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Ocean Dynamics GRP Ltd - Terms and Conditions of Supply (v1.1 - September 2020) (F-44121943)
These terms and conditions (as amended under clause 28.2) (“Conditions”) govern the supply of services and licensing of software by Ocean Dynamics GRP Limited, registered in England and Wales with no. 9559754, with registered address at 28-31 The Stables Wrest Park, Silsoe, United Kingdom, MK45 4HR (“OD”) to the person/firm to who buys such services/licences software (“Customer”). These Conditions apply to the exclusion of any other terms that Customer seeks to impose, or which are implied by trade, custom, practice or course of dealing.
***Note particularly clause 21 (Limitation of Liability)***
In these Conditions: (i) person includes a natural person, corporate or unincorporated body; (ii) a reference to OD or Customer includes its personal representatives, successors and permitted assigns; (iii) a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted and includes any subordinate legislation; (iv) any phrase introduced by the terms including or include shall be illustrative and shall not limit the sense of the preceding words; (v) a reference to writing or written includes emails but excludes faxes; (vi) the terms ‘personal data’, ‘data subject’, ‘processor’, ‘controller’, ‘processing’, ‘personal data breach’, ‘pseudonymisation’, ‘special categories of data’ and ‘supervisory authority’ have the meanings set out in Data Protection Law; and (vii) the following definitions apply:
“Acceptable Use Policy”: the acceptable use policy (if any) applicable to the relevant Services/OD Software, made available to Customer by OD, as may be amended or updated by OD from time to time on written notice to the Customer.
“Additional Maintenance Services”: any Out of Hours Maintenance and/or any Excluded Maintenance performed by OD in accordance with these Conditions.
“Additional Subcontractor Conditions”: any additional conditions relating to Subcontracted Services, as set out in the Quote.
“Affiliates”: each agent, employee, contractor or sub-contractor of a party or the party's Group.
“Applicable Law”: the laws of England and Wales, together with any other mandatory laws, regulations, regulatory policies, guidelines or industry codes which apply to the performance of each party’s obligations under the Contract.
“Authorised Users”: those employees and independent contractors of the Customer who are entitled to use the OD Subscription Services under the Contract.
“Business Day”: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
“Charges”: the charges payable by the Customer to OD, as set out in the Quote.
“Confidential Information”: information of commercial value, in whatever form or medium, disclosed by a party to the other party, including commercial or technical know-how, technology, information pertaining to business operations and strategies, information pertaining to clients, pricing and marketing information relating to the business of either party, information which is marked as confidential, or information which ought reasonably to be considered confidential in light of the nature of the information and/or circumstances of its disclosure.
“Configuration Services”: those configuration Services detailed in the Quote, if any.
“Consultancy Services”: those consultancy Services detailed in the Quote, if any.
“Contract”: each contract (as defined in clause 2.1) between the Customer and OD relating to one or more of the following: (i) the licensing of OD Software; (ii) the supply of OD Services; (iii) the provision of Third-Party Services; and/or (iv) the provision of Third-Party Software.
“Customer Content”: any data, documents, text, drawings, diagrams, images or sounds (together with any database made up of any of these), embodied in any medium, that are provided to MD by or on behalf of the Customer, in order to perform its obligations pursuant to a Contract.
“Customer Materials”: any and all materials, other equipment (including cabling, network interfaces, power and power adapters) and software necessary for OD to perform its obligations pursuant to a Contract, save to the extent the same is expressed to be supplied by MD pursuant to the applicable Contract.
“Customer Obligations”: the obligations described in clause 3.
“Customer Personnel”: employees, directors and agents of the Customer, together with employees, directors and agents of any contractor undertaking activities on behalf of the Customer who are not OD Personnel.
“Data Processing Particulars”: the data processing particulars set out at the end of these Conditions.
“Data Protection Legislation”: any law, statute, regulation, rule or other binding restriction regarding the protection of individuals with regards to the Processing of their Personal Data to which a party is subject, including the DPA and the GDPR (to the extent it remains applicable) and any code of practice or guidance published by the Information Commissioner’s Office from time to time.
“Data Subject”: has the meaning set out in the Data Protection Legislation.
“Default”: any act or omission of a party, or failure by a party to perform a relevant obligation under a Contract.
“Defect”: an error in the applicable software that causes it to fail to operate materially in accordance with its Software Specification/Documentation.
“Deliverables”: all software code, documents, products and materials in any form: (i) developed by MD or its agents, contractors and employees; and/or (ii) licensed by OD to the Customer and its Affiliates, as part of or in relation to the performance of its obligations under a Contract, including all Intellectual Property Rights as may be embodied therein. For the avoidance of doubt, Deliverables shall exclude any Third-Party Software.
“Documentation”: any operating manuals, user instruction manuals/guides, technical literature and all other related materials in human-readable or machine-readable forms supplied by MD as specified in the Quote.
“DPA”: the Data Protection Act 2018.
“Effective Date”: in respect of the provision of a particular Service or licence of Software, the Effective Date for the same specified in the Quote, or if none is specified, the effective date for the applicable Contract, or if none is specified, the Start Date of the applicable Contract.
“End User Agreement”: in respect of:
(i) any Third-Party Service, the end user agreement under which the Provider agrees to supply the Third-Party Service to the Customer, referred to in the Quote or required to be accepted by the Provider when accessing the Third-Party Service online;
(ii) Third-Party Software, the end user agreement under which the Provider agrees to licence the Third-Party Software to the Customer, referred to in the Quote or required to be accepted by the Provider when downloading/using the Third-Party Software; and
(iii) any Open-Source Software, the specific licence under which the relevant Open-Source Software is distributed,
(as varied from time to time in accordance with the terms of such End User Agreement).
“Excluded Causes”: any of the following:
(i) misuse, incorrect use of or damage from whatever cause (other than any act or omission by OD), including failure or fluctuation of electrical power;
(ii) failure to maintain the necessary environmental conditions for use;
(iii) use in combination with any equipment or software not provided/approved in writing by OD;
(iv) use in combination with equipment or software which suffers a fault;
(v) relocation or installation by the Customer or any Third-Party;
(vi) any act or omission of a Third-Party;
(vii) any breach of the Customer's obligations under the Contract howsoever arising;
(viii) any modification not authorised by OD;
(ix) operator error; or
(x) any other excluded causes set out in the Quote.
“Excluded Maintenance”: any Software Maintenance Services necessary as a result of any of the Excluded Causes.
“Group”: each and every entity that directly or indirectly controls, is controlled by, or is under common control with a party, for so long as such control exists. In the case of companies and corporations, control means beneficial ownership of more than 50% of the voting stock, shares, interest or equity in an entity; in the case of any other legal entity, “control” and “controlled” shall exist through the ability to directly or indirectly control the management and/or business of the legal entity.
“GDPR”: Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the Processing of Personal Data and repealing Directive 95/46/EC (General Data Protection Regulation) OJ L 119/1, 4.5.2016, together with any implementation of the above into UK law. Any reference to “articles” are references to the GDPR.
“Included Corrective Maintenance”: maintenance services expressly described within the Services Specification, to be provided during the Maintenance Support Hours.
“Initial Licence Term”: in respect of any element of the OD Software, the initial term for such element where specified in the Quote, otherwise the Initial Term.
