Aterim Standards Conditions

These general terms and conditions of business (the “General Terms”) shall apply to all engagements for professional services (“the Services”) provided to you (the “Client” or “you”) by Aterim Resources Limited (“Aterim” or “our” or “us”). The scope of our work and our liability to you in respect of this engagement will be set out in our offer (the “Offer”) which incorporates these General Terms (the “Engagement”). Should any of the terms set out in our Offer conflict with these General Terms, the terms in our Offer shall prevail over the General Terms.

Any capitalised terms used in this clause 2 that are not defined in these general terms will have the meaning given to them in the data protection and information privacy laws of Ireland and the European Union and includes to the extent applicable to this Engagement, the data protection and information privacy laws of Ireland and the European Union and includes any legislation in force from time to time which implements Directive 95/46/EC or Directive 2002/58/EC of the European Community, the Data Protection Acts 1988 to 2018 (as amended from time to time), and any replacement regulation including Regulation (EU) 2016/679, known as the General Data Protection Regulation or GDPR (collectively referred to as “Data Protection Laws”).

The Client and Aterim acknowledge and agree that they shall comply with their obligations under Data Protection Laws.

Where Aterim acts as Data Controller in respect of any Personal Data provided by the Client and processed by Aterim as part of this Engagement, Aterim shall process such Personal Data in accordance with the terms of our Engagement and as described in our Privacy Statement available at https://www.aterim.com (Privacy Policy). We collect and process Personal Data in accordance with applicable Data Protection Laws.

Where Aterim acts as Data Processor in respect of any Personal Data provided by the Client and processed by Aterim as part of this Engagement, Aterim shall process such Personal Data in accordance with the terms set out below and the particulars of which are set out in the Engagement (i.e. the nature and purpose of the Processing, the type of Personal Data being Processed and the categories of Data Subjects).

With respect to any Personal Data processed on the Client’s behalf under or in connection with the performance of these General Terms and our Engagement, Aterim shall:

a) process the Personal Data only on documented instructions from the Client, unless required to do so by Union or Member State law to which Aterim is subject; in such a case, Aterim shall inform the Client of that legal requirement before Processing, unless that law prohibits such information on important grounds of public interest;

b) ensure that persons authorised to Process the Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality;

c) take all measures required pursuant to Article 32 of the General Data Protection Regulation “Security of Processing”;

d) respect the conditions referred to in paragraphs 2 and 4 of Article 28 of General Data Protection Regulation for engaging another Data Processor (referred to as a “Sub-Processor”);

e) taking into account the nature of the Processing, assist the Client by implementing appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the Client's obligation to respond to requests for exercising the Data Subject's rights laid down in Chapter III of the General Data Protection Regulation;

f) assist the Client in ensuring compliance with the obligations pursuant to Articles 32 to 36 of the General Data Protection Regulation taking into account the nature of processing and the information available to Aterim;

g) at the choice of the Client, delete or return all the Personal Data to the Client after the end of the provision of the Services relating to Processing, and delete existing copies unless Union or Member State law requires storage of the Personal Data;

h) make available to the Client all information necessary to demonstrate compliance with the obligations laid down in this clause and allow for and contribute to audits, including inspections, conducted by the Client or another auditor mandated by the Client and in accordance with the provisions mentioned in this clause 2(h) of the General Terms in relation to audits; and

i) immediately inform the Client if, in Aterim opinion, an instruction of the Client as mentioned in clause 2(h) above, infringes the General Data Protection Regulation or other Union or Member State data protection provisions. This opinion shall not be construed as a legal advice by Aterim.

The Client warrants to Aterim that it is entitled to transfer the Personal Data to Aterim in full compliance with applicable Data Protection Laws, including as needed, compliance to any prior required formalities and Data Subject rights, such as information and/or consent when such is required under Data Protection Laws.

The Client acknowledges and agrees that Aterim may sub-process the Personal Data to other Aterim group companies (the “Internal Sub-Processors”) and to third party Sub-Processors (the “External Sub-Processors”) located inside or outside of the European Economic Area (the “EEA”) as necessary for all sub-processing activities (“General Consent”).

The Client acknowledges that it is and will remain solely responsible for determining the purposes and the means of the Processing of the Personal Data by Aterim in the course of performing its obligations and for approving the security measures applicable to the protection of Personal Data. The Client remains solely responsible for the accuracy and adequacy of the aforementioned purposes and means.

The Client acknowledges that any changes to the security measures that are required by the Client, including in order to comply with Data Protection Laws, shall be agreed by the Client and Aterim. Any costs incurred by Aterim in complying with such changes shall be borne by the Client.

