Origin Secured Ltd
END USER LICENCE AGREEMENT
| Subscription Type | Enterprise Licence |
| Access Required | BCP Admin Portal White-Label (Enterprise Only) |
| Admin Users | Unlimited |
| Authorisation for Admin Users | TBC |
| Signature Cost | N/A |
| Signature Allowance | N/A |
| Free Signatures | N/A |
| Support Services | Mon - Fri | 09:00:18:00 |
| Professional Services | White-Label with supplier branding (Enterprise Only) |
| Charges | Subscription Fees £500 per month. Any Additional Subscription purchased during the Term will be charged in accordance with our Rate Card available at https://originsecured.com/pricing Support Services Fees N/A Additional/Enhanced Support Services Fees N/A Signature Cost N/A Signature Allowance N/A Subscription payment terms monthly in [advance/arrears] commencing on the Commencement Date Professional Services 1. White-Label with supplier branding (Enterprise Only) 2. Data Import of existing Suppliers (Enterprise Only) Professional Services payment terms 15 days |
| DPA | originsecured.com/dpa |
| Operating Environment | AWS |
| Documentation | User Manuals are available at https://originsecured.com/manuals Third Party EULA are available at https://originsecured.com/thirdpartyeula |
1
Definitions and Interpretation
1.1
In this EULA:
1.1.1
“Additional Signature Allowance” has the meaning given in clause 5.6;
1.1.2
“Additional Subscription” has the meaning given in clause 5.6;
1.1.3
“API” means OS’ or its licensors’ application programming interface, which is to be used as an interface between the OS Platform and other platforms, and includes the documents (in whatever media) that accompany the API;
1.1.4
“Authorised Users” means those named and identified representatives, employees, independent contractors and subcontractors of the Customer who are authorised by the Customer to access the OS Platform and use the Services and the Documentation. For the avoidance of doubt, if there are limitations on the number of User Subscriptions purchased by the Customer, such limitations will be detailed in the Order;
1.1.5
“Business Day” means a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business;
1.1.6
“Business Hours” means the period from 9.00 am to 5.30 pm UK time on any Business Day;
1.1.7
“Contract Year” means each consecutive period of 12 months commencing from the Commencement Date;
1.1.8
“Charges” means the Subscription Fees and charges for any additional services, including Support Services fees, cost and other charges, as set out in the Order and payable by the Customer in accordance with clause 8;
1.1.9
“Commencement Date” means the date this EULA commences following execution of the Order by both parties’ authorised representatives;
1.1.10
“Confidential Information” means any and all information that is proprietary and/or confidential in nature and is clearly labelled as such or would, by its nature, be considered by a reasonable business person to be confidential, in whatever form or medium, disclosed by the party to the other party (including, in the case of OS’ information any and all information and materials concerning and/or relating to the OS IPR);
1.1.11
“Customer Data” means the data imported (including import of any ongoing integration data), inputted, uploaded or provided by the Customer, Authorised Users, or OS on the Customer’s or its Authorised Users behalf, including data processed under the DPA, for the purpose of using the OS Platform or facilitating the Customer’s and its Authorised Users access and use of the OS Platform;
1.1.12
“Data Protection Legislation” means:
(a)
to the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom which relates to the protection of personal data;
(b)
to the extent the EU GDPR applies, the law of the European Union or any member state of the European Union to which the Customer or OS is subject, which relates to the protection of personal data.
1.1.13
“Documentation” means the documents, including user manuals, Operating Environment requirements, the API documents, document setting out the relevant Third Party Materials and any other documents made available as part of the Subscription to the Customer by OS online (including via the OS Platform) or otherwise in writing notified by OS to the Customer from time to time;
1.1.14
“DPA” has the meaning given in clause 6.2;
1.1.15
“Endorsement” means an authorised signature, or a public or private declaration of support on the OS Platform and/or across all third party platforms that OS Platform integrate with from one or many other Origin Handles confirming the Assertion made, and “Endorse” shall be construed accordingly;
1.1.16
“EU GDPR” means the General Data Protection Regulation ((EU) 2016/679);
1.1.17
“EULA” has the meaning given in clause 2.1;
1.1.18
“Initial Term” has the meaning given in clause 12.1;
1.1.19
“Intellectual Property Rights” or “IPR” means:
(a)
patents, any extensions of the exclusivity granted in connection with patents, petty patents, utility models, registered designs, plant variety rights, applications for any of the foregoing (including, but not limited to, continuations, continuations-in-part and divisional applications), the right to apply for and be granted any of the foregoing, rights in inventions,
(b)
copyrights, design rights, semiconductor topography rights, moral rights, publication rights, database rights,
(c)
trademarks and service marks, applications for any of the foregoing, the right to apply for any of the foregoing, rights in trade names, business names, brand names, get-up, logos, domain names and URLs,
(d)
rights in know-how, trade secrets and confidential information, data exclusivity rights, and
(e)
all other forms of intellectual property right having equivalent or similar effect to any of the foregoing which may exist anywhere in the world;
1.1.20
“Losses” means all incurred losses, liabilities, damages, costs, claims, demands, actions, proceedings, orders and expenses (including legal fees on a solicitor/client basis) and disbursements and costs of investigation, litigation, settlement, judgement interest and penalties;
1.1.21
“Maintenance Release” has the meaning given in clause 15.2;
1.1.22