“Initial Services Term”: in respect of any element of the Services, the initial term for such element where specified in the Quote, otherwise the Initial Term.
“Initial Term” the period of time described as such in the Quote (or if none is stated, 12 months from the Start Date).
“Insolvency Event”: (a) the Customer suspends or threatens to suspend payment of its debts or is unable to pay its debts as they fall due or admits inability
to pay its debts or is deemed unable to pay its debts under section 123 of the Insolvency Act 1986 or is deemed either unable to pay its debts or as having
no reasonable prospect of so doing within the meaning of section 268 of the Insolvency Act 1986 or (if a partnership) has any partner to whom any of the
above applies; (b) the Customer starts negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal
for/enters into any arrangement with its creditors; (c) a petition is filed, a notice is given, a resolution is passed, or an order is made, for/in connection with
the winding up of the Customer; (d) the Customer is the subject of a bankruptcy petition or order; (e) a creditor or encumbrancer of the Customer attaches or
takes possession of, or a distress, execution, sequestration or other process is levied or enforced on or sued against, the whole or part of its assets which is
not discharged within 14 days; (f) an application is made to court, or an order is made to appoint an administrator, or notice of intention to appoint an
administrator is given or an administrator is appointed over the Customer; (g) a floating charge holder over the assets of the Customer becomes entitled to
appoint or has appointed an administrative receiver; (h) a person becomes entitled to appoint a receiver over the assets of the Customer or a receiver is
appointed over the assets of the Customer; (i) any event analogous to those mentioned in (a)-(h) above in another jurisdiction.
“Installation Services”: those installation Services described in clause 7 and detailed in the Quote, if any.
“Intellectual Property Rights”: patents, utility models, rights to inventions, copyright and related rights, trade marks and service marks, business names and
domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use and protect the
confidentiality of confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or
unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and
all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
“Location”: the location for performance of the applicable Services set out in the Quote (if any), or any other location agreed between the parties in writing
from time to time.
“Maintenance Support Hours”: the maintenance support hours specified in the Quote or if no hours are specified, 9.00am to 5.30pm UK time, each Business
“Minimum Amounts”: minimum spend, volumes and/or quantities detailed in the Quote either: (i) across all Services and licensing of Software provided by
OD; or (ii) with respect to the specific Hardware, Services or licensing of Software to which a minimum spend applies, as stated in the Quote.
“New Release”: a new release of all or any part of the Supported Software suitable for use by the Customer in which previously identified faults have been
remedied or to which any modification, enhancement, revision or update has been made, or to which a further function or functions have been added.
“New Version”: a new version of the OD Software released by OD which provides additional or improved functionality or performance.
“Normal Business Hours”: 9.00am to 5.30pm UK time, each Business Day.
“OD Bespoke Software”: software programmes developed by OD specifically for the Customer, as set out in the Quote, including any incorporated Open-
“OD Modified Software: any OD Standard Software which is modified or to be modified by OD under the Contract, including any incorporated Open-Source
“OD’s Personnel”: OD’s employees, directors and agents, together with employees, directors and agents of any contractor undertaking activities on behalf
of OD in relation to the performance of its obligations under the applicable Contract.
“OD Services”: the services to be supplied directly by OD to the Customer, consisting of one or more of the following: Configuration Services, Installation
Services, Training Services, Software Maintenance Services, OD Subscription Services and/or Consultancy Services as set out in the Quote.
“OD Software”: any OD Standard Software, the OD Modified Software, the Bespoke Software and the Software Development Tools referred to in the Quote
and all subsequent amendments and updates to, or new versions of, such software as may be licenced to the Customer under a Contract, excluding any
“OD Standard Software”: any software described as such in the Quote (including any OD Subscription Software), which is licensed directly from OD to the
Customer pursuant to clause 8 and is provided (or made available) to the Customer without modification, together with any incorporated Open-Source
“OD Software Documentation”: any operating manuals, user instruction manuals, technical literature and all other related materials in human-readable or
machine-readable forms supplied by OD in respect of the applicable OD Software, as set out in the Quote.
“OD Subscription Services”: the making available by OD to Customer of access to the OD Subscription Software via the Subscription Hosting Services
(excluding any Third-Party Services).
“OD Subscription Services Specification”: the functionality and performance specifications for the OD Subscription Services, as set out in the Quote.
“OD Subscription Software”: the Remote Apps and the Download Apps (if any).
“Open-Source Software”: any software licensed under any form of open-source licence meeting the Open Source Initiative's Open Source Definition
(http://www.opensource.org/docs/definition.php) or any libraries or code licensed from time to time under the General Public Licence (as described by the
Free Software Foundation and set out at http://www.gnu.org/licenses/gpl.html), or anything similar, included or used in, or in the development of, OD Software,
or with which OD Software is compiled or to which it is linked.
“Order”: Customer’s agreement to the terms of an Quote, which may include signing and returning a Quote or a communication from the Customer to OD
agreeing to the terms of the Quote (within the period during which the terms of the Quote remain valid).
“Order Acceptance”: OD’s acceptance of an Order, which shall consist of a communication from OD to the Customer expressly accepting the Order.
“Out of Hours Maintenance”: maintenance performed outside of the Maintenance Support Hours.
“Permitted Purpose”: the purpose of the Data Processing as set out in more detail in the Data Processing Particulars.
“Personal Data Breach”: has the meaning set out in the GDPR.
“Provider”: the third-party provider of the applicable Third-Party Services or Third-Party Software, as detailed in the Quote.
“Quote”: OD’s written quotation relating to one or more of the following: (i) the supply of OD Services (including any Subcontracted Services); (ii) the licensing
of OD Software; (iii) the provision of Third-Party Services; (iv) the licensing of Third-Party Software.
“Renewal Period” the period described as such in clause 22.1.
“Security Requirements”: the requirements regarding the security of the Personal Data, as set out in the Data Protection Legislation (including, in particular,
the seventh data protection principle of the DPA and/or the measures set out in Article 32(1) of the GDPR (taking due account of the matters described in
Article 32(2) of the GDPR) as applicable.
“Service Credits”: the sums attributable to a failure of the Support Service Level, as set out in the Quote
or added by a change pursuant to Clause 28.2.
“Service Credit Limit”: in respect of a Service to be provided by OD pursuant to a Contract, the limit on the accrual of Service Credits (if any), as set out in
the Quote or added by a change pursuant to Clause 28.2.
“Service Level Start Date”: the start of the month after the Installation Services (if any) and Set-up Services (as applicable) have been satisfactorily
“Service Levels”: in respect of a Service to be provided by OD pursuant to a contract, the service levels for the applicable Services (if any), as set out in the
Quote or added by a change pursuant to Clause 28.2.
“Services”: together, the OD Services and the Third-Party Services.
“Services Specification”: in respect of the OD Services, the specification for the same as set out (or referred to) in the Quote (including in any applicable
statement of work); and in respect of Third-Party Services, the specification from the same determined by the applicable Provider.
“Service Term”: the term for the provision of the applicable Services (or where different elements of the Services are to be provided for differing terms, the
term for that element), as set out in the Quote.
“Software”: any Licensed Software and any Third-Party Software.
“Software Development Services”: those software development Services detailed in the Quote, if any.
“Software Development Tools”: any tools and know-how developed, and methods invented, by OD in the course of or as a result of carrying out the Software
Development Services, whether or not developed or invented specifically or used exclusively to carry out the Software Development Services.