The Client and Aterim agree that on the termination of the Services, Aterim and any Sub-Processors shall return all the Personal Data transferred including any data storage media supplied to Aterim, and the copies thereof to the Client or shall delete all the Personal Data and certify to the Client that it has done so, unless legislation imposed upon Aterim prevents it from returning or deleting all or part of the Personal Data transferred.

The Client shall keep and retain ownership of its Intellectual Property ("IP") Rights and a license relating to these IP Rights is granted, when necessary, to Aterim solely for the strict performance of the Services; and any other use requires the prior written authorisation of the Client. 

All working documents, tools, data bases developed by Aterim (both physically or digitally) for the ongoing course of its business or to perform the Services for the Client remains the sole Intellectual Property of Aterim.

Deliverables developed by Aterim at the Client’s request will become the Clients property once the deliverables are accepted and payment of all invoices settled.

Aterim alone will be responsible for the performance of the Service. You therefore agree that you will not bring any claim in respect of or in connection with this Engagement whether in contract, tort (including negligence), breach of statutory duty or otherwise against any officer or employee of Aterim unless the claim arises from the fraud, dishonesty or illegal act of that officer or employee. The foregoing exclusion does not apply to any liability that cannot be excluded under Irish law. The parties to the Engagement Letter do not require the consent of any other party to rescind or vary any term or terms of the Engagement Letter at any time.

Aterim is liable in term of professional civil responsibility for all material or immaterial damage, which may occur to Aterim personnel, Aterim' properties as well as Aterim collaborators in the course of the works produced in accordance with this proposal.

Aterim resources might be placed under the guidance and responsibility of the Customer and its quality management system. Therefore, Aterim cannot be liaise responsible for any wrongdoing which could occur following work performed by Aterim resources when under the supervision of the Client in his premises or any location is required to be on his behalf.

Should the Client have a complaint about any aspect of our service which cannot be resolved to its satisfaction through the Professional in charge, the circumstances of your complaint may be brought to the attention of Guillaume Riggi or Alan Gazielly, Directors at Aterim. Prior to any formal complaints or legal action being taken both parties agree to avail of this alternative dispute resolution. If Aterim has given the Client a less than satisfactory service, Aterim undertakes to do everything reasonable to remedy the failure and if however the Client is still not satisfied the Client may, of course, take matters up to the Irish arbitral system.

It is our usual practice to provide estimates of our fees in advance of the work commencing as part of the Offer. Our fees are computed on the basis of the resource qualification, the complexity of the assignment and the responsibility involved. Unless otherwise agreed, fees will be charged separately for each main class of work. 

In the event that additional services not included in the Offer are requested by the Client, they will be quoted separately, or the Offer will be updated accordingly.

Invoices will be issued at the beginning of the Service or at the beginning of the month for Service across several months or at appropriate intervals during the course of the Service for other type of Services. Our invoices are due 10 days after presentation unless otherwise agreed in the Offer. Any queries concerning an invoice must be raised within 30 days of the invoice date. In case a regularisation is required at the end of a period or the Service, a credit note will be issued to the Client.  

Aterim has a contract for invoice financing with a Third-Party provider in the name of Bibby Financial Services (Ireland) Ltd. The debt arising from our invoices might be assigned to Bibby Financial Services (Ireland) Ltd, Second Floor, Heather House, Heather Road, Sandyford, Dublin 18.  Tel 01 297 4000. In this case, the notice of assignment will be mentioned on the invoice and invoices will have to be paid on their designated bank account accordingly.

We might require a deposit prior to the commencement of the Service. The amount of the deposit will be mentioned in the specific Offer and is payable prior to the commencement of the Service. We might at our own discretion delayed the commencement of the Service in the event of the deposit would not be paid prior to the commencement of the Service.

Late payments are subject to an overdue fee of 2% per month from the invoice due date.

Either party may terminate this Engagement upon 3 months’ written notice to the other party of its intention to do so prior to the renewal period if any.

The Client shall be liable to pay the Provider a Cancellation Fee calculated in accordance with the Cancellation Fee Schedule below if, after an Offer has been accepted by the Client, the Client decides for any reason to withdraw it.

Scenario 1: Between 1 Month and 2 weeks prior to the start of the Service; Applicable Cancellation Fee: 50% of the first month of Fee according to the agreed Offer.

Scenario 2: Less than 2 weeks prior to the start of the Service; Applicable Cancellation Fee: 1 month of Fee according to the agreed Offer if the Service’s duration is less than 6 months; or 3 months of fees according to the agreed Offer if the Service’s duration is more than 6 months.

The Client shall be liable to pay the Provider Early Termination Fee in accordance with the Early Termination Fee Schedule below if, after the Service has started, the Client decides for any reason to withdraw it unless material breach to the Offer or misconduct of the Resource is notified by the Client to the Provider with substantial evidence.

