1.1 The definitions and rules of interpretation in this clause apply in this Agreement.
means the Anonymous Data along with any other data derived from compiling, combining or incorporating such Anonymous Data with or into other similar data and information available, derived or obtained from other customers, clients, licences or users of the Software.
means any Customer Data and Outputs that are accessible on an anonymised basis.
means any applicable law, legislation, instrument, rule, order, regulation, directive, bye-law or decision including the rules and regulations of any Authority, as the same may be amended or varied from time to time.
means those employees, agents and independent contractors of the Customer’s Group who are authorised by the Customer to access and use the Subscription Services and the Documentation.
means any local, national, multinational, governmental or non-governmental authority, statutory undertaking or public or regulatory body or body corporate which has any jurisdiction, control or influence over the obligations of either party to the Agreement.
means a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
means any information in whatever form of a confidential nature which a party has obtained or received, directly or indirectly, in connection with this Agreement and/or the services provided or received under this Agreement whether before or after the date of this Agreement, including:
"Consumer Prices Index"
means the Consumer Prices Index (CPI)(all items)(United Kingdom).
means the cover sheet entered into between OPEX and the Customer, which incorporates the terms of this Agreement.
has the meaning given to it on the Cover Sheet.
means the data inputted by the Customer, Authorised Users, or OPEX on the Customer's behalf for the purpose of using the Subscription Services or facilitating the Customer's use of the Services.
means the Customer’s facilities and sites in relation to which the Subscription Services shall be performed as described in the Cover Sheet.
means any customisations to the Software developed by OPEX under this Agreement.
means any document made available to the Customer by OPEX online via www.opex-group.com or such other web address notified by OPEX to the Customer from time to time which sets out a description of the Subscription Services and the user instructions for the Subscription Services.
has the meaning given to it on the Cover Sheet.
means the Subscription Fees, Implementation Services Fees and Customisation Services Fees (as applicable) payable by the Customer to OPEX as set out on the Cover Sheet.
means the date that the Subscription Services are ready and available for use by the Customer
means the date for Go-Live notified by OPEX to the Customer in accordance with clause 2.3.
means in relation to a company, that company, any subsidiary or holding company from time to time.
means the services to be provided by OPEX to setup, configure and host the Subscription Services, as set out on the Cover Sheet.
"Initial Subscription Term"
has the meaning given to it in the Cover Sheet.
"Intellectual Property Rights"
means patents, utility models, rights to inventions, copyright and neighboring and related rights, trademarks and service marks, business names and domain names, rights in software, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similarly or equivalent rights, or forms of protection which subsist or will subsist now or in the future in any part of the world.
"Normal Business Hours"
means 8:30 to 17:30 local UK time, each Business Day.
means the outputs, results, deliverables, data, information and other materials generated by, resulting from, or otherwise produced from, by or through the Subscription Services and/or the Software using the Customer Data.
means the platform at any other website notified to the Customer by OPEX from time to time, as more particularly described in the Documentation.
means the period described in clause 13.1.
"Service Level Agreement"
means the service level agreement available at https://www.opex-group.com/sla.
the software applications provided by OPEX in connection with the Customer Facilities as part of the Subscription Services, as set out in the Cover Sheet.
means the subscription services provided by OPEX to the Customer under this Agreement via the Platform.
means the Initial Subscription Term and any Renewal Periods.
has the meaning given to it in the Cover Sheet.
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 re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
means a weakness in the computational logic (for example, code) found in software and hardware components that when exploited, results in a negative impact to the confidentiality, integrity, or availability, and the term Vulnerabilities shall be construed accordingly.
means any period of twelve (12) consecutive months from the Effective Date or any anniversary thereof.
1.2 Clause, schedule and paragraph headings in this Agreement are for ease of reference only and are not to be taken into account in the interpretation of the clause or paragraph to which they refer.
1.3 The schedules and Cover Sheet form part of this Agreement and shall have effect as if set out in full in the body of this Agreement. Any reference to this Agreement includes the schedules and the Cover Sheet.
1.4 A reference to a “company” shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.5 References to “clauses” and “schedules” are to the clauses and schedules of this Agreement.
