THIS MASTER SUBSCRIPTION AGREEMENT ("AGREEMENT") GOVERNS YOUR 14-DAY FREE TRIAL
OF THE SERVICES.
IF YOU PURCHASE OUR SERVICES, THIS AGREEMENT WILL ALSO GOVERN YOUR PURCHASE AND
ONGOING USE OF THOSE SERVICES.
IF YOU USE OUR FREE SERVICES, THIS AGREEMENT WILL GOVERN YOUR ONGOING USE OF THOSE SERVICES.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE
OR BY EXECUTING AN OFFER LETTER THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE
TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A
COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND
SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE
TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT
HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU
MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
You may not access the Services if You are OTD's direct competitor, except with
OTD's prior written consent. In addition, You may not access the Services for purposes
of monitoring their availability, performance or functionality, or for any other
benchmarking or competitive purposes.
This Agreement is effective between You and OTD as of the date You accepted it.
This Agreement was last updated on May 15, 2012.
"Affiliate" means any entity which directly or indirectly controls, is controlled
by, or is under common control with the subject entity. "Control," for purposes
of this definition, means direct or indirect ownership or control of more than 50%
of the voting interests of the subject entity.
"CWP" means Classification Work Package which typically contains a set of laboratory analysis
data, a classification, supporting documentation and is compiled by a User of Purchased Services.
"Effective Date" shall mean the date when OTD commenced the provision of
the Purchased Services.
"Free Services" refers to the Services that give You read-only type access to one or more CWP that You have been invited to view.
"Invitation" is an email from a User of the Purchased Services that invites You to view and comment on a particular CWP.
"Malicious Code" means viruses, worms, time bombs, Trojan horses and other
harmful or malicious code, files, scripts, agents or programs.
"Offer Letter" means the ordering documents for purchases hereunder, including
addenda thereto, that are entered into between You and OTD from time to time. Offer
Letters shall be deemed incorporated herein by reference.
"OTD" means One Touch Data Ltd.
"Purchased Services" means Services that You or Your Affiliates purchase
under an Offer Letter, as distinguished from those provided pursuant to a 14-day
free trial or the Free Services.
"Services" means the online, web-based applications and platform provided
by OTD via either the Website or and/or other designated websites as described in
the User Guide, that are ordered by You as part of a 14-day free trial or under
an Offer Letter or are accessed by You following an Invitation to use the Free Services.
"this Agreement" shall consist of:
i) The terms and conditions contained herein and any variations thereof made by
OTD from time to time as indicated on the Website.
ii) The Offer Letter.
"User Guide" means the online user guide for the Services, accessible via
the Website, as updated from time to time. You acknowledge that You have had the
opportunity to review the User Guide during the 14-day free trial described in Section
2 (14-Day Free Trial) below.
"Users" means individuals who are authorized by You to use the Services,
for whom subscriptions to a Service have been purchased, and who have been supplied
user identifications and passwords by OTD. Users may include but are not limited to Your
employees and permanent contractors; or other third parties where authorised by OTD.
"Website" refers to either www.hazwasteoneline.com or www.hazwasteoneline.it
used to access the Services and supporting documents.
"You" or "Your" means the company or other legal entity for which
you are accepting this Agreement, and Affiliates of that company or entity.
"Your Data" means all electronic data or information submitted by You to
OTD will make one or more Services available to You on a trial basis free of charge
until the earlier of (a) the fourteenth day after Your acceptance of this Agreement
or (b) the start date of any Purchased Services ordered by You.
ANY DATA YOU ENTER INTO THE SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES
BY OR FOR YOU, DURING YOUR 14-DAY FREE TRIAL WILL BE PERMANENTLY LOST UNLESS YOU
PURCHASE A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL, PURCHASE
UPGRADED SERVICES, OR EXPORT SUCH DATA, BEFORE THE END OF THE 14-DAY TRIAL PERIOD.
YOU CANNOT TRANSFER DATA ENTERED OR CUSTOMIZATIONS MADE DURING THE 14-DAY FREE TRIAL
TO A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL (E.G., FROM
ENTERPRISE EDITION TO PROFESSIONAL EDITION OR FROM PROFESSIONAL EDITION TO STANDARD
EDITION); THEREFORE, IF YOU PURCHASE A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT
COVERED BY THE TRIAL, YOU MUST EXPORT YOUR DATA BEFORE THE END OF THE 14-DAY TRIAL
PERIOD OR YOUR DATA WILL BE PERMANENTLY LOST.
