The Ometria Service is provided by Ometria Ltd (“Ometria”), a company incorporated and registered in England and Wales under company number 08372083 whose registered office is at Acre House, 11/15 William Road, London, NW1 3ER.
2.1 In the Terms of Service, save where the context requires otherwise, the following words and expressions have the following meaning:
2.1.1 “Account” means the Client’s account(s) on the Ometria Service;
2.1.2 ““Additional Block” means additional blocks of Digital Messages, as set out in the Order Form, charged by Ometria in the event that the Client has used its Messaging Block before the end of a Year;
2.1.3 “Agreement” means the agreement between the Client and Ometria comprising the Order Form, Data Processing Addendum, the Acceptable Use Policy, Support Services Agreement and these Terms of Service for the provision of the Ometria Service and, if applicable, the Integration Services and/or the Consultancy Services;
2.1.4 “Applicable Laws” means any applicable
(a) statute, regulation, determination, by-law, declaration, ministerial direction or other subordinate legislation;
(b) common law and laws of equity;
(c) binding court order, judgment or decree; or
(d) direction, policy, rule or order that is binding on a party and that is made or given by any regulatory body.
2.1.5 “API” means Ometria’s application process interface permitting the Client to upload Client Data to the Ometria Service;
2.1.6 “Automated Messaging” means the sending of an automated Digital Message to a customer in response to the actions of a customer as permitted by the functionality of the Ometria Service. “Automated Messages” shall be construed accordingly;
2.1.7 “CCPA” means the California Consumer Privacy Act of 2018 Cal. Civil Code § 1798.100 et sequentes as amended (including without limitation by the California Privacy Rights Act (“CPRA”) as of CPRA’s effective date of January 1, 2023) and all regulations implemented thereunder, as such may be amended from time to time;
2.1.8 “Client” means the person identified in the Order Form;
2.1.9 “Client Data” means the content and data transferred to any Ometria Equipment as a result of the Code or the API;
2.1.10 “Client’s Service” means the web or app based service operated by the Client;
2.1.12 “Commencement Date” means the date from which the Client will receive the Ometria Service, and if applicable the Integration Services, as set out in the Order Form;
2.1.13 “Confidential Information” means information which is identified as confidential or proprietary by either party or by the nature of which is clearly confidential or proprietary;
2.1.14 “Consultancy Services” means the consultancy services to be provided by Ometria in relation to the Client’s business as specified in the Order Form or as agreed between the parties in writing from time to time;
2.1.15 “Data Email Address” means [email protected];
2.1.16 “Data Processing Addendum” means the data processing addendum at https://ometria.com/data-processing-addendum;
2.1.17 “Data Processing Fee” means the data processing fee payable by the Client as set out in the Order Form or determined in accordance with clause 12.2.2;
2.1.18 “Digital Message” means an outbound digital message sent to a customer by the Client using the Ometria Service;
2.1.19 “Extended Term” means the period of time set out in the Order Form that the Agreement will automatically extend for, in accordance with clause 3.2, following the end of the Initial Term or any Extended Term;
2.1.20 “Fees” means the amounts set out in the Order Form in respect of the Licence Fee, Messaging Block Fee, Data Processing Fee, fees for each Additional Block and/or such amount that is payable pursuant to this Agreement or that the parties may agree in writing from time to time, for the provision of the Ometria Service and, if applicable, the Integration Services and the Consultancy Services;
2.1.21 “GDPR” means the General Data Protection Regulation ((EU) 2016/679);
2.1.22 “Good Industry Practice” means the exercise of that degree of skill, diligence, prudence and foresight which would reasonably and ordinarily be expected to be exercised by a skilled and experienced operator engaged in the same or a similar type of undertaking under the same or similar circumstances and conditions, service level agreements and contractual terms;
2.1.23 “Increased Data Processing Percentage” means the percentage by which the number of Twelve Month Active Customers at the end of each Year is greater than the number of Twelve Month Active Customers at the beginning of the Year;
2.1.24 “Initial Term” means the initial term of the Agreement as set out in the Order Form;
2.1.25 “Integration Services” means the services described in the Order Form relating to the integration of the Ometria Service with the Client’s web pages or mobile application;
2.1.26 “Licence Fee” means the licence fee, as set out in the Order Form, payable by the Client;
2.1.27 “Mass Messaging” means the sending of the same Digital Message by the Client at the same time to all of its customers or to a significant subset of its customers. “Mass Messages” shall be construed accordingly;
2.1.28 “Messaging Block Fee” means the fee, as set out in the Order Form, payable by the Client to Ometria in consideration for sending the amount of Digital Messages stated as the Messaging Block in the Order Form;
2.1.29 “Ometria’s Equipment” means hardware whether owned or leased by Ometria that hosts the Ometria Service;
2.1.30 “Ometria Service” means the Code, the API, the Mass Messaging and Automated Messaging services, and any analytics, marketing analytics and metrics software product Ometria makes available as a service through the Website;
2.1.31 “Order Form” means the order form signed (whether electronically or otherwise) which amongst other things, identifies the Client and sets out the Fees, if applicable;