1.6 References to a numbered paragraph are to a paragraph in a relevant schedule.
1.7 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.8 Words of one gender include all other genders, and words denoting natural persons include corporations and firms and all such words are to be construed interchangeably in that manner
1.9 This Agreement shall be binding on, and enure to the benefit of, the parties to this Agreement and their respective personal representatives, successors and permitted assigns, and references to any party shall include that party’s personal representatives, successors and permitted assigns.
1.10 A reference to a statute or statutory provision: (i) is a reference to it as amended, extended or re-enacted from time to time; and (ii) shall include all subordinate legislation made from time to time under that statute or statutory provision.
1.11 A reference to “writing” or “written” includes email but does not include fax, SMS or other informal electronic messaging systems.
1.12 Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
1.13 Any words following the terms “including”, “include”, “in particular”, “for example” or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
2 IMPLEMENTATION SERVICES
2.1 As soon as reasonably possible after the Effective Date, OPEX shall use reasonable endeavours to carry out the Implementation Services and Customisation Services.
2.2 OPEX shall provide the Implementation Services and Customisation Services to the Customer in accordance with reasonable skill and care.
2.3 OPEX shall test the output of the Implementation Services and Customisation Services and once the Subscription Services are ready to Go-Live, OPEX shall notify the Customer of the Go-Live Date.
3 USER SUBSCRIPTIONS
3.1 Subject to the Customer’s strict compliance with the terms of this Agreement, with effect from the Go-Live Date, OPEX hereby grants to the Customer a non-exclusive, non-transferable, non-sublicensable, revocable, limited licence to permit the Authorised Users to use the Subscription Services and the Documentation during the Subscription Term in the Territory solely for the Customer's internal business operations.
3.2 In relation to the Authorised Users, the Customer undertakes that:
(a) it shall not allow any User Subscription to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User subject in each case to the Customer obtaining OPEX’s prior written approval, in which case the prior Authorised User shall no longer have any right to access or use the Subscription Services and Documentation;
(b) each Authorised User shall keep a secure password for their use of the Subscription Services and Documentation, that such password shall be changed from time to time and each Authorised User shall keep their password confidential; and
(c) it shall permit OPEX on a continuing basis to track the number and type of Authorised Users accessing and using the Subscription Services operated by the Customer and each Authorised Users’ activity in relation to the Subscription Services.
3.3 The Customer acknowledges and agrees that OPEX shall be entitled to:
(a) keep a list of the current Authorised Users; and
(b) disable the passwords of any Authorised Users and issue new passwords to such Authorised Users.
3.4 The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Subscription Services that:
(a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
(b) facilitates illegal activity;
(c) depicts sexually explicit images;
(d) promotes unlawful violence;
(e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
(f) is otherwise illegal or causes damage or injury to any person or property;
and OPEX reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer's access to any material that breaches the provisions of this clause 3.3.
3.5 The Customer shall not:
(a) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means;
(b) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
(c) access all or any part of the Subscription Services and Documentation in order to build a product or service which competes with the Subscription Services and/or the Software; or
(d) use the Subscription Services and/or Documentation to provide services to third parties; or
(e) subject to clause 19.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Subscription Services and/or Documentation available to any third party except the Authorised Users, or
(f) attempt to obtain, or assist third parties in obtaining, access to the Subscription Services and/or Documentation, other than as provided under this clause 2; or
(g) introduce or permit the introduction of any Virus or Vulnerability into OPEX's network and information systems.
3.6 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Subscription Services and/or the Documentation and, in the event of any such unauthorised access or use, notify OPEX as soon as reasonably practicable and, in any event, within 48 hours of becoming aware of such unauthorised access or use.
4 SUBSCRIPTION SERVICES
4.1 OPEX shall, during the Subscription Term, provide the Subscription Services and make available the Documentation to the Customer on and subject to the terms of this Agreement.
4.2 OPEX shall use commercially reasonable endeavours to make the Subscription Services available in accordance with the Service Level Agreement.
