Last updated 5th June 2019
We agree to provide you with access to the Operance Services (including applications and other products and services provided by Operance). Our Operance mobile application, website, materials and the Customer Support Services are collectively referred to as the “Operance Services” and governed by this ToU.
By virtue of this Agreement, the parties may have access to each other’s Confidential Information which is disclosed or made available by one party (“Disclosing Party”) to another party (“Receiving Party”) in relation to this Agreement.
3. Confidentiality – Provisions of Agreement
The provisions of Agreement shall be deemed the Confidential Information of both parties and neither party will disclose such information except to such party’s professional advisors, investors (and prospective investors), prospective acquirers, who are themselves bound by confidentiality obligations or as required by any governmental agency or recognised securities or stock exchange in a relevant jurisdiction.
4. Confidentiality – Restrictions
The parties agree to hold each other’s Confidential Information in confidence and, unless required by mandatory law or expressly permitted under this ToU not to make each other’s Confidential Information available to any third party or to use each other’s Confidential Information for any purpose other than the implementation of this Agreement. Each party agrees to take all reasonable steps to ensure that Confidential Information is not disclosed or distributed by its employees, agents or Authorised Users in violation of the terms of this Agreement. Customer acknowledges that (without prejudice to the generality of the foregoing) for purposes of this Agreement, the Applications are Operance’s Confidential Information and Customer shall not attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human perceivable form any of the Applications, except as expressly allowed by applicable law which is incapable of exclusion.
5. Confidentiality – Exceptions
The restrictions in Clause 28 (Data Conversion) shall not apply to information that:
is or becomes publicly known otherwise than through a breach of a duty of confidence by the Receiving Party;
was in the Receiving Party’s lawful possession prior to the disclosure;
is lawfully disclosed to the Receiving Party by a third party without breaching any duty of confidence; or
is independently developed by the Receiving Party, which can be shown by written evidence.
6. Confidentiality – Residuals
“Residuals” shall not be subject to the confidentiality obligations contained in this Agreement, provided that the parties shall maintain the confidentiality of the Confidential Information as provided above. The term “residuals” as used in this Agreement means non-tangible ideas, concepts, know-how or techniques that may be generated, developed or conceived by Operance in connection with providing Services and which may arise from reviewing Customer’s Confidential Information. Residuals shall not be deemed to be Confidential Information. Neither party shall be obliged to limit or restrict the assignment of its personnel or to pay royalties for any work resulting from the use of Residuals.
Operance may from time to time include Customer’s name and trademark in its lists of clients and customers for the purposes of advertising its Services. Operance may also include a brief description of the services that it provides to Customer on the Site or in its marketing materials. The parties will reasonably cooperate with each other to agree to the final text of any such description.
8. Secure Access.
We may provide you and your authorised employees or representatives with identifications and passwords and other means for you to be able to access our Products and Services (“Secure Access”). Where we do so, it is on the condition that you shall be responsible for ensuring that such Secure Access is kept secure and confidential at all times and only made available on a strict ‘need to know’ basis. You shall comply with all security directions or recommendations given by us and inform us immediately if you become aware of or suspect any unauthorized use of the Products or Services or Secure Access, or if the Secure Access becomes available to an unauthorized party. Without prejudice to our other rights and remedies, we may upon notice suspend your access to The Operance Services (or any Product or Service) without liability to you, if in our reasonable opinion, such action is necessary for safeguarding the security of the Operance Services.
9. Customer Registration.
In order to utilise the Operance Services, Customer and/or User will be required to provide certain contact and account information as part of a registration process. Each of Customer and User (i) represents and warrants that all information submitted by it during the registration process is accurate and (ii) agrees to update this information to keep it accurate and complete during the term of this ToU.