2.1.32 “Personal Data” has the meaning in the GDPR where the Client’s customer is a natural person within the EU and has the meaning in the Data Protection Act 2018 where the Client’s customer is a natural person within the UK;
2.1.33 “Personal Information” means information that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular individual or household, that may be Client Data that includes, but is not limited to, the data elements listed in the CCPA, Cal. Civil Code § 1798.140(o)(1)(A)-(K), if any such data element identifies, relates to, describes, is capable of being associated with, or could be reasonably linked, directly or indirectly, with a particular individual or household;
2.1.34 “Security Policies” means, collectively, written policies relating to Ometria’s Information Management System that meet the requirements of ISO 27001:2017 including acceptable use policy, access control policy, back-up policy, BC & DR plan, engineering change management process, engineering operating and incident procedures, information security policy, infrastructure software update and patch process, procurement policy, secure system engineering principles;
2.1.35 “Support Services Agreement” and “SLA” means the support services commitments provided by Ometria to the Client;
2.1.36 “Terms of Service” means these terms and conditions of service as amended from time to time;
2.1.37 “Term” means the period of time made up the Initial Term plus any Extended Term;
2.1.38 “Third Party Sites” has the meaning ascribed to it in clause 5.11;
2.1.39 “Twelve Month Active Customer” means any customer of the Client who has placed an order in the previous twelve (12) months via any of the Client’s websites, apps or retail stores that make, or will make, use of the Ometria Service;
2.1.40 “User” means any person authorised by the Client to access the Ometria Service on behalf of the Client;
2.1.41 “Virus” means any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by rearranging, 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;
2.1.42 “VAT” means value added tax or any equivalent tax chargeable in the United Kingdom; and
2.1.43 “Website” means www.ometria.com; and
2.1.44 “Year” means any period of twelve (12) consecutive months from the Commencement Date, unless specified otherwise in the Order Form.
2.2 Where the term “reasonable efforts” is used, having regard to the conduct of a party, such term means the efforts that a reasonable person in the position of that party would use to engage in that conduct competently and promptly.
3.1 The Agreement shall start on the Commencement Date in the Order Form and continue for the Term.
3.2 The Initial Term of the Agreement shall automatically extend for the Extended Term at the end of the Initial Term and at the end of each Extended Term, unless either party gives written notice to the other, no later than thirty (30) days before the end of the Initial Term or the relevant Extended Term, to terminate the Agreement at the end of the Initial Term or the relevant Extended Term, as the case may be. Ometria shall notify the Client’s marketing team not less than sixty (60) days before the end of the Initial Term (or an Extended Term) regarding the upcoming renewal.
4.1 Ometria hereby grants the Client a non-exclusive, non-transferable, personal and non-sub-licensable licence to permit Users to use the Ometria Service (and the Ometria Service features for the purposes of sending Digital Messages and monitoring, analysing and using content available to the Client on the Ometria Service to optimise its business activities, interact with its Profiles and managing the Client’s Account) during the Term solely for the Client’s internal business operations.
4.2 Where indicated in the Order Form, Ometria will provide the Integration Services and/or Consultancy Services to the Client.
4.3 The Client must treat any username and password to access the Ometria Service or the Client’s Account as Confidential Information, and it must not disclose it to any third party (other than to Users).
4.4 In relation to Users, the Client shall ensure that the Client shall procure that each User keeps secure and confidential any username and password provided for the User’s use of the Ometria Service and shall not disclose such user name and password to any third party including persons within the Client’s organisation, company or business.
4.5 The Client is responsible for maintaining the confidentiality of login details for its Account and any activities that occur under its Account including the activities of Users. Whenever applicable, Ometria encourages the Client to use “strong” passwords (passwords that use a combination of upper and lower case letters, numbers and symbols) with its Account. If the Client has any concerns about the login details for its Account or thinks they have been misused, please contact Ometria at [email protected]. The Client must immediately notify Ometria if the Client becomes aware that the login details of any User are lost, stolen or otherwise compromised.
4.6 The Client is responsible for making all arrangements necessary for Users to have access to the Ometria Service. The Client is also responsible for ensuring that all Users are aware of the terms of the Agreement, and that they comply with them.
4.7 The Client must prevent any unauthorised access to, or use of, the Ometria Service and, in the event of any such unauthorised access or use, promptly notify Ometria.
4.8 The Client recognises that Ometria is always innovating and finding ways to improve the Ometria Service with new features and services. Therefore, the Client agrees that the Ometria Service may change from time to time and no warranty, representation or other commitment is given in relation to the continuity of any functionality of the Ometria Service.