“Software Maintenance Services”: those software maintenance Services detailed in the Quote, if any.
“Software Specification”: the specification of the applicable Software, as detailed in the Quote.
“Sourcing Issue”: an inability on the part of OD to source particular materials or resources (including OD Personnel) on terms similar or identical to those
available at the Effective Date (including due to exchange rate fluctuations, increases in taxes or duties) or a change in Applicable Law.
“Standard Rates”: OD’s standard rates for the OD Services as made available by OD from time to time.
“Standard Support Service”: the support service more particularly described in the Quote.
“Start Date”: as defined in clause 2.1.
“Subcontracted Services”: any services to be provided by OD which it has subcontracted to a third party supplier, the supply of which may be subject to the
Additional Subcontractor Conditions (if any), as set out in the Quote.
“Subject Access Request”: an actual or purported subject access request or notice or complaint from (or on behalf of) a Data Subject exercising his rights
under the Data Protection Legislation.
“Supported Software”: those software programs listed as Supported Software in an Quote and all subsequent amendments and updates to and New
Releases of such programmes made available to the Customer.
“Term”: the period described as such in clause 22.1.
“Term Extension”: each extension to the Term, as detailed in the Quote, or if none is stated an additional period of 12 months from the end of the Initial
Period or previous Term Extension (as applicable).
“Third-Party”: a person other than OD Personnel or the Customer.
“Third-Party Software”: the software to be provided by the applicable Provider pursuant to the applicable End User Agreement, as set out in the Quote.
“Third-Party Services”: any services to be provided by the applicable Provider pursuant to the applicable End User Agreement, as set out in the Quote.
“Training Services”: those training Services detailed in the Quote, if any.
“Virus”: anything 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.
“Year”: the period of 12 calendar months from the applicable Effective Date and each 12 calendar month period thereafter.
2. BASIS OF CONTRACT
2.1 Each Quote provided to the Customer constitutes an invitation to treat by OD. Unless stated to the contrary in the Quote, all charges and timescales
2.2 Each Order constitutes an offer by the Customer to provide Services and/or make available the OD Software. Following receipt of an Order, OD shall
at its option submit an Order Acknowledgement to the Customer, which shall form a contract subject to the terms of the applicable Quote and these
Conditions (“Contract”). Should the Order (or any other correspondence from the Customer) contradict in any way the Quote or any of these
Conditions (“Contradictory Terms”), such Contradictory Terms shall not be incorporated unless and to the extent that a revised Quote is issued
incorporating any of the Contradictory Terms. A Contract shall come into existence immediately following the sending of an Order Acknowledgement
to the Customer (“Start Date”).
2.3 After the Start Date, a Contract may not be terminated except in accordance with its terms.
2.4 Unless expressly stated to the contrary in the relevant Quote (or otherwise agreed in writing by OD), each Quote is only valid for 30 days from its
date of issue.
2.5 If there is an inconsistency between any of the provisions of a Contract, the following descending order of priority shall apply: (i) the Quote itself; and
then (ii) these Conditions.
2. 6 Each party warrants that: (i) it has full capacity to enter into and perform its obligations under a Contract; and (ii) each Contract is executed by a duly
authorised representative of that party.
2.7 The warranties set out at clause 2.6 above are deemed to be repeated by each party in respect of a Contract on the applicable Start Date for the
2.8 In consideration for the payment of the Charges, OD will provide the Services and/or grant access to any OD Software (as appropriate) in accordance
with the Contract, from the applicable Effective Date.
3 CUSTOMER OBLIGATIONS
3.1 The Customer shall:
3.1.1 provide all necessary co-operation reasonably required in relation to a Contract;
3.1.2comply with any and all obligations which are set out in the Quote, including in the applicable Services Specification which are stated to be
performed by the Customer and any other obligations which are apparent or would be ordinarily expected to be complied with by the
Customer in the ordinary course of receipt of similar services;
3.1.3 provide such assistance from the Customer Personnel as may be reasonably requested by OD from time to time;
3.1.4 ensure that the terms of each Contract (including any specification) are complete and accurate;
3.1.5 respond promptly to any request for a decision, guidance, information or instruction which OD may submit in relation to a Contract from
time to time;
3.1.6 not to do or permit anything to be done that will or may damage the business, reputation, image and/or goodwill of OD;
3.1.7 comply with the Acceptable Use Policies (if any);
3.1.8 only use the Services for lawful purposes and shall not use the Services: (i) in any way that breaches any Applicable Law; (ii) in any way
that is unlawful or fraudulent, or has any unlawful or fraudulent purpose or effect; (iii) for the purpose of harming or attempting to harm
minors in any way; (iv) to send, knowingly receive, upload, download, use or re-use any material which does not comply with the content
standards set out in clause 3.2; (v) transmit, or procure the sending of, any unsolicited or unauthorised advertising or promotional material
or any other form of similar solicitation (spam); (vi) knowingly transmit any data, send or upload any material that contains a Virus; and (vii)
not (and shall not attempt to) probe, scan, penetrate or test the vulnerability of any systems or networks of OD or to breach any of OD’s
security or authentication measures, whether by passive or intrusive techniques, without OD’s prior written consent;
3.1.9 ensure that there are in place all necessary consents, licences and permissions required to permit OD to access and use all the Customer
Content and Customer Materials and any other items as may be appropriate in connection with each and every Contract; and
3.1.10 be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to OD’s data
centres (or, where appropriate, the third-party portal through which OD provides Services to the Customer).
3.2 The content standards are as follows.
3.2.1 Content must: (i) be accurate (where they state facts); (ii) be genuinely held (where they state opinions); and (iii) comply with Applicable
3.2.2 Content must not: (i) contain any material which is defamatory of any person, obscene, offensive, hateful or otherwise inflammatory; (ii)
promote sexually explicit material; (iii) promote violence; (iv) promote discrimination based on race, sex, religion, nationality, disability,
sexual orientation or age; (v) be used to impersonate any person, or to misrepresent your identity or affiliation with any person; (vi) infringe
the copyright, database right or trade mark of any other person; (vii) give the impression that they emanate from OD, if this is not the case;
or (viii) advocate, promote or assist any unlawful act.
4 OD SERVICES
4.1 The terms of this clause 4 apply with respect to any OD Services supplied pursuant to a Contract.
4.2 During the applicable Services Term, in consideration for the payment of all applicable Charges, OD shall provide the applicable OD Services to the
Customer materially in accordance with the Services Specification.
4.3 OD shall use reasonable endeavours to observe all health and safety and security requirements that apply at the Customer's premises and that have been communicated to it in advance of the provision of the OD Services, provided that it shall not be liable under the Contract if, as a result of such observation, it is in breach of any of its obligations under the Contract.
4.4 OD will use its reasonable endeavours to supply all relevant OD Services in accordance with any performance metrics set out in the Quote in respect of such OD Services.
4.5 In respect of the OD Services, OD shall use reasonable endeavours to meet any performance dates specified in the Quote/Services Specification, but any such dates are estimates only and time is not of the essence for the performance of the OD Services.
4.6 If performance of the OD Services is delayed at the request of the Customer, or because of any acts or omissions of the Customer, the parties may agree revised dates for performance. At its discretion, OD may apply a reasonable increase to the Charges as a result of such delay.