Scenario 1: If the Service’s duration is less than 6 months; Applicable Early Termination Fee: 1 month of Fee according to the agreed Offer

Scenario 2: If the Service’s duration is above 6 months; Applicable Early Termination Fee: 50% of the remaining monthly Fees agreed in the Offer if the remaining duration is above 3 months; or 100% of the remaining monthly Fees agreed in the Offer if the remaining duration is less than 3 months

Without affecting any other right or remedy available to it, either party may terminate the Engagement with immediate effect by giving written notice to the other party if:

(a) the other party commits a material breach of any term of this Engagement; or

(b) steps have been taken or legal proceedings have been instituted or threatened against the other party for its winding up or reorganisation or to appoint an examiner or receiver or any such analogous steps in relation to it or any of its assets.

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

In the course of the engagement, we may communicate with you electronically.

However, as you are aware, the electronic transmission of information cannot be guaranteed to be secure or error free and such information could be intercepted, corrupted or lost, destroyed, arrive late or incomplete or otherwise be adversely affected or unsafe to use. Accordingly whilst we will use commercially reasonable procedures to check for the then most commonly known viruses before sending information electronically, and notwithstanding any collateral contract, warranty or representation, neither Aterim nor its partners, employees, agents or servants shall have any liability to you on any basis, whether in contract, tort (including negligence) or otherwise, in respect of any error or omission arising from or in connection with the electronic communication of information to you and your reliance on such information and including (but not limited to) the acts or omissions of our service providers. Such exclusion of liability shall not apply to Aterim in the event of such acts, omissions or misrepresentations which are in any case criminal, dishonest or fraudulent on the part of Aterim’s directors, employees, agents or servants.

If the communication relates to a matter of significance on which you wish to rely and you are concerned about the possible effects of electronic transmission you should request a hard copy of such transmission from us. If you wish us to password protect all or certain documents transmitted, you should discuss this with us and we will make appropriate arrangements.

All personnel working on this assignment will conform to best practice data handling protocols as represented as a minimum by the following:

• Protection of all data provided to Aterim where it is stored on a network managed by Aterim, including limitation of access to team members only

• Ensuring all documentation and reports are transmitted in secure FTP format only

• Secure physical storage (in locked cabinets) of any information provided in hard copy format to Aterim for the purpose of this Engagement.

Aterim uses a trusted third party-provider to perform electronic signatures. This provider complies with EU eIDAS regulation and local regulation. Electronic signature is therefore considered to have the same value as a written one.

We will inform you if we become aware of any conflict of interest in our relationship with you or in our relationship with you and another client. We have safeguards that can be implemented to protect the interests of different clients if a conflict arises. Where conflicts are identified which cannot be managed in a way that protects your interests, we will inform you promptly.

If there is a conflict of interest that is capable of being addressed successfully by the adoption of suitable safeguards to protect your interests, then we will adopt those safeguards. This will be done on the basis of your informed consent. We reserve the right to act for other Clients whose interests are not the same as or are adverse to yours subject of course to the obligations of confidentiality referred to above.

We have, and will have in place for the duration of this Engagement, a plan (to include but not limited to regular testing of planned workarounds) to ensure our business processes can continue during a time of emergency or disaster to minimise operational disruption to the provision of the service described in this Engagement (the “Business Continuity Plan”). We have, and will have, the ability to implement the Business Continuity Plan without delay at any time. The implementation of any Business Continuity Plan workarounds will be at no additional cost to the Client. We shall review and update the Business Continuity Plan on a regular basis and in any event not less than once every 12 months.

We will not be prevented or restricted by virtue of our relationship with you, including anything in the Engagement, from providing services to other Clients.

The Engagement and these General Terms shall be governed by, and construed in accordance with, Irish law. The courts of the Republic of Ireland shall have exclusive jurisdiction in relation to any claim, dispute or difference concerning the Engagement and these terms and conditions and any matter arising from it. Each party irrevocably waives any right it may have to object to an action being brought in those courts, to claim that the action has been brought in an inconvenient forum, or to claim that those courts do not have jurisdiction.

Aterim may use multiple technology solutions provided by third parties (the “Applications”) which will allow us to efficiently deliver the Services to you. We are responsible to you for our use of the Applications, however, should you have a direct business relationship with any of these third parties, they will be liable to you directly. Where you use the Applications through us giving you access thereto as part of our business relationship with the third party, then you will need to confirm that you accept their terms of business or will be deemed to have accepted same (as applicable). When requested by you we can provide you with the terms of business of any relevant third party to consider. When requested by you we can also provide you with a list of all the third parties that we will be using in the delivery of the Services to you.

Aterim may, at its sole discretion but acting reasonably and having given appropriate written notice, suspend or terminate the use of any Application by the Client.