4.9 The Client shall indemnify and defend Ometria, its agents and contractors from and against any and all losses, damages, claims, liabilities or expenses (including reasonable lawyer’s fees) arising out of a claim brought by a third party relating to the Client’s use of the Ometria Service (except to the extent caused by Ometria’s negligence) including, without limitation:
4.9.1 the sending of Digital Messages without the consent of the Client’s Customer; or
4.9.2 the failure of, or non-availability affecting, the Ometria Service caused by the Client or any User.
5.1 Ometria permits the Client to download the Code (including any updates to the Code that Ometria may make available from time to time) from the Website for the sole purpose of permitting the Client to integrate the Client’s Service with the Ometria Service.
5.2 The Client shall insert the Code into the Client’s Service in accordance with the reasonable directions given by Ometria from time to time.
5.3 The Client shall update the Code inserted into the Client’s Service promptly upon receiving notice from Ometria to do the same.
5.4 Notwithstanding clauses 5.2 and 5.3, the Client assumes sole responsibility for installation and integration of the Code with the Client’s Service including but not limited to the Client’s hardware, software, websites and apps.
5.5 Ometria permits the Client to use the API (including updates to the API that Ometria may make available from time to time) for the sole purpose of permitting the Client to transfer Client Data to Ometria.
5.6 The Client shall use the API in accordance with the reasonable directions given by Ometria from time to time.
5.7 The Client must use the most current version of the API after any previous version has been upgraded, following notice from Ometria to do so.
5.8 Ometria may monitor the Client’s use of the Ometria Service to ensure quality, improve the Ometria Service, and verify the Client’s compliance with this Agreement.
5.9 The Client must:
5.9.1 comply with all Applicable Laws and regulations with respect to its use of the Ometria Service and its activities under the Agreement;
5.9.2 comply with the Ometria Acceptable Use Policy as made available and updated from time to time;
5.9.4 use the Ometria Service in accordance with the terms of the Agreement and shall be responsible for any actions and omissions in connection with the use of the Ometria Service by any Users;
5.9.5 obtain and shall maintain all necessary licences, consents, and permissions necessary for Ometria to perform its obligations to the Client under the terms of the Agreement;
5.9.6 ensure that its network and systems, including its internet browser used complies with the relevant specifications provided by Ometria from time to time;
5.9.7 not (a) access, store, distribute or transmit any Virus through the Ometria Service (b) use the Ometria Service to access, store, distribute or transmit any material that is unlawful, harmful, threatening, defamatory, inflammatory, violent, obscene, infringing, harassing or racially or ethnically offensive; (c) use the Ometria Service in a manner that is illegal or causes damage or injury to any person or property; (d) use any automated system, including without limitation “robots,” “spiders,” “offline readers,” to access the Ometria Service in a manner that sends more request messages to the Ometria Service than a human can reasonably produce in the same period of time by using a conventional online web browser; (e) attempt to interfere with or compromise the Ometria Service integrity or security. Ometria reserves the right, without liability or prejudice to its other rights under the Agreement, to suspend and/or disable the Client’s Account for breaches of the provisions of this clause 5.9.6.
5.10 The Client is solely responsible for procuring and maintaining its network connections and telecommunications links from its systems in order to access and use the Ometria Service.
5.11 The Ometria Service may contain links to, or call the servers of, third party websites or services that are not under Ometria’s control, solely at the direction of and/or as a convenience to the Client (“Third Party Sites“). As such, Ometria is not responsible for, and makes no express or implied warranties with regard to, the information, content or other material, products or services that are contained on or are accessible through, or the policies regarding use and privacy of, Third Party Sites. Access to and use of Third Party Sites, including the information, content, material, products, and services on such websites or available through such websites, is solely at the Client’s risk. If the Client accesses any Third Party Sites, the Client does so at its own risk.
5.12 The Client shall maintain a backup of Client Data.
6.1 Ometria is the owner of or the licensee of all intellectual property rights in the Ometria Service. These works are protected by copyright and other laws and treaties around the world. All such rights are reserved.
6.2 Subject to clause 16, Ometria shall indemnify the Client against all liabilities, costs, expenses, damages and losses (but not Excluded Damages as defined in clause 15.1) suffered or incurred by the Client arising out of or in connection with any claim made against the Client for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with the Client use of the Ometria Service.
6.3. Except as permitted under this Agreement, the Client must not:
6.3.1 modify, adapt, reverse engineer, decompile, disassemble, or otherwise access the source code of, the Ometria Service, except as permitted by Law;
6.3.2 distribute, sub-license or otherwise transfer all or any part of the Ometria Service to any other person;
6.3.3 use the Ometria Service as a service bureau or in any similar activity for the benefit of any person;
6.3.4 use the Ometria Service for any purpose other than as specified in this Agreement;
6.3.5 remove, obliterate or alter any copyright, proprietary or similar notices on the Ometria Service.
6.4 The Client may not use the Ometria Service for the purposes of competing with Ometria, including without limitation competitive intelligence.