10. As-is Basis
You accept that the Operance Services are provided on an “as is” and as “available” basis. Save where we have expressly provided otherwise all information, data, content, proposals, bids and other material (“Content”) displayed by us on the Operance Services is for informational purposes only. Such Content does not constitute our professional advice. In particular, we give no warranties (express or implied) or representations and disclaim all liability regarding any Content appearing on our Operance mobile application or website or social media platforms; and we provide no guarantees regarding accessibility and availability of the applications, products and services appearing on the Operance Services.
You acknowledge that save as expressly set out under this ToU, Operance and/or its licensors own all Intellectual Property Rights in the Operance Services. Except as expressly stated herein, this ToU does not grant Customer and/or User, any Intellectual Property Rights or any other proprietary rights, interest or license in respect of the Operance Services including the Operance mobile application or website or social media platforms or in any related documentation. The structure, organisation, and code of the Operance Services and accompanying materials, if any, are valuable trade secrets of Operance and its licensors, and Customer and/or User shall keep such trade secrets confidential. No logo, graphic, sound, content or image from the Site may be copied or retransmitted unless expressly permitted by Operance in a separate writing. The Operance Services are licensed, not sold.
You acknowledge that any Third-Party Data and Services are licensed (not sold) and provided in object code form only, subject to applicable Third Party Terms.
13. Termination / Suspension
Your access to and use of the Operance services may be terminated or suspended at any time by us with or without notice (and without us having any liability) in the event:
Where a product or service is withheld or no longer provided (whether in relation to the Operance customer that recruited you or customers in general).
14. Content – Copyright
You are authorised to download, reproduce and make available Content on our Operance mobile application or Site for the purpose of using the Product or Service but you may not in so doing remove or amend any trademark, copyright or other proprietary notices. Subject to the above, you may not modify, copy, distribute, resell, make available, republish or upload any of the Content on our Site without our prior consent in writing. No intellectual property or other rights shall be transferred to you by virtue of you using the Operance mobile application or website or social media platforms (or our Products or the Operance Services).
15. Content – Royalty-Free Licensing
Where you supply, post, input or make any Content available through the Operance mobile application or website or social media platforms, you grant us a worldwide non-exclusive, royalty-free licence to make such Content available on our Operance mobile application and website and social media platforms for other users authorised to access such Content. You also consent to us processing your data or any third-party data (including any personal data) as may be reasonably required for the purposes of us providing Products or Services to our authorised users (and will procure for us the right to process such data for those purposes). Operance acknowledges that it does not own the Content that Customer or User submits to the Site in connection with the Operance Services.
16. Content – Postings
To the extent that authorised users supply, post, input, or makes available any Content and exchange information on Our Site (“Postings”), such Postings shall be lawful and shall not be defamatory, offensive, obscene, objectionable or in breach of any obligations of privacy or confidence.
17. Content – Posting Removals
18. Acceptable Use
In using the Operance Services: you will act lawfully and not abuse, threaten, harass, stalk other users or act in any way likely to cause offence or annoyance; and you will not act in any way that interrupts or disrupts the provision of the Products or Services on our Site or which in our reasonable opinion likely to have an adverse effect on our business or The Operance Services.
19. Acceptable Use, Privacy, Computer Misuse, Password and Security Policy
To the fullest extent permitted by applicable law, we exclude liability (on our own behalf and on behalf of our employees, agents, licensors and suppliers) for any (i) indirect, incidental, special, exemplary or consequential damages; or (ii) any lost profits, revenue or anticipated savings, contracts, business interruption, loss of data or other economic loss (whether direct or indirect) howsoever arising (even if we have been advised of the possibility of such damages, losses or expenses) arising out of or in connection with the use of this our site or any site with which it is linked. You assume total responsibility for establishing such procedures for data back up and virus checking as you consider necessary.
In no event shall our aggregate liability to you and any other third party in connection with the Operance services, exceed an amount equal to
the total amount of fees paid by you to us in the twelve (12) month period preceding the date of the claim, regardless of the form of claim or action or
ten thousand pounds sterling (£10,000) (whichever is the greater).