“Operating Environment” means minimum requirements in respect of hardware, operating system, middleware, database products and other software for access and use of the OS Platform, as set out at https://originsecured.com/infrastructure, and as amended from time to time by OS upon posting new Operating Environment requirements at such webpage address;
1.1.23
“Order” means a written order incorporated by reference into the Terms and to which the Terms are appended, signed by both parties’ authorised representatives, detailing:
(a)
the Services to be provided by OS;
(b)
the Subscription Fees and any other Charges due and payable by the Customer; and
(c)
Documentation to be provided as part of the Subscription under the Terms;
1.1.24
“OS IPR” has the meaning given in clause 9.1;
1.1.25
“OS Materials” means data, information, content, images, photographs, illustrations, icons, texts, video, audio, written materials, software (including source code or object code) or other content, information, materials or data made available via the OS Platform or the API;
1.1.26
“OS Platform” means the software application and platform developed and operated by OS at, and or https://your-app.originsecured.app/login - (Enterprise), which allows integrations to be made between OS Platform and other application and platforms, comprising OS’ relevant services, mobile services and any other features, content, or applications offered or operated from time to time by OS whether accessed via the internet, mobile device or other electronic device;
1.1.27
“Renewal Period” the period described in clause 12.1;
1.1.28
“Schedules” means the schedules to the Terms;
1.1.29
“Services” means: (a) access to and use of the OS Platform; (b) the Support Services; and (c) any additional services agreed and made available as part of the Subscription from time to time in accordance with the Terms, as more particularly described in the Schedules;
1.1.30
“Subscription” means the type of subscription purchased by the Customer under the Order for access and use of the OS Platform pursuant to the Terms;
1.1.31
“Subscription Fees” means the subscription fees set out in the Order and payable by the Customer to OS for the access and use of the OS Platform and/or use of the API and the Documentation in accordance with the Terms, including import of the Customer Data into the OS Platform in accordance with a separate agreement for professional services;
1.1.32
“Support Services” has the meaning given in Schedule 2 (Support Services);
1.1.33
“Term” has the meaning given in clause 12.1;
1.1.34
“Terms” have the meaning given in clause 2.1.1;
1.1.35
“Third Party Materials” means the components of the OS Platform and the API to which third party licence terms apply, provided to the Customer on an “as is” and “as available” basis, as listed at https://api.originsecured.com/swagger/v1
1.1.36
“UK GDPR” has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the DPA 2018;
1.1.37
“User Subscription” means, if applicable, an individual user subscription purchased by the Customer from time to time for use by an Authorised User; and
1.1.38
“Virus” means any thing or device (including any software, code, file or program) which may: (a)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; (b) prevent, impair or otherwise adversely affect access to or the operation of any program or data, including the reliability of any program or data (whether by rearranging, altering or erasing the program or data in whole or part or otherwise); or (c) adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
1.2
In this EULA:
1.2.1
references to a party shall be construed as the Customer or OS and parties shall be construed as the Customer and OS taken together;
1.2.2
clause, Schedule and paragraph headings shall not affect the interpretation of this EULA;
1.2.3
a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
1.2.4
the Schedules, Order and Documentation form part of this EULA and shall have effect as if set out in full in the body of this EULA
1.2.5
unless the context otherwise requires, any reference to this EULA includes the Schedules, Order and Documentation;
1.2.6
unless the context otherwise requires, words in the singular shall include the plural and vice versa;
1.2.7
unless the context otherwise requires, a reference to one gender shall include a reference to the other genders;
1.2.8
a reference to legislation or a legislative provision is a reference to it as amended, extended or re-enacted from time to time;
1.2.9
a reference to writing or written includes email;
1.2.10
any obligation in this EULA on a person not to do something includes an obligation not to agree or allow that thing to be done;
1.2.11
any words following the terms including, include, in particular, for example or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms.
2
Agreement
2.1
This agreement is comprised of:
2.1.1
these general terms and conditions set out in the body of this EULA (the “Terms”);
2.1.2
the Order;
2.1.3
the Schedules;
2.1.4
the DPA; and
2.1.5
and Documentation made available as part of the Subscription as referenced in the Terms, Schedules and the Order,
1.
as amended from time to time in accordance with clause 17.1 (the “EULA”).
2.2
Conflict. In the event of any conflict or inconsistency between different parts of this EULA, the following descending order of priority applies:
2.2.1
the DPA;
2.2.2
the Order;
2.2.3
the Terms;
2.2.4
the Schedules; and
2.2.5
Documentation made available as part of the Subscription as referenced in the Terms, Schedules and the Order.
2.3
Any terms and conditions of the Customer included or referred to in the Order, or any proposed variation to this EULA set out in the Order or any other document, or instrument issued by Customer shall not in any way modify or add terms or conditions to this EULA, and any such modified or additional terms or conditions are hereby expressly excluded from the parties’ agreement and understanding in this EULA and shall not be binding on OS. The Terms apply to this EULA to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
2.4
Marketing and other promotional material relating to OS Platform (or any of its components) are illustrative only and do not form part of this EULA. The Customer agrees that, in submitting an Order, it has not relied on any representations or statements by OS other than those expressly set out in this EULA.