6.5 The Client hereby grants to Ometria a worldwide, non-exclusive, royalty-free license to access, download and use the Client Data for the purpose of analysing the Client Data in accordance with the Ometria Service functionality, displaying the results of such analysis to Users, developing, testing, improving and altering the functionality of the Ometria Service and producing anonymised or anonymised and aggregated statistical reports and research, including aggregating such anonymised data with that of other clients of Ometria (“Research and Aggregated Data”). The Client hereby further grants to Ometria a worldwide, perpetual, royalty-free license to use, modify, distribute, and create derivative works based on such Research and Aggregated Data. Otherwise, Ometria claims no rights in the Client Data. The Client represents and warrants to Ometria that none of the Client Data violates the terms of this Agreement and that the Client has the necessary right, title, interest and consent necessary to allow Ometria to use the Client Data in accordance with this Agreement.
The Client agrees that Ometria may use the Client’s name, logo and related get-up, trade dress or trademarks, and any email marketing templates that are used in emails sent through the Ometria Service, in any of Ometria’s publicity or marketing materials (whether in printed or electronic form) for the purpose of highlighting that the Client uses the Ometria Service and alongside any testimonials that the Client may give or has agreed to give. The Client hereby grants Ometria such rights of use as are necessary to use such name, logo, related get-up, trade dress or trademarks, email templates and testimonial for the purpose of this clause 7.
8.1 Ometria will use reasonable efforts to make the Ometria Service available to the Client and provide the levels of support as set out in the SLA.
8.2 Subject to 8.1, the Client shall be entitled to service credits calculated as a percentage of the Fees it pays to Ometria for unavailability which has occurred in accordance with the table below (“Service Credits“).
|Monthly Uptime Percentage||Service Credit Percentage|
|Less than 99.5% but equal to or greater than 99.0%||10%|
|Less than 99.0% but equal to or greater than 95.0%||30%|
|Less than 95.0%||100%|
Ometria will apply any Service Credits against future monthly payments due from the Client or if at the end of the Term, paid to the Client’s bank account. Service Credits will not entitle the Client to any refund or other payment from Ometria for unavailability of the Service. Service Credits are non-transferrable.
8.3 The payment of Service Credits to the Client does not limit the Client’s right to terminate this agreement as provided for in the SLA.
8.4 Ometria has implemented Security Policies that meet the international standards set by ISO 27001:2017 which:
8.4.1 establish administrative safeguards that set forth the specific individuals who can access Ometria’s internal network and systems, including its software and hardware.
8.4.2 implement a password protection process for its internal network and systems that utilises strong, complex passwords that are routinely changed and are combined with one or more verification methods to create a multi-factor authentication system.
8.4.3 data encryption methods to secure its network and systems from unauthorised access, including encryption of Client Data and any other non-public information stored on mobile media or transmitted over any public networks or wireless networks.
8.5 Ometria shall for the Term maintain:
8.5.1 its certification of ISO 27001:2017
8.5.2 technology professional indemnity and third party cyber media liability insurance of not less than £3,000,000 in aggregation.
8.6 The Client acknowledges that the Ometria Service requires access to Client Data and any other data sources, whether controlled by the Client or a third party, that the Client may elect to use with the Ometria Service. The Client agrees that Ometria is not responsible for the non-availability of or interruption to the Ometria Service caused by any non-availability of any such data source.
8.7 The Client will allow Ometria to manage all DNS elements associated with the sending of domains via DNS subdomain delegation.
8.8 Ometria will comply with its Voluntary Ethics Statement (as updated from time to time) (“Ometria Statement”) and Ometria will review and update where applicable the Ometria Statement on at least an annual basis and publish such update on the Website on or around 31 December in each year.
To the extent that the Client provides:
– Personal Data to Ometria, Ometria and the Client will process such Personal Data in accordance with the terms of Part A of Ometria’s Data Protection Addendum.
– Personal Information to Ometria, Ometria and the client will process such Personal Information with the terms of Part B of Ometria’s Data Protection Addendum.
and Ometria and the Client agree that the terms of the Data Protection Addendum are incorporated by reference into this Agreement.
10.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under the Agreement. A party’s Confidential Information shall not be deemed to include 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;
10.1.4 is independently developed by the receiving party, which independent development can be shown by written evidence; or
10.1.5 is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
10.2 Each party shall hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available for use for any purpose other than as needed to perform the terms of the Agreement. At any time prior to termination of this Agreement, the receiving party may disclose Confidential Information of the disclosing party to the receiving party’s officers, employees, professional advisers, contractors or consultants who need to know the Confidential Information (“Related Persons”), but only to the extent that such disclosure is strictly necessary and only provided that: (a) it informs those Related Persons that the Confidential Information is confidential and that the receiving party is bound by this Agreement in respect of such information; (b) the receiving party procures that those Related Persons comply with the confidentiality obligations under this Agreement as if they were the receiving party.
10.3 Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of the Agreement. The receiving party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of a similar nature (but in no event less than reasonable care).