4.7 OD shall have the right to make any changes to the OD Services which: (i) improve the nature or quality of the OD Services; (ii) are necessary to comply with Applicable Law; (iii) result from a Sourcing Issue; or(iv) do not materially negatively affect the nature or quality of the OD Services, and OD shall notify the Customer in any such event. Such notification shall include any variations to the Charges which OD reasonably considers to be necessary in light thereof.
4.8 OD shall use its reasonable endeavours to comply with any applicable Service Levels from the Service Level Start Date
4.9 Where Service Credits are stated to accrue, subject to the Service Credit Limit, OD shall automatically credit the Customer with the applicable Service Credits. Service Credits shall either be shown as a deduction from the amount due from the Customer to OD in the next invoice then due to be issued under the Service Contract, or OD shall issue a credit note against a previous invoice and the amount for the Service Credits shall be repayable by OD as a debt within 10Business Days of issue of the credit note.
4.10The Service Credits shall be the exclusive financial remedy for the Customer for each service failure for which a Service Credit has been set, unless:
4.10.1 the Customer is otherwise entitled to terminate the Contract (or a part thereof) for a Default by OD in accordance with these Conditions; or
4.10.2 the failure to perform the relevant Services in accordance with the Service Levels has arisen due to theft, gross negligence, fraud, fraudulent misrepresentation or wilful default.
4.11 The parties agree that any such Service Credits have been calculated as, and are, a genuine pre-estimate of the loss likely to be suffered by the Customer.
4.12 Where there is a Default on the part of the Customer, OD (without limiting its other rights or remedies)may suspend performance (and is relieved from its performance obligations) until the Customer remedies the same. The Customer shall be liable for any costs incurred by OD
5. SOFTWARE DEVELOPMENT SERVICES
5.1 The terms of this clause 5 apply where OD has agreed under a Contract to provide any Software Development Services.
5.2 OD shall develop the Bespoke Software and make the modifications to the Modified Software in accordance with the applicable Software Specification.
5.3 Before delivering any item of Bespoke Software or Modified Software, OD shall carry out its standard tests to ensure that such item is in operable condition and is capable ofmeeting the requirements of the Software Specification, or such tests as are specified in the applicable Quote (or are otherwise agreed in writing between the parties).
5.4 The Customer shall be deemed to have accepted the Bespoke Software or Modified Software if either:(i) the acceptance testing is certified by OD to be successful; (ii) the Customer fails to provide the data or results necessary for acceptance testing to be undertaken within the time limits specified in the Quote (in respect of which, time shall be of the essence); or (iii) the Customer commences operational use of the Bespoke Software or Modified Software (as applicable).
6 CONFIGURATION SERVICES
6.1 The terms of this clause 6 apply where OD has agreed under a Contract to provide any Configuration Services.
6.2 The Customer shall in a timely manner:
6.2.1 provide all the Customer Content;
6.6.2 prepare its premises, equipment and existing systems (or those of its third-party contractors); and
6.2.3 facilitate such access to the Customer's premises, equipment and existing systems(or those of its third-party contractors), as may be needed for OD to perform the Configuration Services.
6.3 OD shall carry out any such Configuration Services at the Location (or, at OD’s option where applicable, via remote access),and subject the results of such services (“Configuration”) to its standard installation and acceptance tests, or such tests as are specified in the applicable Quote.
6.4The Customer shall be deemed to have accepted the Configuration if either: (i) the acceptance testing is certified by OD to be successful; (ii) the Customer fails to provide the data or results necessary for acceptance testing to be undertaken within the time limits specified in the Quote (in respect of which, time shall be of the essence); or (iii) the Customer commences operational use of the Configuration.
7 INSTALLATION SERVICES
7.1 The terms of this clause 7 apply where OD has agreed under a Contract to install any items of hardware or software (the “Installation Materials”),
as stated in the Quote.
7.2 The Customer shall in a timely manner:
7.2.1 provide all the Customer Content and Customer Materials;
7.2.2 prepare its premises, equipment and existing systems(or those of its third-party contractors); and
7.2.3 facilitate such access to the Customer's premises, equipment and existing systems(or those of its third-party contractors), as may be needed for OD to perform the Installation Services.
7.3 OD shall carry out any such installs at the Location (or, at OD’s option where applicable, via remote access), and subject the Installed Materials to its standard installation and acceptance tests, or such tests as are specified in the applicable Quote.
7.4 The Customer shall be deemed to have accepted the Installation Materials if either: (i) the acceptance testing is certified by OD to be successful;(ii) the Customer fails to provide the data or results necessary for acceptance testing to be undertaken within the time limits specified in the Quote (in respect of which, time shall be of the essence); or (iii) the Customer commences operational use of the Installation Materials.
8 OD SOFTWARE
8.1 The terms of this clause8 apply where the Customer licences any OD Software from OD.
8.2 In consideration for the payment of all applicable Charges, OD hereby grants to the Customer anon-exclusive licence for the Licence Term to use the OD Software.
8.3 Use of the Licensed Software shall be restricted to: (i) the Licence Type restrictions set out in the Quote for the same; (ii) the Quantity restrictions set out in the Quote for the same; (iii) the Use Extent set out in the Quote; (iv) object code form; (v) the purpose described in the Quote; (vi) the normal business purposes of the Customer (and, where “Group use” is expressly permitted in the Quote, the normal business purposes of the Customer’s Affiliates); (vii) employees of the Customer (and, where “contractor use” is permitted in the Quote, third-party contractors using the same solely for the benefit of the Customer(and, where “Group use” is permitted in the Quote, for the benefit of the Customer's Affiliates)).
8.4 Save where stated to the contrary in the Quote, for the period of: 30 days from delivery, the OD Software will perform in accordance with the Software Specification/Documentation in all material respects. The Customer’s sole remedy for breach of the warranty under this clause 8.4 shall be the correction of the Defect by OD within a reasonable time from notification by the Customer of the same. Delivery of OD Software shall be deemed to occur as follows: (i) Downloadable software(no activation key necessary): When OD provides the Customer with valid details or credentials necessary to download the Software; (ii) Activation key is necessary: OD provides a valid activation key for any software requiring an activation key; (iii) Physical disk or drive containing the software: The disk or drive is delivered to the Customer at the Customer's premises.
8.5 OD may provide to the Customer, from time to time, copies of the Documentation containing sufficient up-to-date information for the proper use and maintenance of the Software. Such Documentation may be supplied in electronic form.
8.6 The Customer may make such further copies of the Documentation as are reasonably necessary for the use and maintenance of OD Software and for training the Customer's personnel in use of OD Software. The Customer shall ensure that all of OD's proprietary notices are reproduced in any such copy. The Customer may provide copies of the Documentation to any third party who needs to know the information contained in it, provided that such third party first enters into appropriate confidentiality obligations no less stringent than those contained in these Conditions.
8.7 Any unauthorised modifications, use or improper installation of OD Software by the Customer (or on behalf of the Customer, other than by OD Personnel) shall render all OD's warranties and obligations under the Contract null and void. OD shall not be obliged to rectify any particular Defect if attempts to rectify such Defect other than normal recovery or diagnostic procedures have been made by the Customer's personnel or third parties without the permission of OD.