2.5
This EULA applies to all use of the solution known as OS Platform.
2.6
This EULA is legally binding contract between:
(a)
“ORIGIN SECURED LTD” a company incorporated and registered in England and Wales under registration number 14552883 and whose registered office is at Arena Business Centre - Berkeley St. Wharfedale Road, Winnersh, Wokingham, England, RG41 5RD (“OS”); and
(b)
the corporate entity (the “Customer”) that has, through its authorised representatives, subscribed to use the OS Platform in the Order.
2.7
“Mutual Warranties”. On entering into this EULA, each party warrants and represents to the other that:
2.7.1
it has full capacity and authority to enter into and to perform this EULA; and
2.7.2
the Order has been executed by its duly authorised representative.
3
Licence
3.1
Subject to the Customer purchasing a Subscription in accordance with the terms of this EULA and the restrictions set out in this clause 5, OS hereby grants to the Customer a non-exclusive, revocable and non-transferable right and licence, without the right to grant sublicenses (without OS’ consent), to:
3.1.1
permit the Authorised Users to access the OS Platform and to use the Services and the Documentation during the Term solely for the Customer's internal business operations; and
3.1.2
use the API for Business Compliance Platform.
3.2
The grant of the licences in clause 3.1 shall continue until terminated in accordance with terms of this EULA.
4
OS Obligations
4.1
OS shall perform the Services and make the OS Platform available substantially in accordance with the Documentation and with reasonable skill and care.
4.2
OS shall use commercially reasonable endeavours to make:
4.2.1
the OS Platform available 99,9% of the time (measured each calendar month), except during scheduled maintenance or downtime caused by Force Majeure or during other emergency maintenance;
4.2.2
the Support Services available in accordance with the service levels set out in Schedule 2 (Support Services).
4.3
OS’ obligations at clause 4.1 and clause 4.2 shall not apply to the extent of any non-conformance which is caused by:
4.3.1
use of any Services contrary to OS’ instructions;
4.3.2
use of any Services with other software or services or on equipment with which it is incompatible and/or contrary to recommendations provided in the Operating Environment requirements;
4.3.3
Customer’s failure to maintain currency of the Operating Environment in accordance with clause 15;
4.3.4
any act by any third party (including hacking or the introduction of any Virus;
4.3.5
any modification or alteration of the Services by any party other than OS or OS' duly authorised contractors or agents; or
4.3.6
any breach of this EULA by the Customer (or by any Authorised User).
4.4
Subject to clause 4.3, if any of the Services do not conform with the terms of clause 4.1 or clause 4.2, OS will, at its own discretion and expense:
(a)
use reasonable commercial endeavours to correct any such non-conformance promptly; or
(b)
terminate the relevant Services and refund to the Customer, on a pro-rata basis any amounts paid by the Customer for Services it has not received to reflect the period of the time between the date the Customer was unable to use the relevant Services as a direct result of such defect and the remaining days in the month concerned.
4.5
The Customer acknowledges and agrees that correction set out in clause 4.4 constitutes the Customer's sole and exclusive remedy for any breach of the undertaking set out in clause 4.1 and clause 4.2.
4.6
OS has sole discretion and control over, and may modify at any time and without notice to the Customer, the functionality, features, performance, configuration, appearance and content of the OS Platform. However, if:
4.6.1
any such modification is likely to materially adversely affect the use of the relevant Subscription by OS’ customers generally; or
4.6.2
the required Subscription technical specification (as set out in Schedule 1 and Documentation) changes as a result of any such modification,
2.
OS will notify the Customer of such modification.
4.7
Subject to clause 11.1, and except to the extent expressly set out in this clause 4 OS gives no warranties, representations or other commitments to the Customer (or its Authorised Users) as to the functionality, performance, availability, transmission speed, content, latency and/or accuracy of the OS Platform.
4.8
OS does not warrant or represent that use of the OS Platform will be uninterrupted or error-free, or that information obtained by the Customer (or its Authorised Users) through the OS Platform will meet the Customer’s requirements, or that such information is up to date.
4.9
OS shall have no liability for any delays, delivery failures, or any other Losses resulting from the transfer of data over communications networks and facilities, including the internet and the API, and the Customer acknowledges that use of the OS Platform may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
4.10
On a daily basis, OS shall perform backups of all Customer Data provided to OS in relation to the OS Platform. In the event of any loss or damage to any Customer Data submitted or imported to the OS Platform by or on behalf of the Customer or its Authorised Users (including by OS), the Customer's sole and exclusive remedy shall be for OS to use its reasonable commercial endeavours to restore the lost or damaged Customer Data from the last available back-up of such Customer Data maintained by or on behalf of OS.
4.11
In the event that the Customer requires OS to perform any additional services, then the fees payable in consideration of any such additional services shall be set out in an Order, in accordance with OS’ then applicable fees for such services.