23. Customer Indemnity
Customer shall defend, indemnify and hold harmless Operance and its officers, directors, owners, agents, suppliers and employees (collectively, the “Operance Indemnified Parties”), against all claims, actions, costs, damages, expenses (including, without limitation, reasonable legal fees), liabilities and/or proceedings (“Claims”), arising out of or in connection with Claims by any third party (including Authorised Users) arising out of or in connection with:
unauthorised access to or the misuse of the Operance Services by an Authorised User;
any agreements made with third parties, or any warranties or representations made by Customer to a third party in relation to Operance or the Operance Services (save to the extent that these have been previously authorised by Operance by prior written notice);
provision of User Data or Content by Customer or Authorised User that is illegal or infringes the rights of any third party; Provided that;
Customer is given prompt notice of such Claim;
Operance provides reasonable cooperation to Customer in the defence and settlement of such Claim, at Customer’s expense and
Customer is given sole authority to defend or settle the Claim at its own expense (subject to securing Operance to its reasonable satisfaction).
24. Operance Indemnity
Operance shall defend and indemnify Customer, its officers, directors and employees, against any Claims relating to the Operance Services infringing any United Kingdom patent (effective as of the Effective Date) or copyright; provided that;
Operance is given prompt notice of such Claim;
The customer makes no admission or settlement (without Operance’s express written approval);
The customer provides reasonable cooperation to Operance in the defence and settlement of such Claim, at Operance’s expense; and
Operance is given sole authority to defend or settle the Claim. In the defence or settlement of the Claim or if it appears to Operance that such a Claim may be likely, Operance will be given the opportunity (at its discretion) to obtain for Customer the right to continue using the Operance Services or replace or modify the same so that they become non-infringing or, if such remedies are not reasonably available, terminate this Agreement refunding such portion of charges as have been paid in advance for unexpired portion of the Agreement remaining and without further liability to Customer. Operation shall have no liability to Customer if the Claim is based on
modification of the Operance Services by anyone other than Operance,
Customer’s or an Authorised User’s use of the Operance Services in a manner contrary to this OOU or any instructions given by Operance,
use of the Operance Services after notice of the Claim or an alleged infringement from Operance or any appropriate authority. The foregoing states Customer’s sole and exclusive rights and remedies, and Operance’s entire obligations and liability, for patent, copyright, or other proprietary rights infringement or misappropriation.
25. Data Processing – Royalty-Free Rights
Subject to Clauses 2-6 (Confidentiality), Customer grants to Operance the following non-exclusive, non-transferable, royalty-free right and licence: the right to process (or have processed on its behalf) activity data where reasonably incidental to the performance of Operance’s obligations hereunder; and the right to process activity data to create data which is grouped for the purposes of statistical analysis (but which excludes any information or data which may be associated with a particular person, transaction or series of transactions) (“Aggregated Data”) and to use or licence the use of such Aggregated Data in connection with the creation and/or exploitation of new services, functionality, software or database products (including adaptations and enhancements thereof).
26. Data Processing – Backups
Nothing in this Agreement creates a specific obligation on Operance to store Activity Data for a particular length of time on Customer or an Authorised User’s behalf. Without prejudice to Operance’s obligations in this Clause 16, Customer and each Authorised User retains primary responsibility to create and retain backup copies of its data or records or take such measures as appropriate to protect its data and records against loss, damage or destruction.
27. Data Processing – The Authorised Data Processor
In relation to any Personal Data processed in the performance of the Services, each party shall comply with its respective obligations under the Data Protection Act 2018. In this regard, Operance acts as Customer’s or Authorised Users ‘data processor’ and will ensure that Personal Data processed pursuant to this Agreement is so processed in conformance with: Operance’s technical and security measures from time to time (which policies may be available in electronic form within the Operance mobile application and website from time to time) to protect such Personal Data against accidental loss or unlawful destruction, alteration, disclosure or access; Customer’s or Authorised User’s express instructions (provided they are reasonable and in accordance with applicable law).