NOTWITHSTANDING SECTION 9 (WARRANTIES AND DISCLAIMERS), DURING THE 14-DAY FREE TRIAL
THE SERVICES ARE PROVIDED "AS-IS" WITHOUT ANY WARRANTY.
Please review the User Guide during the trial period so that You become familiar
with the features and functions of the Services before You make Your purchase.
3.1. Provision of Purchased Services. OTD shall make the Purchased Services
available to You pursuant to this Agreement and the relevant Offer Letter during
a subscription term. You agree that Your purchases hereunder are neither contingent
on the delivery of any future functionality or features nor dependent on any oral
or written public comments made by OTD regarding future functionality or features.
3.2. User Subscriptions. Unless otherwise specified in the applicable Offer
Letter, (i) Services are purchased as User subscriptions and may be accessed by
no more than the specified number of Users, (ii) additional User subscriptions may
be added during the subscription term at the same pricing as that for the pre-existing
subscriptions, prorated for the remainder of the subscription term in effect at
the time the additional User subscriptions are added, and (iii) the added User subscriptions
shall terminate on the same date as the pre-existing subscriptions. User subscriptions
are for designated Users and cannot be shared or used by more than one User but
may be reassigned to new Users replacing former Users who no longer require ongoing
use of the Services.
4.1. Provision of Free Services. OTD shall make the Free Services available to
You pursuant to this Agreement and Your receipt of an Invitation from a User of the
Purchased Services. You agree that Your use hereunder is neither contingent on the
delivery of any future functionality or features nor dependent on any oral or written
public comments made by OTD regarding future functionality or features.
4.2. Free User Subscriptions. The Free Services are available at no charge following
receipt of an Invitation and subsequent registration of the User. Free User Subscriptions are
for designated Users and cannot be shared or used by more than one User but may be reassigned
to new Users replacing former Users who no longer require ongoing use of the Services.
4.3 Classification Work Package (CWP). An Invitation gives You time-limited access to a CWP.
A CWP contains a set of laboratory analysis data, the classification and supporting documentation
and is put together by the Owner of the CWP; the Owner is the User of the Purchased Services who
sent the Invitation to you.
4.4. Messaging Tool. The CWP also contains a message from the Owner to which you can reply
using the Messaging Tool. Any messages sent between You and the Owner become part of the CWP.
4.5 Expiration. Access to a particular CWP is limited to 24 hours from the time the
Invitation was sent. After this time this CWP will be marked as expired and no further access will
5.1 OTD's Responsibilities. OTD shall: (i) provide to You basic support for
the Purchased Services at no additional charge, and/or upgraded support if purchased
separately, (ii) use commercially reasonable efforts to make the Purchased Services
available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which
OTD shall give at least 8 hours notice via the Purchased Services and which OTD
shall schedule to the extent practicable during the weekend hours from 6:00 pm GMT
Friday to 3:00 am GMT Monday, or (b) any unavailability caused by circumstances
beyond OTD reasonable control, including without limitation, acts of God, acts of
government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other
labour problems (other than those involving OTD employees), or Internet service
provider failures or delays, and (iii) provide the Purchased Services only in accordance
with applicable laws and government regulations.
5.2. Your Responsibilities. You shall (i) be responsible for Users' compliance
with this Agreement, (ii) be solely responsible for the accuracy, quality, integrity
and legality of Your Data and of the means by which You acquired Your Data, (iii)
use commercially reasonable efforts to prevent unauthorized access to or use of
the Services, and notify OTD promptly of any such unauthorized access or use, (iv)
at all times to comply with all access and security procedures provided by OTD,
and (v) use the Services only in accordance with the User Guide and applicable laws
and government regulations. You shall not (a) make the Services available to anyone
other than Users, (b) sell, resell, rent or lease the Services, (c) use the Services
to store or transmit infringing, libellous, or otherwise unlawful or tortuous material,
or to store or transmit material in violation of third-party privacy rights, (d)
use the Services to store or transmit Malicious Code, (e) interfere with or disrupt
the integrity or performance of the Services or third-party data contained therein,
or (f) attempt to gain unauthorized access to the Services or their related systems
5.3. Usage Limitations. Services may be subject to other limitations, such
as, for example, limits on disk storage space, on the number of calls You are permitted
to make for support. Any such limitations are specified in the User Guide or in
the Offer Letter.