10.4 If any Confidential Information is required to be disclosed by statute, rule, regulation or order of any court of competent jurisdiction, before any such disclosure the receiving party, where legally permitted to do so, will provide notice to the disclosing party reasonably sufficient to allow the disclosing party the opportunity to apply for a protective order or other restriction regarding such disclosure.
10.5 If either party elects to file this Agreement with the U.S. Securities and Exchange Commission or any other securities exchange or market, regulatory authority or other body, the filing party will provide the non-filing party, no less than five (5) business days before the expected date of the filing (the “Filing Date”), a copy of the Agreement marked to show the sections for which the filing party plans to seek confidential treatment. The filing party agrees to expand its confidential treatment request to include those provisions of this Agreement reasonably indicated by the non-filing party before the Filing Date as provisions for which the non-filing party requests confidential treatment.
10.6 On expiry or earlier termination of this Agreement the receiving party shall return to the disclosing party all documents and materials containing the disclosing party’s Confidential Information and shall erase to the extent technically and legally practicable all such Confidential Information from its computer and other software or media storage systems, provided that the receiving party may retain materials containing Confidential Information to the extent required by law or any applicable governmental, administrative or regulatory authority or by an order of any court or other authority of competent jurisdiction.
10.7 Other than as explicitly set out in this Agreement neither party shall make, or permit any person to make, any public announcement concerning this Agreement without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant stock, securities or investment exchange), any court or other authority of competent jurisdiction.
11.1 The Client will pay the Fees as set out in, and in accordance with, the Order Form.
11.2 All amounts and Fees stated or referred to in the Agreement:
11.2.1 are payable in the currency specified in the Order Form;
11.2.2 are exclusive of VAT, and the Customer shall in addition pay an amount equal to any VAT chargeable on those sums on delivery of a VAT invoice; and
11.2.3 shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law)
11.3 The Client will be responsible for, and will promptly pay or reimburse Ometria for, the payment of all sales, use, excise, value-added or similar taxes, assessments, or duties (or other similar charges) imposed by any governmental agency (including any interest and penalty imposed thereon as a result of any act or omission of Ometria that is in accordance with the direction or request of the Client) that are based on or with respect to any services provided by Ometria to the Client or the amounts payable to Ometria arising from the performance of the said services.
11.4 The Fees are for the Initial Term stated on the Order Form, the payment of which does not include the right to carry over unused Digital Messages into subsequent Extended Terms.
11.5 If the Client fails to pay the Fees by the due date specified on the invoice, Ometria shall be entitled to interest from the day on which the Fees are due. Both parties agree that the rate of interest on overdue invoices shall be at an annual rate equal to 4% over the then current base lending rate of HSBC UK Bank plc at the date the relevant invoice was issued, commencing on the due date and continuing until fully paid, whether before or after judgment.
11.6 If the Client disputes any invoice:
11.6.1 the Client shall notify Ometria in writing immediately, specifying the reasons for disputing the invoice;
11.6.2 Ometria shall provide all evidence as may be reasonably necessary to verify the disputed invoice;
11.6.3 the Client shall pay to Ometria all amounts not disputed by the Customer on the due date;
11.6.4 the parties shall negotiate in good faith to attempt to resolve the dispute promptly.
11.7 Ometria may, without liability to the Client, suspend or temporarily disable all or part of its access to the Ometria Service and Ometria shall be under no obligation to provide any access to the Ometria Service, or continue to provide the Consultancy Services, while any undisputed amount due to Ometria remains unpaid for more than twenty-one (21) days from (and including) the due date specified on the invoice.
12.1 If the Client exceeds the Messaging Block in any one year of the Initial Term or Extended Term it shall be charged for Additional Blocks.
12.2 On each extension of this Agreement (or if the Initial Term is greater than 12 months then on each anniversary of the first Year):
12.2.1 The Licence Fee shall increase at an annual rate of 5%;
12.2.2 The Data Processing Fee shall be the greater of the Data Processing Fee payable at the beginning of a Year and the Data Processing Fee increased by the Increased Data Processing Percentage.
12.2.3 The parties shall agree to a new Messaging Block and Additional Blocks based on Ometria’s then pricing table.
13.1 Ometria reserves the right, without liability or prejudice to its other rights to the Client:
13.1 to suspend the Client’s Account in whole or in part, and any User accounts, without prior written notice if the Client is in material or persistent breach of any terms of the Agreement, or if, in Ometria’s reasonable determination, the Client is suspected of being in material breach of any terms of the Agreement. For the purposes of this clause 13.1, the parties acknowledge that any breach of the Acceptable Use Policy referred to in clause 5.9.2 will be a material breach of the Agreement.
13.2 terminate the Agreement by written notice with immediate effect if the Client:
13.2.1 is in breach of Law;
13.2.2 infringes Ometria’s intellectual property rights in the Ometria Service;
13.2.3 breaches the Acceptable Use Policy referred to in clause 5.9.2.
