1. Definitions and Interpretation
1.1 In these Terms:
Affiliates means with respect to any party, any other entity controlling, controlled by or under common control with such party. The terms “control”, “controlling” and “controlled”, as used in this definition shall mean the legal, beneficial or equitable ownership, directly or indirectly, of more than 50% of the issued share capital or more than 50% of the voting rights, or the power, directly or indirectly, to appoint a member of the board of directors or similar governing body of such entity;
Commencement Date has the meaning given to it in clause 2.2;
Confidential Information means information of commercial, proprietary or other value disclosed by one Party to the other Party which is identified as confidential or might reasonably be considered to be confidential and that has not come into the public domain or been independently developed;
Contract means a contract for the sale, rent and licence (as applicable) of Products and/or the Services entered into between the Customer and Supplier in accordance with clause 2.2, and incorporating these Terms, the Order and any invoices;
Customer means the entity purchasing, renting or licensing the Products (as applicable) and/or the purchaser of Services;
Data Controller has the meaning set out in the Data Protection Acts 1988 and 2003;
Data Reports means visual and other representations of telematic data accessible through the Website;
Data Subject means an individual who is the subject of Personal Data;
Firmware means the Supplier’s proprietary tracking unit management and control software;
Fleet means the vehicles, assets or personas to be tracked or traced via the Services;
Force Majeure Event means an event, or a series of related events, that is outside the reasonable control of the Party affected (including power failures, industrial disputes, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);
Hardware means vehicle telematics units and associated peripherals supplied by the Supplier (which may or may not include Firmware, SIM card and network airtime and Onboard Unit);
Installation means fitting the Hardware into the Fleet;
Intellectual Property means any patent, registered or unregistered design right, trade mark or other proprietary rights inherent in the Products, any copyrights and database rights, all other similar or equivalent intellectual or commercial rights or property subsisting under the laws of each and every jurisdiction throughout the world whether registered or not, and whether vested, contingent or future and all reversions, renewals, revivals and extensions of any of the foregoing, and all rights under licences, consents, orders, statutes or otherwise in relation to any of the foregoing;
Kinesis and Kinesis Fleet are trading names of the Supplier and the Supplier’s parent company, Radius Payment Solutions Limited (a limited company incorporated in England and Wales with company number 08260702);
Location Data means data on the geographical position of the Fleet and other messages sent to or by the Fleet;
Mobile Communication Services means the mobile electronic communication services used for transmitting Location Data;
Onboard Unit means an electronic device that can be used for obtaining, capturing and transmitting Location Data and other driver behaviour events via satellite tracking and for sending and receiving such data;
Order has the meaning given to it in clause 2.1;
Party means a party to the Contract, and Parties shall be construed accordingly;
Personal Data has the meaning set out in the Data Protection Acts 1988 and 2003 and relates only to personal data, or any part of such personal data, in respect of which the Customer is the Data Controller and in relation to which the Supplier is providing Services under the Contract;
Prices means the prices set out in the Supplier’s quotation and incorporated into the Order, or if no price(s) is so set out, the Supplier’s standard list prices for the Products and/or the price of the Services as published on the Supplier’s website from time to time;
Processing has the meaning set out in the Data Protection Acts 1988 and 2003 and the term Process shall be construed accordingly;
Products means the Hardware which is purchased or rented (as set out in the Order) by the Customer and where applicable the Software and Firmware;
Services means the services relating to the Kinesis application, any utilities and reports to be provided by the Supplier as identified in the Order;
SIM means Subscriber Identity Module card providing network airtime;
Software means the Supplier’s proprietary application software and third party licensed software where applicable in existence at the commencement of the Contract or developed as a product of the Services;
Supplier means Diesel Card Ireland Limited, a limited company incorporated in Ireland with company number 233354 having its registered office at Unit 2, Ground Floor, Galway Technology Park, Parkmore, Galway;
Terms means these general terms and conditions;
Warranty Period has the meaning given to it in clause 7.1;
Website means the content (including all and any displayed materials and graphics such as databases, maps, photographs, and other images) of the Supplier websites at www.kinesisfleet.com and www.velocitycardmanagement.com which shall contain the Data Reports; and
Website Terms and Conditions means the terms and conditions for use of the Website as made available on the Website from time to time (and shall include the Website privacy statement and cookies policy).