5.4. Cookies. OTD uses session cookies containing encrypted information to allow
OTD to uniquely identify You. Each time You log into the Services, a session cookie
containing an encrypted, unique identifier that is tied to Your User Subscription is
placed on Your computer by Your browser. These session cookies allow OTD to uniquely identify
You when you are logged into the Services and to process Your online transactions and requests.
Session cookies are required to use the Services.
If You disable Your web browser’s ability to accept cookies, You will not be able to use the Services.
6.1. User Fees. You shall pay all fees specified in all Offer Letters hereunder.
Except as otherwise specified herein or in an Offer Letter, (i) fees are quoted
and payable in pounds sterling, (ii) fees are based on services purchased and not
actual usage, (iii) payment obligations are non-cancellable and fees paid are non-refundable,
and (iv) the number of User subscriptions purchased cannot be decreased during the
relevant subscription term stated in the Offer Letter. User subscription fees are
based on monthly periods that begin on the subscription Effective Date and each
monthly anniversary thereof; therefore, fees for User subscriptions added in the
middle of a monthly period will be charged for that full monthly period and the
monthly periods remaining in the subscription term.
6.2. Invoicing and Payment. You will provide OTD with valid and updated credit
card information, or with a valid purchase order or alternative document reasonably
acceptable to OTD. If You provide credit card information to OTD, You authorize
OTD to charge such credit for all Services listed in the Offer Letter for the initial
subscription term and any renewal subscription term(s) as set forth in Section 12.2
(Term of Purchased User Subscriptions). Such charges shall be made in advance, either
annually or in accordance with any different billing frequency stated in the applicable
Offer Letter. If the Offer Letter specifies that payment will be by a method other
than a credit card, OTD will invoice You in advance and otherwise in accordance
with the relevant Offer Letter. Unless otherwise stated in the Offer Letter, invoiced
charges are due net 30 days from the invoice date. You are responsible for maintaining
complete and accurate billing and contact information in the Services.
6.3. Overdue Charges. If any charges are not received from You by the due
date, then at OTD's discretion, (a) such charges may accrue late interest at the
rate of 1.5% of the outstanding balance per month, or the maximum rate permitted
by law, whichever is lower, from the date such payment was due until the date paid,
and/or (b) OTD may condition future subscription renewals and Offer Letters on payment
terms shorter than those specified in Section 6.2 (Invoicing and Payment).
6.4. Suspension of Service and Acceleration. If any amount owing by You under
this or any other agreement for OTD services is 30 or more days overdue (or 10 or
more days overdue in the case of amounts You have authorized OTD to charge to Your
credit card), OTD may, without limiting OTD's other rights and remedies, accelerate
Your unpaid fee obligations under such agreements so that all such obligations become
immediately due and payable, and suspend OTD's services to You until such amounts
are paid in full.
6.5. Payment Disputes. OTD shall not exercise OTD's rights under Section
6.3 (Overdue Charges) or 6.4 (Suspension of Service and Acceleration) if the applicable
charges are under reasonable and good-faith dispute and You are cooperating diligently
to resolve the dispute.
6.6. Taxes. Unless otherwise stated, OTD'S fees do not include any taxes,
levies, duties or similar governmental assessments of any nature, including but
not limited to value-added, sales, use or withholding taxes, assessable by any local,
state, provincial, federal or foreign jurisdiction (collectively, " Taxes").
You are responsible for paying all Taxes associated with Your purchases hereunder.
If OTD has the legal obligation to pay or collect Taxes for which You are responsible
under this paragraph, the appropriate amount shall be invoiced to and paid by You,
unless You provide OTD with a valid tax exemption certificate authorized by the
appropriate taxing authority. For clarity, OTD are solely responsible for taxes
assessable against it based on OTD's income, property and employees.
7.1. Reservation of Rights. Subject to the limited rights expressly granted
hereunder, OTD reserve all rights, title and interest in and to the Services, including
all related intellectual property rights. No rights are granted to You hereunder
other than as expressly set forth herein.
7.2. Restrictions. You shall not (i) permit any third party to access the
Services except as permitted herein or in an Offer Letter, (ii) create derivate
works based on the Services, (iii) copy, frame or mirror any part or content of
the Services, other than copying or framing on Your own intranets or otherwise for
Your own internal business purposes, (iv) reverse engineer the Services, or (v)
access the Services in order to (a) build a competitive product or service, or (b)
copy any features, functions or graphics of the Services.
