For purposes hereof, the Term and Termination provisions applicable thereto in the TOS shall apply to professional services.
This notice was last updated on 21st February 2020.