1.2 The ejusdem generis rule is not intended to be used in the interpretation of these Terms; it follows that a general concept or category utilised in these Terms will not be limited by any specific examples or instances utilised in relation to such a concept or category.
1.3 The singular shall include the plural and vice versa and words denoting persons shall include bodies corporate and unincorporated associations of persons.
2. Basis of Contract
2.1 Where requested by the Customer, the Supplier will provide a quotation setting out the commercial terms upon which the Supplier will supply or rent the Products and/or provide the Services. Where the Customer notifies the Supplier in writing that it accepts the written quotation, such acceptance shall be an order by the Customer on the terms set out in the quotation and these Terms (“Order”). The Order constitutes an offer by the Customer to purchase (or rent) the Products and/or Services in accordance with these Terms and the terms of the quotation.
2.2 The Order shall only be deemed to be accepted when the Supplier issues written acceptance of the Order at which point and on which date the Contract shall come into existence (“Commencement Date”).
2.3 These Terms contain the only conditions upon which the Supplier will deal with the Customer, and they govern all Contracts and any supply, purchase or rental in relation to the Products and any Services between the Supplier and the Customer to the exclusion of all other terms and conditions that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing. Notwithstanding the foregoing, where the Supplier makes available use of the Website to the Customer in accordance with the Contract, such usage shall be governed by the Website Terms and Conditions.
2.4 By confirming acceptance of the Supplier’s written quotation and submitting an Order in accordance with clause 2.1, the Customer confirms, warrants and represents that it does so as a business, and not as a consumer.
2.5 The Customer acknowledges and agrees that the obligations of the Supplier under the Contract may be performed by the Supplier or any Affiliate of the Supplier (at the Supplier’s discretion), and that the Supplier may require that any payments due from the Customer to the Supplier are paid to any Affiliate of the Supplier.
3. Delivery & Installation
3.1 Unless otherwise agreed in writing:
3.1.1 all Hardware will be delivered by the Supplier to the Customer’s premises or to such other address as may be agreed by the Parties;
3.1.2 risk in the Products will pass from the Supplier to the Customer when the Products are delivered to or where applicable collected by the Customer;
3.1.3 subject to clause 9.1, where the Customer installs the Hardware or appoints another person to install the hardware, the Supplier shall not be liable for any loss or damage whatsoever, arising directly or indirectly, as a result of any negligence or failure to comply with the Supplier’s instructions in installing the Hardware;
3.1.4 where the Customer requests Installation of the Hardware by the Supplier an Installation date will be agreed with the Customer and the Installation may be performed by a third party engaged by the Supplier. Installation costs will be for the Customer. Without prejudice to the provisions of the European Union (Consumer Information, Cancellation and Other Rights Regulations 2013 (when applicable), where the Customer cancels an arranged Installation with less than 24 hours’ notice, or otherwise fails to present the vehicle at the agreed date, time or place of Installation the Supplier may charge the Customer a late cancellation charge of €45 per vehicle or such other late cancellation charge as the Supplier customarily applies as at the date of cancellation.
4.1 Where Products are supplied to the Customer, legal and equitable title to the Products (excluding where applicable, Firmware and SIM card) will pass from the Supplier to the Customer upon the later of:
4.1.1 delivery of the Hardware; and
4.1.2 receipt by the Supplier of all amounts due from the Customer to the Supplier under any Contract or other agreement.
4.2 Until title to the Hardware (excluding where applicable Firmware and SIM card) has passed to the Customer:
4.2.1 the Customer will hold the Hardware as fiduciary agent and bailee of the Supplier;
4.2.2 the Customer will as applicable: (i) store the Hardware in a secure, safe, dry and clean environment separately from other products and goods; (ii) ensure that the Hardware is easily identifiable as belonging to the Supplier; (iii) not deface, destroy, alter or obscure any identifying mark on the Hardware or their packaging; (iv) ensure that no charge, lien or other encumbrance is created over the Hardware; and (v) deliver up the Hardware to the Supplier upon demand.
4.3 Notwithstanding the provisions of clauses 4.1 and 4.2, where the Hardware is supplied to the Customer, the Customer may resell Hardware prior to taking ownership of title provided such a sale shall be effected in the ordinary course of the Customer’s business, at full market value and it shall be a sale of the Hardware on the Customer’s own behalf and the Customer shall deal as principal when making such a sale.