7.3. Ownership of Your Data. As between OTD and You, You exclusively own
all rights, title and interest in and to all of Your Data.
7.4. Suggestions. OTD shall have a royalty-free, worldwide, transferable,
sub-licensable, irrevocable, perpetual license to use or incorporate into the Services
any suggestions, enhancement requests, recommendations or other feedback provided
by You, including Users, relating to the operation of the Services.
8.1. Definition of Confidential Information. As used herein,
"Confidential Information" means all confidential information disclosed by a party
("Disclosing Party") to the other party ("Receiving Party"), whether
orally or in writing, that is designated as confidential or that reasonably should
be understood to be confidential given the nature of the information and the circumstances
of disclosure. Your Confidential Information shall include Your Data; OTD's Confidential
Information shall include the Services; and Confidential Information of each party
shall include the terms and conditions of this Agreement and all Offer Letters,
as well as business and marketing plans, technology and technical information, product
plans and designs, and business processes disclosed by such party. However, Confidential
Information (other than Your Data) shall not include any information that (i) is
or becomes generally known to the public without breach of any obligation owed to
the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure
by the Disclosing Party without breach of any obligation owed to the Disclosing
Party, (iii) is received from a third party without breach of any obligation owed
to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
8.2. Protection of Confidential Information. Except as otherwise permitted
in writing by the Disclosing Party, (i) the Receiving Party shall use the same degree
of care that it uses to protect the confidentiality of its own confidential information
of like kind (but in no event less than reasonable care) not to disclose or use
any Confidential Information of the Disclosing Party for any purpose outside the
scope of this Agreement, and (ii) the Receiving Party shall limit access to Confidential
Information of the Disclosing Party to those of its employees, contractors and agents
who need such access for purposes consistent with this Agreement and who have signed
confidentiality agreements with the Receiving Party containing protections no less
stringent than those herein.
8.3. Protection of Your Data. Without limiting the above, OTD shall maintain
appropriate administrative, physical, and technical safeguards for protection of
the security, confidentiality and integrity of Your Data. OTD shall not (a) modify
Your Data, (b) disclose Your Data except as compelled by law or as expressly permitted
in writing by You, or (c) access Your Data except to provide the Services or prevent
or address service or technical problems, or at Your request in connection with
customer support matters.
8.4. Compelled Disclosure. The Receiving Party may disclose Confidential
Information of the Disclosing Party if it is compelled by law to do so, provided
the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure
(to the extent legally permitted) and reasonable assistance, at the Disclosing Party's
cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving
Party is compelled by law to disclose the Disclosing Party's Confidential Information
as part of a civil proceeding to which the Disclosing Party is a party, and the
Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse
the Receiving Party for its reasonable cost of compiling and providing secure access
to such Confidential Information.
9.1. OTD Warranties. OTD warrant that (i) the Services shall perform materially
in accordance with the User Guide, the functionality of the Services will not be
materially decreased during a subscription term. For any breach of either such warranty,
Your exclusive remedy shall be as provided in Section 12.4 (Termination for Cause)
and Section 12.5 (Refund or Payment upon Termination) below.
The Services are provided for indicative purposes only and represent OTD's interpretation
of published technical guidance. The Services are not intended to be a substitute
for formal classification by the intended Waste Operator or Regulating Authority.
None of the Services, documentation, and/or Website are subject to any warranty
or condition, express or implied, including, without limitation, any warranty of
satisfactory quality, fitness for a particular purpose or use, and non-infringement.
OTD does not warrant or guarantee that the provision of any Services, documentation
or Website access will be error free or uninterrupted.
You acknowledge that electronic communications, databases and websites are subject
to errors and tampering and that, notwithstanding OTD's use of reasonable security
precautions, OTD does not guarantee or warrant that such events will not take place.
9.2. Mutual Warranties. Each party represents and warrants that (i) it has
the legal power to enter into this Agreement, and (ii) it will not transmit to the
other party any Malicious Code.
9.3. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES
ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND
EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES
OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED
BY APPLICABLE LAW.
10.1. Indemnification by OTD. OTD shall defend You against any claim, demand,
suit, or proceeding ("Claim") made or brought against You by a third party
alleging that the use of the Services as permitted hereunder infringes or misappropriates
the intellectual property rights of a third party, and shall indemnify You for any
damages finally awarded against, and for reasonable lawyer's fees incurred by, You
in connection with any such Claim; provided, that You (a) promptly give OTD written
notice of the Claim; (b) give OTD sole control of the defence and settlement of
the Claim (provided that OTD may not settle any Claim unless the settlement unconditionally
releases You of all liability); and (c) provide to OTD all reasonable assistance,
at OTD's expense.