5
Customer Obligations
5.1
The Customer shall:
5.1.1
at all times comply with the provisions of this EULA, Documentation (including the relevant Operating Environment requirements);
5.1.2
procure that each Authorised User is aware of, and complies with, the obligations and restrictions imposed on the Customer under this EULA, including all obligations and restrictions relating to OS’ Confidential Information;
5.1.3
be liable for breach of this EULA caused or contributed to by any act and/or omissions of any Authorised User as if they were its own; and
5.1.4
ensure that: (a) each password is used only by the Authorised User and (b) each Authorised User shall keep: (i) secure their account username and password secure; and (ii) their password confidential.
5.2
The Customer shall be solely responsible for procuring and maintaining its network connection, internet connection and telecommunications links, and all problems, conditions, delays, delivery failures and all other Losses arising from or relating to the Customer's network connections or telecommunications links or caused by the internet.
5.3
The Customer shall not:
5.3.1
permit any User Subscription to be used by more than one individual Authorised User unless such User Subscription has been reassigned in its entirety to another individual Authorised User, in which case the Customer shall procure that the previous Authorised User shall cease accessing the OS Platform;
5.3.2
permit anyone to access the OS Platform who is not an Authorised User;
5.3.3
access, store, distribute or transmit any software, code, file or programme which may prevent, impair or otherwise adversely affect the operation of the OS Platform (including without limitation any Viruses) or submit any material to the OS Platform that:
(a)
is harmful, discriminatory, threatening, defamatory, obscene, infringing, harassing, or offensive;
(b)
is submitted unlawfully or facilitates illegal activity;
(c)
is incomplete, inaccurate, or intended to deceive; or
(d)
could cause damage or injury to any person or property.
5.3.4
have any right to copy, adapt, reverse engineer, de-compile, disassemble, modify, adapt or make error corrections to the OS Platform except, with respect to de-compilation of the OS Platform, to the extent such de-compilation is necessary for the exclusive purpose of obtaining the information necessary to create an independent program which can be operated with the OS Platform or with another program and the Customer’s right to de-compile the OS Platform shall not apply if:
(a)
the Customer is in breach of the de-compilation conditions described in section 50B of the Copyright, Designs and Patents Act 1988; or
(b)
OS: (i) is prepared to carry out, and/or procure the carrying out of, such de-compilation in return for a reasonable fee; or (ii) has provided the information necessary to achieve such inter-operation without such de-compilation within a reasonable period, and the Customer shall request that OS carries out such action or provides such information (and shall meet the OS’ reasonable costs in providing that information) before undertaking any such de-compilation; and
5.3.5
attempt to circumvent, disable or otherwise interfere with any security related to features of the OS Platform (including the features that enforce limitation of use or prevent copying);
5.3.6
access the OS Platform in order to build a product or service which competes with the OS Platform or the business of OS; or
5.3.7
remove OS’ trademark, copyright notice or any other proprietary notice from the OS Platform;
5.4
The Customer shall prevent any unauthorised access to, or use of, the OS Platform and, in the event of any such unauthorised access or use, promptly notify OS.
5.5
OS reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer's (or any Authorised Users) access to the OS Platform or any material that breaches the provisions of this clause 5.
5.6
During the Term, the Customer may increase its signature allowance (“Additional Signature Allowance”) or increase the number of User Subscriptions count at any time (“Additional Subscription”). However, signature allowance and the number of User Subscriptions may only be reduced by notice in writing given at least ninety (90) days prior to the renewal date. For the avoidance of doubt, an User Subscription is required for each Authorised User in order for any Authorised User to access and use the OS Platform.
5.7
In respect of the API, the Customer shall:
5.7.1
comply with Documentation relating to the API and/or OS Platform;
5.7.2
keep Customer’s API key secure and shall remain responsible for any use of the API using Customer’s API key;
5.7.3
not (and shall procure that its Authorised Users shall not) use the API contrary to any restriction stated in this EULA, or otherwise in a way that is not expressly permitted by this EULA and Documentation; and
5.7.4
use the API in accordance with applicable laws.
5.8
The Customer shall not use the API:
5.8.1
in any way which: (i) causes or is intended to cause annoyance, inconvenience or needless anxiety: (ii) promotes discrimination or is likely to incite hatred or any other way that may cause offence; (iii) promotes any unlawful act;
5.8.2
for any unlawful purpose whatsoever, including fraud or terrorism;
5.8.3
in any way which is abusive, harmful, threatening or defamatory;
5.8.4
in any way that could be harmful to other customers’ and their authorised users’ or OS’ systems, the OS Platform or OS Materials (including uploading any material that contains any Viruses);
5.8.5
in any way which may infringe the Intellectual Property Rights of third parties;
5.9
The Customer shall not:
5.9.1
decode, reverse engineer, disassemble, decompile, translate, convert, observe, study or test the functioning of the API;
5.9.2
use, modify, adapt, correct errors in, or create derivative works from, the API;
5.9.3
assign, sub-license, lease, resell, rent, distribute or otherwise deal in or encumber the API;
5.9.4
except as strictly necessary for the Customer to integrate the API with the relevant Customer application in a manner (and for such purposes) that comply at all times with this EULA [and Documentation], copy or decompile the API and shall not observe, study or test the functioning of the API (or any part of it) but only so far as the same cannot be restricted by law;
5.9.5
infringe or copy OS’ Intellectual Property Rights.