The Client acknowledges that Aterim may allow the providers of the Application to access Client’s information (including Personal Data if applicable) as required for the inter-operation of such Applications with the Services. Aterim shall not be responsible for any disclosure, modification or deletion of Client’s information (including Personal Data if applicable) resulting from any such access by third-party Application providers.

Aterim makes every effort to use only Applications which are trusted, secure and comply with best industry standards, however total security of the Applications cannot be guaranteed. Aterim offer no guarantee that any Application will be fault or error free or available for use or that access will be uninterrupted.

Aterim does not accept any liability or responsibility for the Client’s use of the Applications. The Client confirms and agrees to indemnify Aterim against any demands, costs, claims, damages, losses and expenses arising out of the Client’s (or its officers, agents, employees or subcontractors) misuse and/or any breach by you or any non-compliance of the Client with the Data Protection Laws.

“Application” shall mean any website or online location, such as a project room, data room or portal, which we establish, procure from a third party and/or maintain on your behalf, and to which information (including Personal Data) is transferred in connection with the Services, with the intention of sharing such information with you and/or third parties.

For the duration of the Engagement and for 12 months after its termination, the Client will not make offers of employment to or engage any members of Aterim’s staff involved in the work covered by this engagement unless they have first obtained Aterim’s written consent. Aterim undertakes within the same period, not to employ or engage any members of the Client’s staff connected with work undertaken by Aterim without similar consent from the Client.

Introductions of Resources are confidential. If a Client discloses a Resource’s details to a third party, that will be deemed to be a “Third Party Introduction”. If that Third Party Introduction results in an engagement for the Resource with the third party and the Client within 12 months of the Provider’s Introduction of the Resource to the Client, then the Client will be liable to the Provider for payment of a Fee calculated in accordance with Third Party Introduction Fee below.

Scenario: Resource hired by the Client or a Third Party to perform a Service on behalf of the Client or any related company’s, Client or Provider of the Client.

Applicable Third Party Introduction Fee: 3 months of monthly Fees if an Offer was made by the Provider or 3 months of the Resource’s known salary if no Offer was made but only Introduction of the Resource was made to the Client.

During the term of the Engagement and thereafter, each party agrees to keep all Confidential Information strictly confidential and to use it only for the purposes of the Engagement. Confidential Information shall mean all information about the business, finances, technology and affairs of the other party, regardless of its nature, and the contents of the Engagement.

The provisions of this Clause 15 shall not apply to: (i) information that has come into the public domain other than by breach of this Clause 15 or any other duty of confidence; (ii) information already in the possession of the receiving party before it was made known by the other party; (iii) information the receiving party obtained from a third party without breach of this Clause 15 or any other duty of confidence; (iv) information required to be disclosed by law or by any governmental or other regulatory authority; or (v) information that is trivial or obvious.

You grant us the right to add your name and company logo to our customer list and website. 

In accordance with the provisions mentioned in this clause 2, clause 3 and clause 16, you grant us the right to publicly advertise about the Engagement and our Services.

Neither party shall assign or otherwise transfer (including, without limitation, a transfer due to a change in control) any of its rights or obligations under the Engagement without the prior written consent of the other party, which consent shall not be unreasonably withheld, conditioned or delayed. No permitted assignment or transfer shall relieve the Client of its obligations under the Engagement incurred prior to such assignments.

The Engagement contains the entire agreement between the parties relating to the subject matter covered and supersedes any previous agreements, arrangements, undertakings or proposals, written or oral, between the parties in relation to such matters.

In performing this Engagement we will not be deemed to have information from other services.

The parties confirm that, in agreeing to enter into the Engagement, they have not relied on any representation other than those which are set out in the Engagement, and the parties agree that they shall not have a remedy in respect of any misrepresentation which has not become a term of the Engagement. Nothing in this clause shall operate to exclude any liability for fraud.

If at any time any provision of the Engagement is held to be invalid or unenforceable then such provision shall be deemed not to be part of the Engagement but the validity and enforceability of the remainder of the Engagement shall not be affected.

Except as expressly provided in the Engagement, a person who is not a party to the Engagement has no right to rely upon or enforce any term thereof, but this shall not affect any right or remedy of a third party which exists or is available otherwise.

The failure to exercise or delay in exercising a right or remedy under this Engagement shall not constitute a waiver of any such right or remedy or a waiver of any other rights or remedies and no single or partial exercise of any right or remedy under this Engagement shall prevent any further exercise of the right or remedy or the exercise of any other right or remedy. The rights and remedies contained in this Engagement are cumulative and not exclusive of any rights or remedies provided by law.

These General Terms are also accessible in pdf. In case of discrepancies between the two version, the most updated version prevails.