10.2. Indemnification by You. You shall defend OTD against any Claim made
or brought against OTD by a third party alleging that Your Data, or Your use of
the Services in violation of this Agreement, infringes or misappropriates the intellectual
property rights of a third party or violates applicable law, and shall indemnify
OTD for any damages finally awarded against, and for reasonable attorney's fees
incurred by, OTD in connection with any such Claim; provided, that OTD (a) promptly
give You written notice of the Claim; (b) give You sole control of the defence and
settlement of the Claim (provided that You may not settle any Claim unless the settlement
unconditionally release OTD of all liability); and (c) provide to You all reasonable
assistance, at OTD expense.
10.3. Exclusive Remedy. This Section 10 (Mutual Indemnification) states the
indemnifying party's sole liability to, and the indemnified party's exclusive remedy
against, the other party for any type of Claim described in this Section.
11.1. Limitation of Liability. IN NO EVENT SHALL EITHER PARTY'S AGGREGATE
LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT
OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER
OR, WITH RESPECT TO ANY SINGLE INCIDENT, THE LESSER OF £250,000 OR THE AMOUNT PAID
BY YOU HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT. THE FOREGOING SHALL NOT
LIMIT YOUR PAYMENT OBLIGATIONS UNDER SECTION 6 (FEES AND PAYMENT FOR PURCHASED SERVICES).
11.2. Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER
PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR
FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES
HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY,
AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE
12.1. Term of Agreement. This Agreement commences on the date You accept
it and continues until all User subscriptions granted in accordance with this Agreement
have expired or been terminated. If You elect to use the Services for a 14-day free
trial period and do not purchase a subscription before the end of that period, this
Agreement will terminate at the end of the 14-day free trial period.
12.2. Term of Purchased User Subscriptions. User subscriptions purchased
by You commence on the start date specified in the applicable Offer Letter and continue
for the subscription term specified therein.
Except as otherwise specified in the
applicable Offer Letter, all User subscriptions shall automatically renew for additional
periods equal to the expiring subscription term or one year (whichever is shorter),
unless either party gives the other notice of non-renewal at least 30 days before
the end of the relevant subscription term. The per-unit pricing during any such
renewal term shall be the same as that during the prior term unless OTD has given
You written notice of a pricing increase at least 30 days before the end of such
prior term, in which case the pricing increase shall be effective upon renewal and
thereafter. Any such pricing increase shall not exceed 7% over the pricing for the
relevant Services in the immediately prior subscription term, unless the pricing
in such prior term was designated in the relevant Offer Letter as promotional or
12.3. Term of Free User Subscriptions. You will retain access to the list
of expired CWP for 12 months after the last CWP expired or was removed by the Owner. If You wish
to have ongoing access to all the CWP to which You have been invited to view, You will need to
purchase a subscription to a suitable Purchased Service.
12.4. Termination for Cause. A party may terminate this Agreement for cause:
(i) upon 30 days written notice to the other party of a material breach if such
breach remains uncured at the expiration of such period, or (ii) if the other party
becomes the subject of a petition in bankruptcy or any other proceeding relating
to insolvency, receivership, liquidation or assignment for the benefit of creditors.
12.5. Refund or Payment upon Termination. Upon any termination for cause
by You, OTD shall refund You any prepaid fees covering the remainder of the term
of all subscriptions after the effective date of termination. Upon any termination
for cause by OTD, You shall pay any unpaid fees covering the remainder of the term
of all Offer Letters after the effective date of termination. In no event shall
any termination relieve You of the obligation to pay any fees payable to OTD for
the period prior to the effective date of termination.
12.6. Return of Your Data. Upon request by You made within 30 days after
the effective date of termination of a Purchased Services subscription, OTD will
make available to You for download a file of Your Data in comma separated value
(.csv) format along with attachments in their native format. After such 30-day period,
OTD shall have no obligation to maintain or provide any of Your Data and shall thereafter,
unless legally prohibited, delete all of Your Data in OTD's systems or otherwise
in OTD's possession or under OTD's control.