5.9.6
undertake any text or data mining on the API or API data.
5.10
The Customer agrees that it shall not prompt other customers and/or their authorised users to provide to the Customer any passwords, usernames or other login details that they use to access the OS Platform.
6
Data Protection
6.1
Both Parties will comply with all applicable requirements of the Data Protection Legislation. This clause 6 is in addition to, and does not relieve, remove or replace, a party's obligations or rights under Data Protection Legislation.
6.2
The parties have determined that for the purposes of Data Protection Legislation OS shall be a processor in respect of any personal data processed by OS on the Customer’s behalf who is controller. Each Party will adhere to the provisions of OS’ data processing agreement (“DPA”) available at https://originsecured.com/dpa
7
Third Party Materials
7.1
The third party licence terms that apply to the Customer’s and its Authorised Users’ use of the Third Party Materials are listed at https://originsecured.com/thirdpartyeula and the Customer shall (and shall procure that its Authorised Users shall) comply with the terms and conditions (including any restrictions) contained in such third party licence terms.
8
Charges and payment
8.1
The Subscription Fee and any other Charges (including expenses) related to this EULA and expressly agreed between the parties in the Order shall be paid by the Customer at the rates and in the manner described in the Order and this clause 8.
8.2
The Subscription Fees and the relevant Charges are non-cancellable and non-refundable and shall be payable:
8.2.1
in pounds sterling; and
8.2.2
monthly in advance commencing on the Commencement Date.
8.3
The Charges are exclusive of VAT which shall be added to OS’ invoice(s) at the appropriate rate and payable by the Customer.
8.4
The Charges payable to OS under this EULA shall be paid to the bank account nominated in writing by OS.
8.5
Except for the first invoice which is payable on the Commencement Date, any other invoice shall be paid within 15 days of the date of such invoice. OS shall have the right to charge interest on overdue invoices at the rate of [4%] per year above the base rate of the Bank of England, calculated from the date when payment of the invoice becomes due for payment up to and including the date of actual payment (whether before or after judgment).
8.6
OS shall be entitled to increase the Subscription Fees and other Charges for any and all Services at any time by notice to the Customer provided that OS shall not be entitled to increase the Charges more than once every 12 months.
9
Intellectual Property Rights
9.1
The Customer acknowledges and agrees that OS and/or its licensors own all Intellectual Property Rights in:
9.1.1
the OS Platform (excluding the Customer Data);
9.1.2
the Documentation;
9.1.3
the API;
9.1.4
the OS Materials;
9.1.5
any other content, data, information or materials provided and/or made available as part of providing the Services; and
9.1.6
any/all adaptations, add-ons, modifications, updates, and/or enhancements to 9.1.1, 9.1.2, 9.1.3, 9.1.4, 9.1.5 and such materials (including at the request and/or suggestion of the Customer or an Authorised User),
3.
(the “OS IPR”).
9.2
OS may freely incorporate into the OS IPR any feedback and/or suggested improvements to the OS IPR given by the Customer or an Authorised User.
9.3
Except as expressly stated in this EULA, the Customer shall have no right or interest in the OS IPR.
9.4
The Customer and/or its licensors own all Intellectual Property Rights in and to all of the Customer Data and shall have sole responsibility for the legality, non-infringement, reliability, integrity, accuracy and quality of the Customer Data.
9.5
The Customer hereby grants to OS (and its representatives and sub-contractors) a non-exclusive, non-transferable right and licence to use, copy, import and other otherwise utilise the Customer Data to the extent necessary for OS (or its representative or sub-contractor as the case may be) to perform or provide the Services or to exercise or perform OS’ rights, remedies and obligations under this EULA.
9.6
The Customer acknowledges and agrees that the OS Platform comprises commercially valuable, proprietary assets and trade secrets of OS or its licensors, the design and development of which reflect the effort of skilled developers and the investment of considerable time and money by and/or on behalf of OS.
9.7
If (at any time): (a) through use of the OS Platform; (b) by operation of applicable laws; or (c) otherwise, the Customer comes to own Intellectual Property Rights in the OS IPR, the Customer shall (promptly on request of OS and without delay) assign (or procure the assignment of) such Intellectual Property Rights to OS, and to the extent permitted by applicable laws, waive (or procure the waiver of) all moral rights (and analogous rights) worldwide in connection with such OS IPR.
10
Confidentiality
10.1
The obligations contained in this clause 10 shall not apply to information that:
10.1.1
is or becomes publicly known other than through any act or omission of the receiving party;
10.1.2
was in the other party's lawful possession before the disclosure;
10.1.3
is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
10.1.4
is independently developed by the receiving party without use or reference to the other party’s Confidential Information.