28. Data Conversion
As part of the Operance Services, Operance will convert User Data provided to it for use on the Operance Platform. In relation to such data conversion, and without prejudice to Customer’s or Authorised Users’ proprietary rights in the User Data itself, Operance shall own: all applicable copyright and database rights in the compilation or the conversion of that User Data for use on the Operance Platform and within the Applications; and all other applicable Intellectual Property Rights in any of the techniques, methods or programs used to convert that User Data for use as part of the Operance Services. The parties undertake to enter into any further documentation or carry out all such acts which may be necessary to give effect to Operance’s rights under this Clause.
Where we provide links to other websites we do so for information purposes only, and such links are not endorsements by us of any products or services in such sites and we accept no liability for the same.
This Agreement shall commence on the Effective Date as specified in the Order Form and shall continue for the Initial Term unless this Agreement is otherwise terminated as provided in these Clauses 32, 33, 34, and 35. At the end of the Initial Term, this Agreement may be renewed for further subsequent terms (each called a “Renewal Term”), by mutual agreement of Customer and Operance if prior to the end of the then-current Term, Customer pays to Operance the then-applicable fees for such renewal.
32. Termination for Cause
Either party may terminate this Agreement upon written notice:
if the other party materially breaches this Agreement and fails to correct such material breach within 30 days following written notice specifying the breach and requiring its remedy;
if the circumstances set out in Clause 44 (Force Majeure) persist for longer than ninety (90) days and performance has not recommenced.
33. Termination or Suspension for Non-payment
Operance may terminate this Agreement or (at its option) immediately suspend the provision of the whole or any part of the Operance Services, Application or access to the Operance Platform in the event that Customer has not paid any overdue sum (that is not subject to a Good Faith Dispute) payable under this Agreement (including any applicable interest) within seven (7) days after Operance has served a written notice on Customer demanding payment of such overdue amount.
34. Termination for Liquidation etc
Either party may terminate this Agreement if the other enters into liquidation whether compulsory or voluntary (other than for the purposes of amalgamation or reconstruction where the emerging company assumes the obligations of that Party entering liquidation), compounds with its creditors or has an administrator, administrative receiver (or other encumbrance) appointed over its assets, or threatens to do any of the foregoing.
35. Consequences of Termination
The rights and obligations of Operance and Customer contained in [Clauses 2-6 (Confidentiality), 11 (Ownership), 20-22 (Limitation of Liability and Disclaimer of Warranty), this Clause 36, 23-24 (Indemnity), and 37-44 (General)] shall survive any termination or expiration of this Agreement. Upon termination, all permissions and/or licenses granted hereunder shall immediately terminate and each party shall return and make no further use of any of the equipment, software, property, materials and other items (and all copies thereof) belonging to the other party. Operance may destroy or otherwise dispose of any copies of the User Data in its possession unless Operance receives, no later than ninety (90) days after the effective date of the termination or expiration of this Agreement, a written request for the delivery to Customer of the then most recent back-up of the User Data (“Operance Archive”). Operance will use reasonable commercial efforts to deliver the Operance Archive to Customer within thirty (30) days of its receipt of such a written request] Customer shall pay all reasonable expenses incurred by Operance in returning or disposing of User Data and generating an Operance Archive.
In conformity with laws and regulations of the United Kingdom, European Union, United States and other countries relating to international trade, Customer and its employees, agents and Users shall not disclose, export or re-export, directly or indirectly, any product, documentation or technical data (or direct products thereof) provided under this ToU or use the Operance Services to disclose, export or re-export any Content to any country, entity or other party which is ineligible to receive such items under U.K., E.U., or U.S. laws and regulations as modified from time to time by the UK Department of Trade and Industry, the U.K. Secretary of State, the European Commission, the U.S. Department of Commerce or the U.S. Department of the Treasury or under other laws or regulations to which Customer may be subject. Customer shall be solely responsible for;
complying with those laws and regulations and
monitoring any modifications to them. Operance makes no representation that the Operance Services or Content are appropriate for use in locations outside the United Kingdom, European Union, or the United States, and accessing them from territories where their contents are illegal is prohibited. Those who choose to access the Operance Services or Content from other locations do so on their own initiative and risk and are responsible for compliance with local laws.