12.7. Surviving Provisions. Section 6 (Fees and Payment for Purchased Services),
7 (Proprietary Rights), 8 (Confidentiality), 9.3 (Disclaimer), 10 (Mutual Indemnification),
11 (Limitation of Liability), 12.5 (Refund or Payment upon Termination), 12.6 (Return
of Your Data), 13 (Governing Law) and 15 (General Provisions) shall survive any
termination or expiration of this Agreement.
13.1. General. This Agreement shall be governed by and construed in accordance
with English law and the parties herby submit to the exclusive jurisdiction of the
13.2. Manner of Giving Notice. Except as otherwise specified in this Agreement,
all notices, permissions and approvals hereunder shall be in writing and shall be
deemed to have been given upon: (i) personal delivery, (ii) the second business
day after mailing, (iii) the second business day after sending by confirmed facsimile,
or (iv) the first business day after sending by email (provided email shall not
be sufficient for notices of termination or an indemnifiable claim). Notices to
You shall be addressed to the system administrator designated by You for Your relevant
Services account, and in the case of billing-related notices, to the relevant billing
contact designated by You.
14.1. Force majeure OTD shall have no liability to the Customer under this agreement if it is prevented from
or delayed in performing its obligations under this agreement, or from carrying on its
business, by acts, events, omissions or accidents beyond its reasonable control, including,
without limitation, strikes, lock-outs or other industrial disputes (whether involving the
workforce of OTD or any other party), failure of a utility service or transport network,
act of God, war, riot, civil commotion, malicious damage, compliance with any law or
governmental order, rule, regulation or direction, accident, breakdown of plant or machinery,
fire, flood, storm or default of suppliers or sub-contractors, provided that the Customer is
notified of such an event and its expected duration.
15.1. Relationship of the Parties. The parties are independent contractors.
This Agreement does not create a partnership, franchise, joint venture, agency,
fiduciary or employment relationship between the parties.
15.2. No Third-Party Beneficiaries. There are no third-party beneficiaries
to this Agreement.
15.3. Waiver and Cumulative Remedies. No failure or delay by either party
in exercising any right under this Agreement shall constitute a waiver of that right.
Other than as expressly stated herein, the remedies provided herein are in addition
to, and not exclusive of, any other remedies of a party at law or in equity.
15.4. Severability. Provisions of this Agreement which either are expressed
to survive expiry or termination of this Agreement or from their nature or context
it is contemplated that they are to survive such expiry or termination, shall remain
in full force and effect notwithstanding such expiry or termination.
15.5. Lawyer Fees. You shall pay on demand all of OTD reasonable lawyer's
fees and other costs incurred by OTD to collect any fees or charges due OTD under
this Agreement following Your breach of Section 7.2 (Invoicing and Payment).
15.6. Assignment. Neither party may assign any of its rights or obligations
hereunder, whether by operation of law or otherwise, without the prior written consent
of the other party (not to be unreasonably withheld). Notwithstanding the foregoing,
either party may assign this Agreement in its entirety (including all Offer Letters),
without consent of the other party, to its Affiliate or in connection with a merger,
acquisition, corporate reorganization, or sale of all or substantially all of its
assets not involving a direct competitor of the other party. A party's sole remedy
for any purported assignment by the other party in breach of this paragraph shall
be, at the non-assigning party's election, termination of this Agreement upon written
notice to the assigning party. In the event of such a termination, OTD shall refund
to You any prepaid fees covering the remainder of the term of all subscriptions
after the effective date of termination. Subject to the foregoing, this Agreement
shall bind and inure to the benefit of the parties, their respective successors
and permitted assigns.
15.7. Entire Agreement. This Agreement, including all exhibits and addenda
hereto and all Offer Letters, constitutes the entire agreement between the parties
and supersedes all prior and contemporaneous agreements, proposals or representations,
written or oral, concerning its subject matter. No modification, amendment, or waiver
of any provision of this Agreement shall be effective unless in writing and either
signed or accepted electronically by the party against whom the modification, amendment
or waiver is to be asserted. However, to the extent of any conflict or inconsistency
between the provisions in the body of this Agreement and any exhibit or addendum
hereto or any Offer Letter, the terms of such exhibit, addendum or Offer Letter
shall prevail. Notwithstanding any language to the contrary therein, no terms or
conditions stated in Your purchase order or other order documentation (excluding
Offer Letters) shall be incorporated into or form any part of this Agreement, and
all such terms or conditions shall be null and void.
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