10.2
Each party shall:
10.2.1
use commercially reasonable endeavours to hold the other party’s Confidential Information in confidence (including by using the same care and discretion to avoid disclosure, publication or dissemination as it uses to protect its own similar information); and
10.2.2
subject to clause 10.5, not disclose any Confidential Information in whole or in part to any third party or use the other's Confidential Information for any purpose other than to perform its obligations under this EULA.
10.3
The Customer may disclose OS’ Confidential Information to its Authorised Users on a need to know basis, provided that at all times, it is responsible for the Authorised User’ compliance with the confidentiality obligations set out in this clause 10.
10.4
OS may disclose the Customer’s Confidential Information:
10.4.1
to any employee, consultant, contractor, subcontractor, auditor, professional advisor or other person engaged by OS who have a need to know the Customer’s Confidential Information in connection with this EULA; or
10.4.2
for the purpose of the examination and certification of OS’ accounts.
10.5
A party shall ensure that the person to whom the other party’s Confidential Information is disclosed under this clause 10 is bound by written confidentiality obligations substantially similar to those set out in this EULA.
10.6
“Mandatory Disclosure”. A party may disclose Confidential Information to the extent required 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 the disclosure as possible.
10.7
Each party reserves all rights in its Confidential Information. No rights or obligations in respect of a party’s Confidential Information, other than those expressly stated in this EULA, are granted to the other party, or are to be implied from this EULA. The Customer acknowledges that details of the Services and the Documentation and the results of any performance tests of the OS Platform or the Services, constitute OS’ Confidential Information.
10.8
The Customer warrants and represents to OS that it has the right to disclose the Confidential Information and to authorise OS to use such Confidential Information in connection with the OS Platform.
1
Liability
11.1
Nothing in this EULA shall limit or exclude either party's liability to the other to a greater extent than is permitted under applicable law for Losses resulting from:
11.1.1
death or personal injury caused by negligence;
11.1.2
fraud or fraudulent misrepresentation; or
11.1.3
any matter in respect of which Losses may not be limited or excluded under applicable laws.
11.2
Nothing in this EULA shall limit or exclude Losses that are subject to the Customer’s liability to pay the Subscription Fees and other Charges.
11.3
Subject to clause 11.1, neither party shall be liable to the other (or any third party claiming under or through the other) under any and all causes of action (whether such causes of action arise in contract (including under any indemnity or warranty), in tort (including negligence or for breach of statutory duty) or otherwise) for Losses that comprise:
11.3.1
loss of profit or revenue (except for the Charges);
11.3.2
loss of anticipated savings;
11.3.3
loss of contract or business opportunity;
11.3.4
depletion of goodwill;
11.3.5
loss or corruption of Customer Data or information except as described in clause 4.10; or
11.3.6
any special, indirect or consequential loss,
4.
in each case, whether arising directly or indirectly under or in connection with this EULA and whether or not reasonably foreseeable, reasonably contemplatable, actually foreseen or actually contemplated by a party at the Commencement Date.
11.4
Subject to clauses 11.1, 11.2 and 11.3, each party’s total aggregate liability to the other (and to any third party claiming under or through the other) in each Contract Year and in respect of all causes of action (whether such causes of action arise in contract (including under any indemnity or warranty), in tort (including negligence or for breach of statutory duty) or otherwise) arising in that Contract Year (as determined at the date when the liability giving rise to the cause of action arose) shall not exceed the total Charges paid by the Customer to OS in respect of the Contract Year in question.
11.5
Except as expressly stated in this EULA:
11.5.1
the Customer assumes sole responsibility for results obtained from the use of the Services and Documentation by the Customer, and for conclusions drawn from such use. OS shall have no liability for any damage caused by errors or omissions in any Customer Data, information, instructions or scripts provided to OS by the Customer in connection with the Services, or any actions taken by OS at the Customer's direction; and
11.5.2
all warranties, conditions, representations, and terms (whether written or oral, express or implied by statute, common law, custom, trade usage, course of dealing or otherwise, including as to satisfactory quality, fitness for a particular purpose or use, accuracy, adequacy, completeness or timeliness) are hereby excluded to the fullest extent permitted by applicable law.
11.6
The parties agree that the provisions of this clause 11 are considered by them to be reasonable in all the circumstances, having taken into account section 11 and the guidelines in schedule 2 of the Unfair Contract Terms Act 1977 and the nature of the services described in this EULA and the Charges.
12
Term and Termination
12.1
Term. This EULA shall, unless terminated in accordance with the provisions of this clause 12, commence on the Commencement Date and shall continue for the period of 36 months (the “Initial Term”) and, thereafter, this EULA shall be automatically renewed for successive periods of 12 months (each a “Renewal Period”).
12.2
Termination for Convenience. Without affecting any other right or remedy available to it, either party may terminate this EULA in writing, at least 90 days before the end of the Initial Term or any Renewal Period, in which case this EULA shall terminate upon the expiry of the Initial Term or then applicable Renewal Period.