4.4 Where a Customer has not paid for the Hardware, the Customer’s right to possession of the Hardware shall terminate immediately in the event of:
4.4.1 the Customer being the subject of a bankruptcy order or it making an arrangement or composition with its creditors, or it entering into any form of liquidation, examinership or receivership within the meaning of the Companies Act 2014, or the Customer becoming unable to pay its debts as within the meaning of section 570 of the Companies Acts 2014 or otherwise becoming insolvent;
4.4.2 the Customer ceases to trade; or
4.4.3 the Customer seeks to or does encumber or in any way charge the Hardware.
4.5 The Supplier shall be entitled without further notice to inspect or recover possession of any Hardware to which it retains title; and the Customer grants to the Supplier and its employees and agents an irrevocable licence:
4.5.1 where the Hardware is not installed in a vehicle, to enter at any time any premises where the Hardware is or may be situated for the purpose of inspecting or removing any such Hardware;
4.5.2 where the Hardware is installed in a vehicle, to remove the Hardware from the vehicle and the Customer will cooperate without delay to make the vehicle available for such a process of de-installation.
4.6 The Supplier may bring an action for the Price of the Hardware, and any other amounts due under a Contract, notwithstanding that title to the Hardware has not passed to Customer.
5. Undertakings and obligations of the Customer
5.1 The Customer shall:
5.1.1 only use the Products for their purpose and in a careful and proper manner in compliance with the Supplier’s instructions and specifications;
5.1.2 ensure that the Products and Services are used strictly in accordance with all applicable laws and regulations at all times, and procure and maintain in place at all times all licences, consents, authorisations and approvals required to utilise and enjoy the Products and Services (including in respect of the Data Protection Acts 1988 and 2003);
5.1.3 procure that all restrictions and obligations imposed on it by this Contract apply equally to its employees, Affiliates and its customers;
5.1.4 ensure that all such employees, Affiliates and customers fully comply with all such restrictions and obligation;
5.1.5 cooperate in good faith with the Supplier and follow the Supplier’s reasonable instructions;
5.1.6 procure that the Supplier, its agents, employees, subcontractors and Affiliates are provided with access to the Fleet and any premises where the Fleet is located, and provide such reasonable information as is required from time to time in order to fulfil the Suppliers’ obligations under the Contract.
6. Prices and Payment
6.1 The Prices shall be payable as follows:
6.1.1 the Price of any Products purchased by the Customer will be payable [in advance] of delivery, by electronic transfer;
6.1.2 the Price of any Products rented by the Customer will be payable in monthly instalments, by direct debit;
6.1.3 the Price for any Services will be payable in monthly instalments, by direct debit.
6.2 All Prices payable under a Contract are exclusive of all value-added and other taxes and duties applicable to the sale, licencing and supply of the Products or provision of the Services which will be payable by the Customer.
6.3 If the Customer does not pay any amount properly due to the Supplier under or in connection with a Contract on or before the due date, the Supplier may: (a) charge the Customer interest on the overdue amount at the rate of 5% per year above the Irish Euro base rate of Barclays Bank Plc, from time to time (which interest will accrue daily until the date of actual payment and be payable on demand); or (b) claim interest and statutory compensation from the Customer pursuant to the European Communities (Late Payments in Commercial Transactions) Regulations 2012.
6.4 Unless agreed otherwise in writing, all Prices can be changed by the Supplier upon giving the Customer 30 days written notice.
6.5 The Customer shall make all payments properly due under a Contract without any deduction whether by way of set off, counterclaim, discount, abatement or otherwise.
6.6 All remaining payments due to the Supplier under a fixed term rental Contract (as identified in an Order) shall become due immediately on the early termination of the Contract, or upon any default by the Customer.
7.1 The Supplier warrants that on delivery, and for a period of 12 months from the date of delivery (“Warranty Period”), the Products shall:
7.1.1 conform in all material respects with their description;
7.1.2 be free from material defects in design, material and workmanship;
7.1.3 be of merchantable quality (within the meaning of the Sale of Goods Acts 1893 and 1980); and
7.1.4 be fit for any purpose held out by the Supplier.