13.3 This Agreement may be terminated as follows:
13.3.1 if either party commits a breach of any provision of this Agreement and fails to remedy such breach within thirty (30) days of receiving written notice thereof by the non-breaching party (“Notice of Breach”), the party giving such notice may then deliver a second written notice to the breaching party terminating this Agreement, in which event this Agreement, and the licenses granted hereunder, will terminate on the date specified in such second notice; or
13.3.2 if a receiver is appointed over any assets of either party or if either party makes any arrangement with its creditors or becomes subject to an administration order or goes into liquidation or anything equivalent to the foregoing under any other jurisdiction or ceases to carry on business, the other may terminate by giving written notice with immediate effect.
13.4 If this Agreement is terminated before the end of its current term for any reason other than by the Client under clause 13.3, then the Client will pay to Ometria as liquidated damages the amount due by the Client for the previous calendar month times the number of months remaining in such Initial Term or Extended Term (as applicable) (“Liquidated Damages”) within thirty (30) days after such termination. The parties agree that the Liquidated Damages under this clause are not intended to be and will not be punitive in effect and that the Liquidated Damages are a genuine pre-estimate of loss (which may be difficult to ascertain) resulting from early termination of this Agreement.
13.5 Notwithstanding anything to the contrary contained in this Agreement, if the Client receives any notice of late payment under this Agreement in any form, written or electronic, from Ometria including any business division (e.g., Ometria’s finance or legal department), such notice will be deemed to be a Notice of Breach.
13.6 On termination of this agreement for any reason:
13.6.1 all licences granted under this agreement to the Client shall immediately terminate and the Client shall immediately cease all use of the Services;
13.6.2 any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced.
14.1 Ometria undertakes to make the Ometria Service available as specified in clause 8.1 and provide the Integration Services and the Consultancy Services (if any are to be provided) in accordance with Good Industry Practice using suitably and appropriately qualified, experienced and skilled personnel.
14.2 THE CLIENT ACKNOWLEDGES AND AGREES THAT THE SERVICE(S), THE CONTENTS THEREIN, AND ANY ACCOMPANYING DOCUMENTATION ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE” BASIS AND OMETRIA DOES NOT MAKE ANY AND HEREBY SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS, ENDORSEMENTS, GUARANTEES, OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
14.3 The Client assumes sole responsibility for (i) installation and integration of the Ometria Service with its IT systems including but not limited to the Client’s hardware, software, websites and apps; and (ii) any results obtained from the use of the Ometria Service and for any conclusions drawn or taken from such use and it relies on the results obtained from the Ometria Service at its own risk.
14.4 Ometria will not be responsible for any interruptions, delays, failures or non-availability affecting the Ometria Service or the performance of the Ometria Service which are caused by third parties (including other clients of Ometria, Third Party Sites and third party services connected to the Ometria Service at the direction of the Client), changes to the Ometria Service made by or on behalf of the Client, or by errors or bugs in software, hardware or the Internet on which Ometria relies to provide the Ometria Service and the Client acknowledges that Ometria does not control such third parties or third party services and that such errors and bugs are inherent in the use of such software, hardware and the Internet; and
14.5 Ometria will not be liable (except to the extent caused by Ometria’s negligence) for the sending of Digital Messages by the Client or any other client of Ometria using the Ometria Service.
15.1 NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST SAVINGS AND LOST REVENUES (COLLECTIVELY, THE “EXCLUDED DAMAGES”), WHETHER OR NOT CHARACTERISED IN NEGLIGENCE, TORT, CONTRACT, OR OTHER THEORY OF LIABILITY, EVEN IF ANY OF THE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN ANY OF THE EXCLUDED DAMAGES, AND IRRESPECTIVE OF ANY FAILURE OF AN ESSENTIAL PURPOSE OF A LIMITED REMEDY.
15.2 IN NO EVENT WILL THE AGGREGATE LIABILITY OF EITHER PARTY ARISING OUT OF ANY CLAIM RELATED TO THIS AGREEMENT EXCEED THE AMOUNT PAID BY THE CLIENT HEREUNDER IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.
15.3 NOTHING IN THIS AGREEMENT EXCLUDES EITHER PARTY’S LIABILITY FOR:
15.3.1 DEATH OR PERSONAL INJURY CAUSED BY A PARTY’S NEGLIGENCE; or
15.3.2 FRAUD OR FRAUDULENT MISREPRESENTATION; or
15.3.3 OTHER LOSSES WHICH CANNOT BE EXCLUDED OR LIMITED BY LAW.
15.4 IF ANY APPLICABLE COURT HOLDS ANY PORTION OF THIS CLAUSE 15 TO BE UNENFORCEABLE, THEN THE PARTIES’ LIABILITY WILL BE LIMITED TO THE FULLEST POSSIBLE EXTENT PERMITTED BY THIS AGREEMENT’S GOVERNING LAW.