12.3
Termination for cause. Without affecting any other right or remedy available to it, either party may terminate this EULA with immediate effect by giving written notice to the other party if:
12.3.1
the other party commits a material breach of any other term of this EULA and (if such breach is remediable) fails to remedy that breach within a period of 15 days after being notified in writing to do so;
12.3.2
there is an insolvency related event:
(a)
the other party 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 within the meaning of section 123 of the Insolvency Act 1986;
(b)
the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(c)
the other party applies to court for, or obtains, a moratorium under Part A1 of the Insolvency Act 1986;
(d)
a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(e)
an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party (being a company, partnership or limited liability partnership);
(f)
the holder of a qualifying floating charge over the assets of that other party (being a company or limited liability partnership) has become entitled to appoint or has appointed an administrative receiver;
(g)
a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
(h)
a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party's assets and such attachment or process is not discharged within 14 days;
(i)
any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 12.3.3(a)to clause 12.3.3(h) (inclusive);
12.3.3
the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or
12.3.4
the other party’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of this agreement is in jeopardy.
12.4
Without limiting OS’ rights to terminate under clause 12.3, OS may terminate this EULA if the Customer (or any of its Authorised Users):
12.4.1
commits any breach of any one or more of the following clauses: 5, 7, 9 and/or 10; and/or
12.4.2
fails to pay any amount due under this EULA on the due date for payment and remains in default not less than 10 days after being notified in writing to make such payment.
13
Consequences of Termination
13.1
On termination of this EULA for any reason:
13.1.1
all licences granted under this EULA shall immediately terminate and the Customer shall immediately cease all use of the Services and the Documentation;
13.1.2
notwithstanding any other provision to the contrary, on termination of this EULA (howsoever arising), all payments payable to OS, being those that have accrued prior to termination as well as all sums remaining unpaid for the Services ordered under this EULA plus related taxes and expenses (if any), shall remain due and shall become immediately due and payable by the Customer;
13.1.3
each party shall destroy or return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party;
13.1.4
OS may destroy or otherwise dispose of any of the Customer Data in its possession unless OS receives, no later than 10 days after the effective date of the termination of this EULA, a written request for the delivery to the Customer of the then most recent backup of the Customer Data. OS shall use reasonable commercial endeavours to deliver the backup to the Customer within 30 days of its receipt of such a written request, provided that the Customer has, at that time, paid all Subscription Fees and other Charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer shall pay all reasonable expenses incurred by OS in returning or disposing of Customer Data.
13.2
If Customer is required by any law, regulation, or government or regulatory body to retain any documents that it would otherwise be required to return or destroy under clause 13.1.3, it shall notify OS in writing of that retention, giving details of the documents or materials that it must retain.
13.3
“Accrued Rights”. any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim Losses in respect of any breach of the EULA which existed at or before the date of termination shall not be affected or prejudiced.
14
Hyperlinks and third party platforms
14.1
The OS Platform may integrate or contain hyperlinks or references to third party platforms and websites. Any such integration, hyperlinks or references are provided for Customers (and its Authorised Users) convenience only.
14.2
OS have no control over third party platforms or websites and accept no legal responsibility for any content, material or information contained in them and/or their availability. The display of any hyperlink and reference to any third party platform or website does not mean that OS endorses that third party’s platform, website, products or services. Customer’s (and its Authorised Users’) use of a third party platform or website may be governed by the terms and conditions of that third-party platform or website and is at Customer’s (and its Authorised Users’) own risk.
15
Operational Environment
15.1
The Customer is responsible for procuring and maintaining the currency of the Operational Environment.
15.2
Maintenance releases which correct faults, adds functionality or otherwise amends or upgrades the OS Platform (the “Maintenance Release”) and new versions of the OS Platform may require enhancements to the Operational Environment. OS may advise the Customer if such enhancements are required. The Customer is responsible for procuring and implementing such enhancements. The parties may agree that OS will provide assistance with the implementation of such enhancement as professional services under a separate contract.
16
Force Majeure
16.1
Neither party shall be in breach of this EULA or otherwise liable for any failure or delay in the performance of its obligations (except for the payment of the Charges) if such delay or failure results from events, circumstances or causes beyond its reasonable control. The time for performance of such obligations shall be extended accordingly. If the period of delay or non-performance continues for 2 months, the party not affected may terminate this EULA by giving 15 days' written notice to the affected party.
17
General
17.1
“Variation”. No variation of this EULA shall be effective unless it is in writing and signed by the parties’ authorised representatives.
17.2
“Waiver”
17.2.1
A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
17.2.2
A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.
17.3
“Severance”
17.3.1
If any provision or part-provision of this EULA is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this EULA.
17.3.2
If any provision or part-provision of this EULA is deemed deleted under clause 17.3.1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
17.4
“Entire Agreement”
17.4.1
This EULA constitutes the entire agreement between the parties and supersedes and extinguishes all previous and contemporaneous agreements, promises, assurances and understandings between them, whether written or oral, relating to its subject matter.
17.4.2
Each party acknowledges that in entering into this EULA it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this EULA.
17.4.3
Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this EULA.
17.5
Notices
17.5.1
Any notice or other communication given to a party under or in connection with this EULA shall be in writing and shall be delivered by: (a) hand or pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or (b) except with respect to the service of legal proceedings, email to the addresses referred to in clause 17.5.2(c).
17.5.2
Any notice or communication shall be deemed to have been received:
(a)
if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
(b)
if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; or
(c)
if sent by email to:
1.