Notwithstanding any other provision, OD specifically denies any implied or express representation that the OD Software will:
8.8.1 be fit to operate in conjunction with any hardware items or software products other than with those that are identified in the Quote (or in the relevant documentation) as being compatible with the Licensed Software; or
8.8.2 operate uninterrupted or error-free.
The Customer may not use the OD Software other than as specified in this clause without the prior written consent of OD, and the Customer acknowledges that additional fees may be payable on any change of use approved by OD.
8.10 Except as expressly licensed, the Customer has no right (and shall not permit any third party) to copy, adapt, reverse engineer, access all or any part of the OD Software in order to develop software which competes with the same, decompile, disassemble, modify, adapt or make error corrections to the same in whole or in part.
8.11 The Customer shall not: (i) sub-license, assign or novate the benefit or burden of the licence to the OD Software in whole or in part; (ii) allow the OD Software to become the subject of any charge, lien or encumbrance; or (iii) deal in any other manner with any or all of its rights and obligations under the Contract, without the prior written consent of OD.
8.12 The Customer shall: (i) ensure that the number of persons using the OD Software does not exceed the number specified in the Quote; (ii) notify OD as soon as it becomes aware of any unauthorized use of the OD Software by any person; (iii) pay, for broadening the scope of the licences granted under this licence to cover the unauthorized use, an amount equal to the fees which OD would have levied (in accordance with its normal commercial terms then current) had it licensed any such unauthorised use on the date when such use commenced together with interest at the rate provided for under these Conditions, from such date to the date of payment.
8.13 The Customer shall use reasonable endeavours to prevent any unauthorised access to, or use of, the
8.14 OD Software and notify OD promptly of any such unauthorised access or use.
The Customer shall permit OD to inspect and have access to any premises (and to the computer
equipment located there) at or on which the OD Software is being kept or used, and have access to
any records kept in connection with this licence, for the purposes of ensuring that the Customer is
complying with the terms of this licence, provided that OD provides reasonable advance notice to
the Customer of such inspections, which shall take place at reasonable times. This right shall
continue beyond termination/expiry to enable OD to verify that use has ceased.
9 OPEN-SOURCE SOFTWARE
9.1 The terms of this clause 9 apply where Open-Source Software is made available to the Customer pursuant to a Contract.
9.2 The Customer acknowledges and agrees that:
9.2.1 OD is making such Open-Source Software available pursuant to the terms of the applicable End User
Agreement and such software is provided "as is" and expressly subject to the disclaimer in clause
9.2.2 any such Open-Source Software provided by OD may only be used according to the terms and conditions of the End User Agreement.
The Customer shall comply with the terms of the End User Agreement.
10 SOFTWARE MAINTENANCE SERVICES
10.1 The terms of this clause 10 apply where the Customer orders Software Maintenance Services from OD.
10.2 OD shall provide the Software Maintenance Services for the Supported Software to the Customer in accordance with the description and specification set out in the Quote.
10.3 On the Customer informing OD within Maintenance Support Hours of a Defect in the Supported Software, OD shall perform Included Corrective Maintenance of the Supported Software.
10.4 On the Customer informing OD outside of Maintenance Support Hours of a Defect in the Supported
Software, OD shall perform Additional Corrective Maintenance of the Supported Software.
10.5 With respect to Excluded Maintenance:
10.5.1 OD is not obliged to perform any Excluded Maintenance unless the Customer has agreed to pay the applicable Charges in respect of it; and
10.5.2 where OD is performing or has performed the Software Maintenance Services in circumstances where it is subsequently established that the Defect in the Supported Software was due to any of the Excluded Causes, OD may charge, and the Customer shall pay, the applicable additional Charges in
respect of that work.
10.6 Any Charges for Additional Maintenance Services shall be calculated on a time and materials basis.
11 SUBCONTRACTED SERVICES
11.1 The terms of this clause 11 apply where the Customer orders a Subcontracted Service from OD.
11.2 The Customer acknowledges and agrees that the provisions contained in these Conditions relating to OD Services shall apply to such Subcontracted Services (save where expressly excluded) as may be added to or amended by any applicable Additional Subcontractor Conditions.
12 THIRD-PARTY SERVICES
12.1 The terms of this clause 12 apply where the Customer orders Third-Party Services from OD.
12.2 The Customer acknowledges and agrees that:
12.2.1 OD is an agent of the Provider of the Third-Party Service;
12.2.2 OD is not providing the Third-Party Services to the Customer;
12.2.3 it shall receive the Third-Party Services direct from the Provider subject to and in accordance with the applicable End User Agreement.
The Customer shall comply with the terms of the End User Agreement.
13 THIRD-PARTY SOFTWARE
13.1 The terms of this clause 13 apply where the Customer orders Third-Party Software from OD.
13.2 The Customer acknowledges and agrees that:
13.2.1 OD is an agent of the Provider of the Third-Party Software;
13.2.2 OD is not licensing the Third-Party Software to the Customer;
13.2.3 it shall be licensed to use the Third-Party Software only as specified in the applicable End User
Agreement. For the avoidance of doubt, no licence is granted by OD.
13.3 The Customer shall comply with the terms of the applicable End User Agreement.
14 TRAINING SERVICES
14.1 The terms of this clause 14 apply where the Customer orders Training Services from OD.
14.2 The Customer acknowledges and agrees that:
14.2.1 any individual identified in the Quote or otherwise may be replaced at any time with another qualified individual at OD’s option
14.2.2 any materials provided in respect of Training Services are licensed to the Customer solely for the purposes of the receipt of such Training Services by the Customer Personnel, unless and to the extent that wider use by other Customer Personnel is stated within the Quote.
15.1 The price for Services and licences of the Third-Party Software is the price set out in the Quote. Where no price is quoted, it shall be:
15.1.1 the price set out in OD’s published price list as at the Start Date for performance of the relevant Services; or
15.1.2 where applicable in respect of Services, on a time and materials basis in accordance with the
15.2 Except where expressly agreed in writing to the contrary, the Charges shall not include travel or accommodation expenses, which shall become payable upon production of mileage claims/appropriate receipts. At the Effective Date, the mileage rate is 55p per mile.
15.3 Where the Quote specifies one or more Minimum Amounts with respect to the Services (or any part of
them) such Minimum Amount(s) must be complied with by the Customer.
15.4 On no less than 2 months’ written notice to the Customer prior to a Term Extension, OD may (in addition to any other pricing change permitted pursuant to these conditions) adjust the Charges by a percentage equal to the percentage increase in the RPI since the prices were last set/revised, as appropriate.
15.5 If it is reasonably apparent that any of the pricing in the Quote is incorrect (“Obvious Pricing Error”), the Customer must notify OD of the same. When OD becomes aware of an Obvious Pricing Error, it shall promptly notify the Customer of the error together with the correct price (“Correct Price”). Following notification of the Correct Price, such price shall apply in place of the Obvious Pricing Error. If the Customer objects to the Correct Price, it may terminate the relevant Contract on written notice to OD.
15.6 Where a failure of the Customer to comply with its obligations in the Contract (including those set out in these terms and conditions as well as the Quote) results in additional costs for OD and/or wasted time, OD may charge the Customer for the same on a time and materials basis. In order to calculate the same, OD’s Standard Rates shall apply unless other rates are specified in the Quote.