15.5 THE CLIENT WILL INDEMNIFY, DEFEND AND HOLD HARMLESS THE PARTIES FOR ANY LOSS, DAMAGE OR COST IN CONNECTION WITH ANY CLAIM OR ACTION WHICH MAY BE BROUGHT BY ANY THIRD PARTY AGAINST THE PARTIES RELATING TO ANY BREACH OF THIS AGREEMENT BY THE CLIENT.
15.6 OMETRIA WILL (BUT NOT IN ADDITION TO THE INDEMNITY FOR IP CLAIMS) INDEMNIFY, DEFEND AND HOLD HARMLESS THE PARTIES FOR ANY LOSS, DAMAGE OR COST IN CONNECTION WITH ANY CLAIM OR ACTION WHICH MAY BE BROUGHT BY ANY THIRD PARTY AGAINST THE PARTIES RELATING TO ANY BREACH OF THIS AGREEMENT BY OMETRIA.
15.7 THIS CLAUSE 15 SHALL SURVIVE TERMINATION OF THIS AGREEMENT.
16.1 Subject to clauses 16.2 and 16.5, Ometria shall:
16.1.1 defend at its own expense any claim brought against the Client by any third party alleging that the Client’s use of the Ometria Services infringes any copyright, database right or registered trademark, registered design right or registered patent in the United Kingdom, a member state of the European Union or the United States of America (an “IP Claim”); and
pay, subject to clause 16.3, all costs and damages awarded or agreed in settlement or final judgment of an IP Claim.
16.2 The provisions of clause 16.1 shall not apply unless the Client:
16.2.1 promptly (and in any event within five (5) Business Days) notifies Ometria upon becoming aware of any actual or threatened IP Claim and provides full written particulars;
16.2.2 makes no comment or admission and takes no action that may adversely affect Ometria’s ability to defend or settle the IP Claim;
16.2.3 provides all assistance reasonably required by Ometria subject to Ometria paying the Client’s reasonable costs; and
16.2.4 gives Ometria sole authority to defend or settle the IP Claim as Ometria considers appropriate.
16.3 The provisions of clause 16 shall apply to any payment of costs and damages awarded or agreed in settlement or final judgment of an IP Claim under clause 16.1.
16.4 In the event of any IP Claim Ometria may elect to terminate this Agreement immediately by written notice and promptly refund to the Client on a pro-rata basis for any unused proportion of Fees paid in advance. This clause 16.4 is without prejudice to the Client’s rights and remedies under clauses 16.1.
16.5 Ometria shall have no liability or obligation under this clause 16 in respect of (and shall not be obliged to defend) any IP Claim which arises in whole or in part from:
16.5.1 any modification of the Ometria Services (or any part) without Ometria’s express written approval;
16.5.2 any Client Data;
16.5.3 any software subject to a version of the General Public Licence, together with any other ‘open source’ software falling within the Open Source Definition issued by the Open Source Initiative (www.opensource.org/docs/osd) at the date of our Agreement and any ‘free software’ as defined by the Free Software Foundation (www.gnu.org/philosophy/free-sw.html) at the date of this Agreement;
16.5.4 any breach of this Agreement by the Client;
16.5.5 use of the Ometria Services (or any part) otherwise than in accordance with this Agreement; or
16.5.6 use of the Ometria Services (or any part) in combination with any software, hardware or data that has not been supplied or expressly authorised by Ometria.
16.6 Subject to clause 15.3, the provisions of this clause 16 set out the Client’s sole and exclusive remedy (howsoever arising, including in contract, tort, negligence or otherwise) for any IP Claim.
17.1 Should a dispute, controversy, or claim (each, a “Dispute”) develop between the parties under this Agreement (including without limitation, one respecting the validity, material breach, suspension, or termination hereof), the procedures set forth in clauses 17.2 – 17.5 (inclusive) shall apply (collectively, the “Procedures”). The Procedures shall be the exclusive mechanism available to the parties for resolving Disputes hereunder.
17.2 In the event of a Dispute, the parties must first attempt to informally negotiate and resolve their conflict at the operational level as follows:
17.2.1 within two (2) days of the Dispute, the relevant customer success manager for Ometria and the Client’s Head of CRM shall meet to attempt to settle the dispute;
17.2.2 if the relevant customer success manager for Ometria and Client’s Head of CRM are unable to reach a settlement within seven (7) days from the date of the meeting, the VP of Customer Success for Ometria and the Client’s CMO/Head of CRM shall meet within the following seven (7) days to attempt to settle the dispute;
17.2.3 if, after twenty-one (21) days following the commencement of negotiations, upper management has failed to resolve the Dispute, the parties may seek resolution by mediation as more fully set forth in clause 17.3.
17.3 Subject to clause 17.2, in the event of a dispute arising out of or relating to this contract, including any question regarding its existence, validity or termination, the parties shall first seek settlement of that dispute by mediation in accordance with the London Court of International Arbitration Mediation Rules, which Rules are deemed to be incorporated by reference into this clause.