“OS”: [email protected]; or
2.
“[The Customer]”
3.
from an authorised representative of sufficient authority to give the notice, upon the generation of a receipt notice by the recipient's server or, if such notice is not generated, upon delivery to the recipient's server.
17.6
“Assignment”. The Customer shall not assign any of its rights under this EULA without the prior written consent of OS, such consent not to be unreasonably withheld or delayed.
17.7
“Third Party Rights”. This EULA does not confer any rights on any person or party (other than the parties to this EULA) pursuant to the Contracts (Rights of Third Parties) Act 1999.
17.8
“No Partnership”. Nothing in this EULA or through use of the OS Platform is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute any party the agent of the other party, nor authorise a party to make or enter into any commitments for or on behalf of the other party.
17.9
“Governing Law & Jurisdiction”. This EULA and any dispute or claim arising out of or in connection with it (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this EULA (including non-contractual disputes or claims).
1
Introduction
1.1
Enterprise customers that require a white-label version of the BCP will use this schedule to create and agree a final Scope of Works. Origin Secured will provide the customer with the white-label platform in accordance with this schedule.
2
Definitions. In this Schedule 1 and where used elsewhere in this EULA:
2.1
“Assertion” means the action of a Origin Handle claiming knowledge and or authority of another Origin Hande and or group of Origin handles that is yet to be endorsed;
2.2
“Origin Handle” means a unique, overarching digital profile identifier of each Authorised User, that controls and is linked to any and all Aliases of that Authorised User;
1
Support Services
1.1
During the Term, OS shall perform the services described in this Schedule 2 (the “Support Services”) during the Support Hours (as defined below) in accordance with the service levels described in paragraph 4 (the “Service Levels”).
1.2
In this Schedule 2, “Support Hours” are the same as Business Hours.
1.3
As part of the Support Services, OS shall:
1.3.1
provide help desk support (the “OS Helpdesk”) by means of:
1.4
use commercially reasonable efforts to correct all faults notified to OS by the Customer; and
1.5
provide technical support for the OS Platform in accordance with the Service Levels.
1.6
For the purposes of this Schedule 2, “Out-of scope Services” shall mean any services provided by OS in connection with any apparent problem regarding the OS Platform reasonably determined by OS not to have been caused by a fault, but rather by a Customer (or its Authorised Users) cause (including, without limitation, any improper use, use contrary to the Operating Environment requirements, Customer’s failure to maintain the currency of the Operating Environment, use of any unsupported versions of the OS Platform or the relevant software, misuse or unauthorised alteration of the OS Platform by the Customer) or a cause outside OS's control (including any investigational work resulting in such a determination).
1.7
The Customer acknowledges that OS is not obliged to provide Out-of-scope Services.
2
Support Fees
2.1
The support services fees in connection with the provision of Support Services shall be set out in the Order.
2.2
The provision of Out-of scope Services shall be charged for at the applicable time and materials rates provided by OS upon request.
3
Submitting Support Request and Access
3.1
The Customer may request Support Services by way of a support request containing the information described under this paragraph 3.
3.2
Each support request shall include:
3.2.1
a description of the problem;
3.2.2
screen shots;
3.2.3
details of the device the incident is happening on;
3.2.4
any version information for the device, OS, browser and/or application; and
3.2.5
the start time of the incident.
3.3
In addition to information required under paragraph 3.2, the Customer shall provide OS with:
3.3.1
prompt notice of any faults; and
3.3.2
such output and other data, documents, information, assistance and (subject to compliance with all Customer's security and encryption requirements notified to OS in writing) remote access to the Customer’s system, as are reasonably necessary to assist OS to reproduce operating conditions similar to those present when the Customer detected the relevant fault and to respond to the relevant support request.
3.4
All Support Services shall be provided from OS’ office unless agreed otherwise.
3.5
The Customer acknowledges that, to properly assess and resolve support requests, it may be necessary to permit OS direct access at the Customer’s premises and to its system, files, equipment and personnel.
3.6
The Customer shall provide such access promptly, provided that OS complies with all the Customer's security requirements and other policies and procedures relating to contractors entering and working on the Customer’s premises notified to OS in advance in writing.
4
Service Levels
4.1
OS shall:
4.1.1
prioritise all support requests based on its reasonable assessment of the severity level of the problem reported; and
4.1.2
respond to all support requests in accordance with the responses and response times specified in the table set out below:
| Severity level | Definition | Response time | Target Resolution time |
|---|---|---|---|
| 1 | Business Critical Failures: An error in, or failure of, the OS Platform that: (a) materially impacts the operations of the Customer's business or marketability of its service or product; (b) prevents necessary work from being done; or (c) disables major functions of the OS Platform from being performed. | 15 minutes | our support staff will commence work on them within 1 hour and provide target resolution time |
| 2 | 1 hour | 4 hours | |
| 3 | 1 hour | 8 hours |
4.2
The parties may, on a case-by-case basis, agree in writing to a reasonable extension of the service level Response times.
4.3
OS shall give the Customer regular updates of the nature and status of its efforts to correct any fault.