7.2 Subject to clause 7.3, if:
7.2.1 the Customer gives notice in writing during the Warranty Period within a reasonable time of discovery that some or all of the Products do not comply with the warranty set out in clause 7.1;
7.2.2 the Supplier is given a reasonable opportunity of examining such Products; and
7.2.3 the Customer (if asked to do so by the Supplier) returns such Products to the Supplier’s place of business at the Customer’s cost, the Supplier shall, at its option, repair or replace the defective Products, or refund the price paid for the defective Products in full (where the Customer has purchased such Products).
7.3 The Supplier shall not be liable for the Products’ failure to comply with the warranty in clause 7.1 if:
7.3.1 the Customer makes any further use of such Products after giving a notice in accordance with clause 7.2;
7.3.2 the defect arises because the Customer failed to follow the Supplier’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Products or (if there are none) good trade practice;
7.3.3 the Customer alters or repairs such Products without the written consent of the Supplier;
7.3.4 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions;
7.3.5 the Products differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory standards.
7.4 Except as provided in this clause 7, the Supplier shall have no liability to the Customer in respect of the Products’ failure to comply with the warranty set out in clause 7.1.
7.5 These Terms shall apply to any repaired or replacement Products supplied by the Supplier under clause 7.2.
8.1 Subject to and in accordance with the provisions of this Contract, the Supplier grants to the Customer for the duration of the Initial Term (and any Renewal Period thereafter) a personal, non-exclusive right to: access and browse the contents of the Website; and download and print Data Reports or any part thereof from the Website in accordance with the Website Terms and Conditions.
8.2 As part of the provision of the Services, the Supplier shall:
8.2.1 supply the Customer with a unique, personalised user name and password to enable the Customer to access the Website and use the features made available thereon. The Customer agrees that responsibility for the security of any user name or password issued pursuant to this clause 8.2 rests with the Customer;
8.2.2 make the Kinesis Data Reports and the Location Data in respect of any data received from the Customer’s Onboard Unit available to the Customer on the Website.
8.3 The Customer acknowledges and agrees that the availability of the Website (or relevant parts thereof) is dependent upon systems, technologies and other factors which are beyond the Supplier’s control including but not limited to Mobile Communication Services operated by third party providers and the Internet and interconnected systems. Due to the nature of such technologies, systems and other factors, problems including but not limited to, outages, link failures, power difficulties, network overloads, signal degradation and topographic, electromagnetic and other interferences and government intervention may have an adverse effect on the availability of the Website. The Supplier does not warrant that the features made available on the Website will continue to be supported by Mobile Communication Services or that the Customer will be able to use the features made available on the Website as part of the Services for the intended use, due to the fact that such depends partly on circumstances beyond the Supplier’s reasonable control.
8.4 The Supplier will provide the Customer with SIM cards for each Onboard Unit that the Customer is entitled to use in accordance with the Contract, which the Customer shall use solely:
8.4.1 in combination with the Onboard Units; and
8.4.2 for transmitting Location Date between the Fleet and the Supplier’s platform as permitted as part of the Services.
8.5 The ownership of the SIM cards provided by the Supplier is retained by the Supplier and the Customer must return or destroy such SIM card upon expiry or termination of the Contract.
9. Intellectual property rights and data
9.1 All Intellectual Property Rights in or arising out of or in connection with the Services or the Products (including the Hardware, Firmware and Data Reports) shall be owned by the Supplier.
9.2 The Customer acknowledges that, in respect of any third party Intellectual Property Rights in the Services, or the Products, the Customer’s use of any such Intellectual Property Rights is conditional on the Supplier obtaining a written licence from the relevant licensor on such terms as will entitle the Supplier to license such rights to the Customer.
9.3 The Supplier owns all data generated by or related to the operation or performance of the Services (including the Data Reports and Location Data). This operational and performance data does not include any Personal Data (which, for the avoidance of doubt, shall be dealt with subject to the provisions of clause 12).
9.4 The Customer owns all data provided by or on behalf of the Customer to the Supplier in connection with the Services. The Supplier may use this data as required for the purpose of performing the Services. In addition, the Supplier shall be entitled to retain and use a copy of such data in aggregated form (such that the identity of the Customer and any Data Subject is not ascertainable) for the purpose of carrying out data analytics in relation to the services provided to its customers and otherwise developing new products and services.