15.7 Unless otherwise specified to the contrary in the applicable Quote, OD will invoice the Customer as described below:
Third-Party Services: Annually in advance
Licensed Software Support Services : Annually in advance, contemporaneous with Licensed Software charges
Other Services: Weekly in arrears
Licensed Software: Annually in advance
15.8 If Services are not performed as a result of the acts or omissions of the Customer, OD may invoice the same on the date upon which delivery/performance was attempted.
15.9 The Customer shall pay each invoice which is properly due and submitted to it by OD within 30 days of invoice date (save in respect of charges for the provision of Transition Assistance, which shall be paid within 5 days of invoice date), to a bank account nominated in writing by OD. If OD has not received a payment which is validly due within such period, and without prejudice to any other rights and remedies it may have (but subject to any Applicable Law in force at the time which restrict or exclude the same), OD may charge interest on a daily basis on such due amounts at an annual rate equal to 8% over the then current base lending rate of Barclays Bank Plc from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment. Such interest shall accrue on a daily basis and be compounded quarterly.
15.10 In respect of any Consultancy Services ordered by the Customer, a minimum cancellation period of 7 days is required, otherwise the agreed consulting fee will be charged in full.
15.11 All Charges stated or referred to in a Contract are exclusive of:
15.11.1 value added tax or other sales taxes, which shall be added to OD’s invoice(s) at the appropriate rate; and
15.11.2 all packing, insurance and transport costs, which shall be paid by the Customer (unless the same is expressly stated to be included within the price in the Quote).
15.12 OD may, without limiting its other rights or remedies, set off any amount owing to it by the Customer or any Affiliate against any amount payable by OD to the Customer.
16 INTELLECTUAL PROPERTY
16.1 OD warrants that it has, and will continue to have, all necessary rights in and to any and all Intellectual Property Rights that it purports to grant to the Customer pursuant to a Contract. The Customer warrants to OD that OD's possession and use in accordance with this agreement of any materials (including third-party materials supplied by the Customer to OD) shall not cause OD to infringe the rights, including any Intellectual Property Rights, of any third party.
16.2 The Customer acknowledges and agrees that:
16.2.1 unless and to the extent expressly stated to the contrary in respect of Bespoke Software or Modified Software in the Quote, OD and/or its licensors own all Intellectual Property Rights in the OD Services and the OD Software; and
16.2.2 the applicable Provider and/or its licensors own all Intellectual Property Rights in the Third-Party Services and the Third-Party Software.
16.3 Where it is expressly stated in the Quote that any Intellectual Property Rights in Bespoke Software or Modified Software vest in the Customer (“Transferring Intellectual Property Rights”), the Customer hereby grants to OD a non-exclusive, worldwide, royalty free, sub-licensable licence to use, modify, translate or otherwise exploit the Transferring Intellectual Property Rights in any manner whatsoever.
16.4 Except as expressly stated herein, these Conditions do not grant the Customer any Intellectual Property Rights or any other rights or licences to, in or in respect of the Services or Software.
16.5 OD acknowledges and agrees that the Customer and/or its licensors own all Intellectual Property Rights in the Customer Content. Except as expressly stated herein or as is necessary to perform OD’s obligations under a Contract, these Conditions do not grant OD any Intellectual Property Rights or any other rights or licences to or in respect of any Customer Content.
16.6 Nothing in these Conditions shall be construed so as to prevent OD from using in the furtherance of its own business general know-how or expertise gained in its performance of a Contract, provided that any such use does not constitute or result in a disclosure of any Confidential Information in breach of clause 18 or infringement of any Intellectual Property Rights.
17.1 The Customer may at any time during the Term request (“Escrow Request”) OD places the source code of the Licensed Software (and all technical information and documentation reasonably required to enable the Customer to modify and operate it) (“Source Code Materials”) into escrow, as more particularly detailed below.
17.2 Following the Customer’s exercise of its rights under this escrow clause
17.2.1 OD and the Customer mutually undertake to enter into an escrow agreement (“Escrow Agreement”) as follows: (i) the agreement shall be with OD’s then current escrow agent (“Escrow Agent”), which at the date of this agreement is NCC Group Escrow Limited; (ii) on the standard three party escrow agreement form of the Escrow Agent, which at the date of this agreement is NCC’s Single Licensee Software Escrow Agreement; (iii) sign NCC Group Escrow Limited’s (“an escrow agreement in the form of the Escrow Agreement promptly following signature of this licence.
17.2.2 OD additionally undertakes to procure that the Escrow Agent signs the Escrow Agreement.
17.2.3 OD and the Customer mutually undertake to abide by the terms of the Escrow Agreement and acknowledge that for the purposes of the Escrow Agreement: (i) the Source Code Materials shall constitute the “Material” as defined in NCC’s Single Licensee Software Escrow Agreement; (ii) the Licensed Software shall constitute the “Package” as defined in NCC’s Single Licensee Software Escrow Agreement; (iii) the “Release Events” referred to in NCC’s Single Licensee Software Escrow Agreement shall be limited to insolvency only of OD; and (iv) deposits shall be required to be made under the Escrow Agreement no more frequently than annually.
17.2.4 The Customer shall be responsible for all sums due to the Escrow Agent, including those sums relating to the set-up of the Escrow Agreement, annual fees, update fees, deposit refresh fees and release fees together with OD’s reasonable professional charges reasonably incurred in supporting an Escrow Request.
18.1 Each party may be given access to Confidential Information from the other party, any member of its Group or any of its Affiliates in order to perform its obligations under a Contract. A party's Confidential Information shall not include information that:
18.1.1 is or becomes publicly known other than through any act or omission of the receiving party;
18.1.2 was in the other party's lawful possession before the disclosure;
18.1.3 is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
18.1.4 is independently developed by the receiving party, which independent development can be shown by written evidence.
18.2 Subject to clause 18.4 below, each party shall hold the other's Confidential Information (including any such information originating from any of its Affiliates or any other member of its Group) 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 performance of its obligations under a Contract.
18.3 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 these Conditions, save to other members of its Group, its Affiliates, or its professional advisors.
18.4 A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 18.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
18.5 Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any unconnected third party.
18.6 OD acknowledges that any Customer data which it is given access to is the Confidential Information of the Customer.
18.7 OD may publicise its involvement with the Customer for its own marketing purposes, and any such publication shall not constitute an unlawful disclosure of Confidential Information for the purposes of this clause 18.
19 DATA PROTECTION ARRANGEMENTS
19.1 The parties acknowledge that the factual arrangement between them dictates the classification of each party in respect of the Data Protection Legislation. However, the parties anticipate that the Customer shall act as a Controller and OD shall act as a Processor and in any such case:
19.1.1 OD shall be a Controller where it is collecting and using Personal Data in relation to the management of its Customer accounts; and
19.1.2 OD shall be a Processor where it is Processing Personal Data in relation to the Data Processing Particulars in connection with performing its obligations under a Contract.
19.2 OD shall comply with, and shall procure that any Affiliates comply with, the provisions of the Data Protection Legislation in relation to all Personal Data that is Processed by it in connection with a Contract.
19.3 OD shall be permitted to appoint sub-contractors, and to disclose Personal Data to them for Processing in accordance with the relevant Contract, provided always that the sub-contractor's right to Process the Personal Data terminates automatically on expiry or termination (for whatever reason) of the relevant Contract for which the sub-contractor was engaged.