17.4 Subject to clause 17.2 and 17.3, either party may commence arbitration or file a lawsuit in a court of competent jurisdiction. If the dispute is not settled by mediation within twenty-one (21) days of the commencement of the mediation and arbitration is selected, the dispute shall be referred to and finally resolved by arbitration under the London Court of International Arbitration Rules, which Rules are deemed to be incorporated by reference into this clause 17.4.
17.5 The language to be used in the mediation and in the arbitration shall be English.
17.6 The governing law of the contract shall be the substantive law of England and Wales.
17.7 In any arbitration commenced pursuant to clause 17.4
17.7.1the number of arbitrators shall be one; and
17.7.2 the seat, or legal place, of arbitration shall be the City of London.
17.8 All negotiations commence upon the provision of written notice from one party to the other party identifying the Dispute and requesting the opportunity to negotiate a resolution. Either party may seek equitable relief, such as an injunction, prior to or during the negotiations, arbitration or litigation in order to preserve the status quo and protect its interests during the process. All communications, whether oral or written, are confidential and will be treated by the parties as compromise and settlement negotiations for the purposes of the without prejudice rules. Notwithstanding the foregoing, evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in negotiations.
Laws may require that some of the information or communications Ometria sends to the Client should be in writing. When using the Ometria Service, the Client accepts that communication with Ometria will be mainly electronic. Ometria will contact the Client by email or provide the Client with information by posting notices on the Ometria Service. For contractual purposes, the Client agrees to this electronic means of communication and the Client acknowledges that all contracts, notices, information and other communications that Ometria provides to the Client electronically comply with any legal requirement that such communications be in writing.
All notices given by the Client to Ometria must be given to [email protected]. Ometria may give notice to the Client at either the e-mail or postal address the Client provides to Ometria, or any other way Ometria deems appropriate. Notice will be deemed received and properly served immediately when posted on the Ometria Service or twenty-four (24) hours after an email is sent or three (3) days after the date of posting of any letter. In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an e-mail that such e-mail was sent to the specified e-mail address of the addressee.
20.1 The Client may not transfer, assign, charge or otherwise deal in the Agreement, or any of the Client’s rights or obligations arising under the Agreement, without Ometria’s prior written consent.
20.2 Ometria may grant security (including by way of fixed or floating charge) over, or assign by way of security, any or all of its rights under this agreement for the purposes of, or in connection with, the financing (whether in whole or in part) by Ometria of any of its working capital or other requirements. On the enforcement of any security of a kind referred to in this Clause 20.2, Ometria, any administrative receiver or administrator of Ometria or any person having the benefit of such security may assign any or all of the relevant rights to any person, but the Client’s liability to any assignee in respect of those rights shall not be greater than if no assignment had taken place. Ometria and the Client agree that in the event of any inconsistencies between the provisions of the Agreement and this clause 20.2, this clause 20.2 shall prevail.
Neither party shall be liable to the other for any delay or non-performance of its obligations under the Agreement arising from any cause beyond its control including, without limitation, any of the following: telecommunications failure, internet failure, act of God, act of a third party unless an approved sub-contractor of Ometria, governmental act, war, fire, flood, explosion or civil commotion. For the avoidance of doubt, nothing in this clause shall excuse the Client from any payment obligations under the Agreement.
No forbearance or delay by either party in enforcing its rights shall prejudice or restrict the rights of that party, and no waiver of any such rights or of any breach of any contractual terms shall be deemed to be a waiver of any other right or of any later breach.
If any provision of the Agreement is judged to be illegal or unenforceable, the continuation in full force and effect of the remainder of the provisions shall not be prejudiced.
24.1 Ometria has the right to revise and amend the Terms of Service from time to time to reflect changes in market conditions affecting Ometria’s business.
24.2 The Client will be subject to the Terms of Service in force at the time that it makes use of the Ometria Service, or if Ometria notifies the Client of changes to the Terms of Service and it continues to use the Ometria Service the Client will be subject to those changes.
24.3 Ometria will use reasonable efforts to notify the Client of any material changes to the Terms of Service by e-mail or by the placement of a notice on the Ometria Service.
Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other party, nor authorise either party to make or enter into any commitments for or on behalf of the other party.
A person who is not party to the Agreement shall not have any rights under or in connection with it under the Contracts (Rights of Third Parties) Act 1999.
27.1 This Agreement and any dispute or claim arising out of, or in connection with it, its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of England and Wales.
27.2 The parties irrevocably agree 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 agreement, its subject matter or formation.
28.1 This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous discussions, correspondence, negotiations, drafts, agreements, arrangements and understandings between them, whether written or oral, relating to its subject matter.
28.2 In the event of any conflict or inconsistency between the documents which constitute the Agreement, the following descending order of priority shall apply:
28.2.1 the Order Form;
28.2.2 The Terms and Conditions;
28.2.3 the Data Protection Addendum;
28.2.4 the SLA; and
28.2.5 the Acceptable Use Policy.