10.1 Nothing in these Terms or the Contract shall deemed to exclude or limit the Supplier’s liability in respect of:
10.1.1 death or personal injury resulting from negligence;
10.1.2 fraud or fraudulent misrepresentation; or
10.1.3 breach of the terms implied by section 12 of the Sale of Goods Act 1893 (as amended by the Sale of Goods and Supply of Services Act 1980)(title and quiet possession); or
10.1.4 defective products under the Liability for Defective Products Act 1991.
10.2 Subject to clause 10.1, in no event, whether in contract, tort (including in either case negligence), misrepresentation (other than fraudulent misrepresentation), breach of statutory duty or otherwise pursuant to the Contract, shall the Supplier be liable for any loss of profits, income, revenue, use, production or anticipated savings, loss of business, contracts or commercial opportunities, loss of or damage to goodwill or reputation, any loss or corruption of any data, database or software or in respect of any special, indirect or consequential loss or damage whatsoever and the Supplier’s maximum aggregate liability under the Contract or otherwise shall in no circumstances exceed 110% of the net price paid or to be paid by the Customer in the 12 months preceding the time when the loss or damage occurred (or in the event that the loss or damage occurred less than 12 months after the Commencement Date, such shorter period as has elapsed since the Commencement Date).
10.3 If a Party is prevented or delayed in the performance of any of its obligations under the Contract by a Force Majeure Event, then that Party will be excused from the performance or punctual performance, as the case may be, of its obligation, to the extent that such Force Majeure Event continues and agrees to use all reasonable endeavours to overcome or work around the Force Majeure Event so as to be able to perform its obligations under the Contract.
11. Term and Termination
11.1 The Contract will come into force on the Commencement Date, and will continue in force until:
11.1.1 in the case of a Contract relating solely to the sale of Products, the later of completion of: (i) delivery of all Products; and (ii) the receipt by the Supplier of all amounts due to the Supplier under the Contract;
11.1.2 the case of a Contract including the supply of Services, the later of completion of: (i) performance of all Services; and (ii) the receipt by the Supplier of all amounts due to the Supplier under the Contract;
11.1.3 in the case of a Contract for rental of Products, the later of completion of: (i) the relevant rental period as set out in the Order; and (ii) the receipt by the Supplier of all amounts due to the Supplier under the Contract; or
in the case of any Contract, the termination of the Contract in accordance with the provisions of this clause 11, if earlier.
11.2 Each Party may, without prejudice to any of its other rights arising under this Contract, on giving written notice, terminate the Contract:
11.2.1 on not less than 28 calendar days’ notice, such notice to expire on the last day of any calendar month; or
11.2.2 with immediate effect, if:
22.214.171.124 the other Party fails to observe or perform any material term or condition hereof, including in any event non-payment, and such default or breach (if capable of remedy) shall not be remedied within 20 calendar days after notice in writing, specifying the breach and requiring the same to be remedied, has been given;
126.96.36.199 any of the following events occur: (i) the presentation of a petition for winding up of the other Party; (ii) the other Party is the subject of an order or an effective resolution is passed for winding up the other Party; (iii) the application for an order or application for the appointment of a receiver (including an administrative receiver), examiner, trustee or similar officer in respect of the other Party; (iv) if a receiver, administrative receiver, examiner or similar office is appointed over all or any part of the assets or undertaking of the other Party; (v) the other Party making a composition or arrangement with its creditors generally or an assignment for the benefit of its creditors or other similar arrangement; (vi) the other Party goes into liquidation; (vii) the other Party becoming unable to pay its debts as within the meaning of section 570 of the Companies Act 2014 or otherwise becoming insolvent, or (viii) the other Party ceasing, or threatening to cease, to carry on business;
188.8.131.52 there has been any delay or failure in performance under the Contract resulting from any event of Force Majeure, which delay or failure shall have continued for a period of three months.
12. Data Protection
12.1 The Parties will each observe all provisions of the relevant data protection laws and regulations, insofar as the violation of such provisions affects the interests of the other Party and/or the Data Subject involved. This includes the obligation of the Customer to duly inform involved Data Subjects about the Processing of their Personal Data by the Supplier under the instruction of the Customer.