20 DATA PROCESSING OBLIGATIONS
20.1 To the extent that OD is acting as a Processor for and on behalf of the Customer, it shall:
20.1.1 Process Personal Data for and on behalf of the Customer for the purposes of performing its obligations under a Contract, and only in accordance with the terms of that Contract and any documented instructions from the Customer;
20.1.2 notify the Customer immediately (and in any event within 24 hours of becoming aware of the same) if it believes (or ought reasonably to have been aware) that any of the Customer's written instructions infringe the Data Protection Legislation;
20.1.3 implement and maintain appropriate technical and organisational security measures which are sufficient to comply with at least the obligations imposed on the Customer by the Security Requirements;
20.1.4 take all reasonable steps to ensure the reliability and integrity of any OD Personnel who shall have access to the Personal Data;
20.1.5 ensure that access to the Personal Data is restricted to only those members of OD’s Personnel who require it in order to discharge OD’s obligations under a Contract;
20.1.6 notify the Customer promptly (and in any event within 2 Business Days) following its receipt of any Subject Access Request or correspondence from the UK Information Commissioner's Office or any other European data protection authority, and together with such notices, shall provide a copy of such Subject Access Request or correspondence and reasonable details of the circumstances giving rise to it; and
20.1.7 with respect to a Subject Access Request, not disclose any Personal Data in response without the express written authorisation of the Customer.
20.2 Where OD becomes aware (or reasonably should have become aware) of an actual or suspected Personal Data Breach, it shall:
20.2.1 notify the Customer as soon as is practicable, but in any event within 48 hours, including details of how the breach occurred and what Personal Data may have been compromised;
20.2.2 implement any measures necessary to restore the security of compromised Personal Data; and
20.2.3 assist the Customer to make any notifications to the UK Information Commissioner’s Office and affected Data Subjects.
20.3 Except to the extent required by Applicable Law, upon the termination of a Contract for any reason, or earlier if instructed in writing by the Customer to do so, OD shall cease Processing all Personal Data and return and/or permanently and securely destroy so that it is no longer retrievable (as directed in writing by the Customer) all Personal Data and all copies in its possession or control (and it shall provide the Customer with a certificate signed by a duly authorised representative confirming it has done so). Where the Customer makes any such request prior to the termination of a Contract, and it serves to hinder or prevent OD’s obligations thereunder, the Contract shall continue despite such reduced performance, and the Charges which have been paid or which will become payable shall not be affected thereby.
21 WARRANTIES, INDEMNITIES & LIMITATION OF LIABILITY
21.1 All representations or warranties (whether written or oral, express or implied by statute, common law or otherwise) apart from those expressly set out in these Conditions are hereby excluded. In particular, but without prejudice to the generality of the foregoing, OD makes no representation or gives any warranty (whether express or implied, statutory and/or otherwise), and will have no liability, regarding the fitness of the Services or Software for any purpose, whether or not such purpose is disclosed to OD.
21.2 The Customer hereby indemnifies OD from and against any and all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by OD in connection with:
21.2.1 OD’s storage/handling of any Customer data;
21.2.2 any failure of the Customer to obtain appropriate licences and/or consents in accordance with its obligations under these Conditions or any subsequent revocation or non-renewal of any such licence and/or permit;
21.2.3 any failure of the Customer to ensure its compliance with Applicable Law in accordance with its obligations under these Conditions;
21.2.4 any use of the Services or the OD Software by Client other than as envisaged under the Contract;
21.2.5 the Customer's breach of any End User Agreement; and
21.2.6 any other Customer Default.
21.3 OD shall defend the Customer, its officers, directors and employees against any claim that the OD Software or OD Services infringe any United Kingdom patent effective as of the Start Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Customer for any amounts finally awarded against Client in judgment or settlement of such claims, provided that:
21.3.1 OD is given prompt notice of any such claim;
21.3.2 the claim does not result from the Customer’s failure to install an update or new version of any OD Software as soon as is practicable following its release by OD;
21.3.3 the Customer provides reasonable co-operation to OD in the defence and settlement of such claim (at OD’s expense, provided such expenses are reasonable and can be evidenced to OD’s satisfaction); and
21.3.4 OD is given sole authority to defend or settle the claim.
In the defence or settlement of any claim, OD may procure the right for the Customer to continue using the OD Software or OD Services, replace or modify the OD Software or OD Services so that they become non-infringing or, if such remedies are not reasonably available, terminate the Contract on 2 Business Days' notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer. In no event shall OD, 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 OD Software or OD Services by anyone other than OD; (b) the Customer's use of the OD Software or OD Services in a manner contrary to the instructions given to the Customer by OD; or (c) the Customer's use of the OD Software or OD Services after notice of the alleged or actual infringement from OD or any appropriate authority. The foregoing states the Customer's sole and exclusive rights and remedies, and OD’s (including its employees', agents' and sub-contractors') entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
21.4The following provisions set out the entire financial liability of either party (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the other in respect of:
21.4.1 any breach of these Conditions howsoever arising; and
21.4.2 any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including negligence) arising under or in connection with a Contract.
21.5 Nothing in these Conditions shall limit or exclude OD’s or the Customer’s liability for:
21.5.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or sub-contractors;
21.5.2 fraud or fraudulent misrepresentation; and
21.5.3 any other liability which cannot be limited or excluded by Applicable Law.
21.6 In the event of a Default by OD, OD’s liability in respect of loss or damage to tangible property of the Customer shall not exceed £10,000.
21.7 Subject to clauses 21.5 and OD’s liability in respect of loss or damage under a Contract in any 12 month period shall not exceed the lower of:
21.7.1 a sum equal to the total Charges paid and payable to OD by the Customer under such Contract during the period of 12 months immediately prior to the event giving rise to the claim, or
however that liability arises including breach of contract, tort, misrepresentation or breach of statutory duty.
21.8 Subject to clause 21.5, in no event will OD be liable to the Customer (whether in contract, tort, negligence or otherwise): for any delay in performance of the Services or any failure to perform the Services that is caused or contributed to by a Force Majeure Event or any Client Default
21.8.2 for the Third-Party Services or the Third-Party Software beyond compliance with clause 13.3;
21.8.3 for any damage caused by errors or omissions in any information, instructions or scripts provided to OD by the Customer in connection with the Managed Services, or any actions taken by OD at the Customer's direction;
21.8.4 for any loss not flowing directly and naturally in the ordinary course of events from its own act or omission;
21.8.5 for any loss of profit, revenue, use, anticipated savings, data, goodwill or opportunity or damage to reputation;
21.8.6 for any indirect, special or consequential loss or damage;
21.8.7 to the extent that any delay in performing or failure to perform OD’s obligations is due to a failure by the Customer to perform its own obligations under a Contract or if delay results from a failure by the Customer to comply with reasonable requests by OD for instructions, information or action required by it to perform its obligations within a reasonable time; or
21.8.8 for the consequences of any acts or omissions of the Customer or the Customer Personnel.
22 TERM AND TERMINATION
22.1 Each Contract shall commence on the Effective Date and continue for the Initial Term (or until performance of Services has been completed) and each Term Extension (the “Term”) unless terminated in accordance with its terms. Each Term Extension shall automatically be added to the Term unless either party gives the other not less than 90 days’ written notice of termination (or such other period of notice stated in the applicable Quote), such termination to occur at the end of the Initial Period or Term Extension, as applicable.