37. Governing Law and Jurisdiction
By accessing or using the Operance Services, Customer agrees that the statutes and laws of England shall govern all matters relating to Customer’s access to, or use of, the Operance Services. This ToU shall be wholly governed and construed in accordance with the laws of England. Customer and Operance specifically disclaim the U.N. Convention on Contracts for the International Sale of Goods. No choice of law rules of any jurisdiction apply. The parties irrevocably submit to the exclusive jurisdiction of the English Courts in respect of any matter, claim or dispute arising under, out of or in connection with the ToU (including as to its validity) or the legal relationships established by the ToU. The ToU is void where prohibited by law, and the right to access theOperance Services is hereby revoked in such jurisdictions.
The quote set forth in the Order Form does not include any taxes, which may apply to this purchase and which shall be the responsibility of Customer. Any such taxes required to be collected by Operance shall be added to the amount quoted and shall appear as a separate item when invoiced. The right of Operance to receive any payment provided for under the ToU will not be subject to any abatement, reduction, setoff, defence, counterclaim or recoup of any amount due or alleged to be due because of any past, present or future claims of Customer or any User.
39. Entire Agreement
This Agreement together with the Order Form, and any appendices and attachments hereto constitutes the complete agreement between the parties and supersedes all prior or contemporaneous agreements or representations (save in relation to fraudulent representations), written or oral, concerning the subject matter of this Agreement. This Agreement may not be modified or amended except in a writing signed by a duly Authorised representative of each party. In addition, The ToU may be modified only by a written agreement duly executed by authorised signatories for each party. In addition, Operance may update or modify the terms of this ToU, the Acceptable Use Policy or its support policies at any time with or without notice, effective upon posting the updated version thereof on the Operance mobile application or website or social media platforms (or any successor or replacement web page designated by Operance). Customer and Users are responsible for regularly reviewing such updates. If Customer or User does not accept a modification by Operance to the ToU or its policies, Customer must notify Operance of the cancellation of its subscription to the Operance Services within thirty (30) days, and Customer or User must immediately discontinue accessing and using the Operance Services. If Customer or User continues to use the Operance Services, Customer and User will be deemed to have accepted the modifications.
This Agreement shall not prevent Operance from entering into similar agreements with other customers, third parties, or from independently developing, using, selling or licensing materials, products or services which are similar to those provided hereunder.
Neither party may assign this Agreement without the other party’s written consent except that Operance may on written notice assign this Agreement at any time to any wholly-owned UK incorporated subsidiary company it may establish (in which event Customer shall with effect from the date of the notice release Operance from further performance and be bound to the UK company in all respects in the same way as it was to Operance) and/or in the event of a Change of Control (as defined below). Any assignment in violation of this Clause will be null and void. “Change of Control” means, with respect to a party:
the direct or indirect acquisition of either
the majority of voting shares of such party or
all or substantially all of the assets of such party, by another entity in a single transaction or a series of transactions,
the merger of such party with another entity. Subject to the foregoing restrictions, this Agreement shall inure to the benefit of the successors and assigns of the parties.
42. No Partnership etc
Nothing in this Agreement shall be construed to create a partnership, joint venture or agency relationship between the parties.
43. Force Majeure
Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except in relation to the payment of money) on account of strikes, shortages, riots, insurrection, fires, flood, storm, explosions, war, governmental action, labour conditions, earthquakes, material shortages, or any other cause (whether or not similar to any of the foregoing) beyond the reasonable control of such party, provided it gives written notice of such occurrence relied upon to the other party and uses all reasonable efforts to remove the cause of such non-performance as soon as possible. Any reliance on this provision for longer than ninety (90) days (where performance has not recommenced) shall entitle the other party to terminate this Agreement.