12.2 The Customer and the Supplier acknowledge that for the purposes of the Data Protection Acts 1988 and 2003, the Customer is the Data Controller and the Supplier is the data processor in respect of any Personal Data collected by or provided to the Supplier as part of the Services.
12.3 The Supplier shall only collect, Process, store and use Personal Data in accordance with the Customer’s instructions from time to time and shall not process the Personal Data other than as permitted by this Contract, or as is necessary for the performance of this Contract and/or the improvement of the Services.
12.4 The Customer instructs the Supplier to collect, Process, store and use the Personal Data for the purpose as included under clause 12.3 above.
12.5 The Customer approves that the Supplier is allowed to outsource the hosting of its data centres to a third party within the European Economic Area. The Supplier will ensure that such third party is legally bound to provisions equivalent to those in clause 12 of this Contract regarding the Processing of Personal Data.
12.6 The Customer may revoke its consent for the Processing of Personal Data in relation to this Contract at any time. Such revocation must be presented to the Supplier in writing and shall not affect the Contract and will leave the Customer’s obligations (including payment obligations) under the Contract intact. The Customer acknowledges that as a result of such revocation the Supplier may not be able to provide the Services, and the Supplier will have no liability for any such resulting failure to provide the Services.
12.7 The Customer acknowledges that the Supplier is reliant on the Customer for direction as to the extent to which the Supplier is entitled to use and process the Personal Data. Consequently, the Supplier will not be liable for any claim brought by a Data Subject arising from any action or omission by the Supplier, to the extent that such action or omission resulted directly from the Customer’s instructions.
12.8 The Supplier shall implement appropriate technical and organizational measures to protect any Personal Data collected under the Contract against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access, in particular where the Processing involves the transmission of data over a network, and against all other unlawful forms of Processing. Having regard to the state of the art and the cost of their implementation, such measures shall ensure a level of security appropriate to the risks represented by the Processing and the nature of the data to be protected.
12.9 The Parties acknowledge that they have agreed that the Customer will respond to enquiries from Data Subjects, any governmental and/or judicial body concerning the Processing of Personal Data by the Supplier and the Customer should have sufficient processes in place to handle such enquiries.
13. Confidential Information
13.1 Each Party agrees that for the duration of this Contract and for a subsequent period of three years they will at all times keep any Confidential Information of the other Party as confidential and shall not permit the same to be copied, used, disclosed or disposed of except in accordance with this Contract. The provisions of this clause 13 shall not apply to Confidential Information which is already in the public domain or becomes so at a future date other than by breach of this Contract.
14.1 No breach of any provision of these Terms or the Contract will be waived except with the express written consent of the Party not in breach.
14.2 If any provision of these Terms or the Contract is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions of these Terms or the Contract will continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect (unless that would contradict the clear intention of the Parties, in which case the entirety of the relevant provision will be deemed to be deleted).
14.3 These Terms and the Contract may not be varied except by a written document signed by or on behalf of each of the Parties.
14.4 The Supplier shall be entitled to amend these Terms by publication on the Supplier’s website, which amendments shall enter into force on the date that the Customer is notified thereof and apply to all Contracts entered into after that date.
14.5 The Supplier may freely assign its rights and obligations under these Terms or the Contract without the Customer’s consent. Save as expressly provided in a Contract, the Customer may not without the prior written consent of the Supplier assign, transfer, charge, license or otherwise dispose of or deal in a Contract or any rights or obligations under these Terms or the Contract.
14.6 Each Contract is made for the benefit of the Parties, and is not intended to benefit any third party or be enforceable by any third party save for any third party software sub-licensing provisions. The right of the Parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to a Contract is not subject to the consent of any third party.
14.7 The Contract constitutes the entire agreement between the Parties in relation to its subject matter, and supersedes all previous agreements, arrangements and understandings between the Parties in respect of that subject matter, provided always that the usage of the Website by the Customer shall be governed by the Website Terms and Conditions.
14.8 Failure or delay by either Party in enforcing or partially enforcing any provision of this Contract will not be construed as a waiver of any of its rights under this Contract. Any waiver by one Party of any breach of, or any default under, any provision of the Contract by the other Party will not be deemed a waiver of any subsequent breach or default and will in no way affect the other terms of the Contract.
14.9 The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by Irish law and the Parties submit to the exclusive jurisdiction of the Irish courts.