22.2 Without prejudicing any other right or remedy available to it, either party may terminate the relevant Contract with immediate effect by giving written notice to the other party if:
22.2.1 the other party fails to pay any amount due under the Contract on the due date for payment and remains in default not less than 10 Business Days after being notified in writing to make such payment;
22.2.2 the other party commits a material breach of any other term of the Contract which breach is irremediable or (if remediable) fails to remedy it within a period of 10 Business Days after being notified in writing to do so (this clause 22.2.2 only applies if Service Credits are not applicable); or
22.2.3 the other party repeatedly breaches any of the terms of the Contract in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms under the Contract.
22.3 Without prejudicing any other right or remedy available to it, OD may terminate any Contract should an Insolvency Event occur.
22.3 Without prejudicing any other right or remedy available to it, OD may terminate any Contract with immediate effect by giving written notice to the Customer if there is a change of control of the Customer (within the meaning of section 1124 of the Corporation Tax Act 2010).
22.5 Without prejudicing any right to terminate which OD may have, OD will be entitled to suspend any Services without notice if:
22.5.1 there is a Default on the part of the Customer; or
22.5.2 any of the events set out in clauses 22.2, 22.3 or 22.5 occur in relation to the Customer.
22.6 OD may rely on the suspension to relieve it from the performance of any of its obligations in each case to the extent the suspension prevents or delays the performance by OD of any of its obligations and OD shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from any failure or delay by OD to perform any of its obligations as set out in this clause. OD shall during the period of any suspension be entitled to refuse to release any IP Address used by the Customer allocated by OD.
22.7 Where OD acquires the right to terminate or suspend Services under a Contract pursuant to this clause 22, such right shall extend to any other Contracts concluded between the parties incorporating these Conditions, whether prior or subsequent to the Contract under which the right of termination or suspension has arisen.
22.8 The Customer may terminate the Contract immediately if there is a Manifest Pricing Error as detailed in Clause 15.5.
23 CONSEQUENCES OF TERMINATION
23.1 On termination for any reason:
23.1.1 all rights granted to the Customer under the Contract shall cease;
23.1.2 for the avoidance of doubt, all rights granted to the Customer under any End-User Agreement shall continue in accordance with the terms of that agreement;
23.1.3 the Customer shall cease all activities authorised by the Contract; and the Customer shall immediately pay any sums due to OD (including sums on a time and materials basis for any work in progress) without set off or deduction.
23.2 Subject to OD’s obligations with respect to any other Contract which remains in force, each party shall return and make no further use of any equipment, property, documentation and other items (and all copies of them) belonging to the other party.
24.1 The Customer may not freely assign, sub-contract, charge or otherwise deal in any other manner with all or any of its rights or obligations under a Contract without the consent of OD, such consent not to be unreasonably withheld or delayed.
24.2 OD may freely assign, sub-contract, charge or otherwise deal in any other manner with all or any of its rights or obligations under a Contract without the prior written consent of the Customer.
24.3 The Customer agrees that it shall co-operate and undertake all matters at OD’s cost and expense that are necessary to novate or assign any Contract or any parts thereof to any third party when requested to do so by the Customer.
25 FORCE MAJEURE
25.1 Neither party shall be in breach of a Contract nor liable for delay in performing, or failure to perform, any of its obligations under that Contract if such delay or failure results from events, circumstances or causes beyond its reasonable control, including strikes; lock-outs or other industrial disputes (except with respect to that party's own employees); acts of God; war; riot; civil commotion; compliance with any law or governmental order, rule, regulation or direction; accident; fire, flood, or storm. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations, provided that if the period of delay or non-performance continues for 2 months, the party not affected may terminate the relevant contract (together with any other Contract between the parties) by giving 10 Business Days' written notice to the other party.
26.1 A notice given pursuant to the Contract shall be in writing, addressed to the place of business of the relevant party, directed to the named individuals given in the Quote (if any) and shall be: (i) delivered personally; (ii) sent by e-mail; or (iii) sent by pre-paid special delivery.
26.2 A notice is deemed to have been received:
26.2.1 if delivered personally, at the time of delivery;
26.2.2 in the case of e-mail, at the time of transmission, provided a delivery notification is obtained evidencing delivery of the email; and
26.2.3 in the case of special delivery, the date on which delivery takes place, as evidenced by the acknowledgement from the Royal Mail, provided that, if receipt is not within Normal Business Hours on a Business Day, delivery shall be deemed to be when business next starts in the place of receipt.
27 DISPUTE RESOLUTION
27.1 If a dispute arises out of or in connection with these Conditions or the performance, validity or enforceability of a Contract (a “Dispute”) then the parties shall follow the procedure set out in this clause 27:
27.1.1 either party shall give to the other written notice of the Dispute, setting out its nature and full particulars (a “Dispute Notice”), together with relevant supporting documents. On service of the Dispute Notice, the parties shall attempt in good faith to resolve the Dispute; and
27.1.2 if the parties are for any reason unable to resolve the Dispute within 20 Business Days from service of the Dispute Notice, the parties will attempt to settle it by mediation in accordance with the CEDR Model Mediation Procedure. Unless otherwise agreed between the parties, the mediator shall be nominated by CEDR Solve. To initiate the mediation, a party must serve notice in writing (an “ADR Notice”) to the other party to the Dispute, requesting mediation. A copy of the ADR Notice should be sent to CEDR Solve. The mediation will start not later than 10 Business Days after the date of the ADR Notice.
27.2 If the Dispute is not resolved within 1 month of the mediator’s appointment, then either party may commence Court proceedings, but provided that nothing in this clause 27.2 shall prevent either party from either continuing with any means of alternative dispute resolution as may be agreed in writing from time to time, or seeking an injunction or other interim relief at any time if it reasonably believes such action is necessary to prevent irreparable damage.
28.1 A natural or legal person who is not a party to the Contract shall have no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of its terms. This clause does not alter any right or remedy of any person which exists or is available otherwise than pursuant to that Act.
28.2.1 Except as set out in these Conditions, any variation, including the introduction of any additional terms and conditions, to the Contract shall only be binding when agreed in writing and signed by OD.
28.2.2 A waiver of any right is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or Default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy. Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
28.3 The construction, validity and performance of each Contract shall be governed by the laws of England and Wales and the parties submit to the exclusive jurisdiction of the English Courts.
28.4 No delay or omission by the Customer in exercising any of its rights or remedies under a Contract or under any Applicable Law on any occasion shall be deemed a waiver of, or bar to, the exercise of such right or remedy or any other right or remedy upon any other occasion.
28.5 In the event that any provision of a Contract shall be void or unenforceable by reason of any provision of Applicable Law, it shall be deleted and the remaining provisions hereof shall continue in full force and effect and, if necessary, be so amended as shall be necessary to give effect to the original intent of the Contract so far as possible.
28.6 Nothing in a Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between the parties, nor constitute any party the agent of the other party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
28.7 Each party undertakes to the other that it will not, and will procure that its employees will not, in the course of performing its obligations under a Contract, knowingly engage in any activity which would constitute a breach of the Bribery Act 2010 and that it has in place a compliance programme designed to ensure compliance with the terms of the Bribery Act 2010 and has and will maintain in place, adequate procedures designed to prevent any of its third party contractors or sub-contractors from undertaking any conduct that would give rise to an offence under the Bribery Act 2010.