4.3 OPEX will, as part of the Subscription Services and at no additional cost to the Customer, provide the Customer with OPEX's standard customer support services during Normal Business Hours and shall use reasonable endeavours to do so in accordance with the Service Level Agreement.
4.4 The undertakings at clauses 4.2 and 4.3 shall not apply to the extent of any non-conformance which is caused by use of the Subscription Services contrary to OPEX's instructions and/or the Documentation, or modification or alteration of the Subscription Services by any party other than OPEX or OPEX's duly authorised contractors or agents. If the Subscription Services do not conform with the undertakings in clauses 4.2 and 4.3, OPEX shall, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance in accordance with the Service Level Agreement. Such correction or substitution constitutes the Customer's sole and exclusive remedy for any breach of the undertakings set out in clauses 4.2 and 4.3.
5 DATA PROTECTION
Save in respect of the email addresses and usernames for the Authorised Users, the Customer agrees not to provide or make available any personal data to OPEX in connection with this Agreement. As such, the parties agree that each party shall process the contact details for each party’s authorised representatives and Authorised Users (as applicable) as an independent controller in relation to this Agreement and shall be subject to and responsible for complying with the obligations imposed on a controller under all applicable data protection laws and regulations, including the EU General Data Protection Regulation and UK General Data Protection Regulation.
6 OPEX’S OBLIGATIONS
(a) does not warrant that:
(i) the Customer's use of the Subscription Services will be uninterrupted or error-free; or
(ii) the Software or the Subscription Services will be free from Vulnerabilities or Viruses,
(b) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Subscription Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
6.2 OPEX warrants that it has and shall maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this Agreement.
6.3 The Customer acknowledges its responsibility to retain a copy of the Customer Data and Outputs and OPEX shall not be required to restore, rebuild or otherwise recover or recreate the Customer Data or the Outputs should it be lost or damaged. In the event of any loss or damage to Customer Data or Outputs, the Customer’s sole and exclusive remedy is to resubmit the Customer Data to the Platform for the purpose of using the Subscription Services.
7 CUSTOMER'S OBLIGATIONS
7.1 The Customer shall:
(a) provide OPEX with:
(i) all necessary co-operation in relation to this Agreement; and
(ii) all necessary access to such information as may be required by OPEX;
in order to provide the Subscription Services, including but not limited to Customer Data, security access information and the Implementation Services;
(b) without affecting its other obligations under this Agreement, comply with Applicable Law with respect to its activities under this Agreement;
(c) carry out all other Customer obligations and responsibilities set out in this Agreement in a timely and efficient manner. In the event of any delays in the Customer's provision of such assistance as agreed by the parties, OPEX may adjust any agreed timetable or delivery schedule as reasonably necessary;
(d) ensure that the Authorised Users use the Subscription Services and the Documentation in accordance with the terms and conditions of this Agreement and any instructions given by OPEX to the Customer and shall be responsible for any Authorised User's breach of this Agreement;
(e) obtain and shall maintain all necessary licences, consents, and permissions necessary for OPEX, its contractors and agents to perform their obligations under this Agreement, including the Subscription Services;
(f) ensure that its network and systems comply with the relevant specifications provided by OPEX from time to time; and
(g) be, to the extent permitted by law and except as otherwise expressly provided in this Agreement, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to OPEX's data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer's network connections or telecommunications links or caused by the internet.
8 CHARGES AND PAYMENT
8.1 The Customer shall pay the Fees to OPEX for the User Subscriptions in accordance with this clause 8 and the Cover Sheet.
8.2 In the event that the Customer terminates this Agreement prior to the expiry of an Initial Subscription Term or Renewal Period, as applicable, other than in accordance with the terms of this Agreement, the Customer shall immediately pay to OPEX all Fees due and payable by the Customer for the Initial Subscription Term or Renewal Period, as applicable.
8.3 OPEX shall invoice the Customer on the Effective Date for the Fees. In respect to any Renewal Periods, OPEX shall invoice the Customer for such Renewal Period(s) on the starting date of that Renewal Period.
8.4 The Customer shall pay invoices:
(a) within thirty (30) days of receipt of the invoice; and
(b) in full and cleared funds to the bank account nominated in writing by OPEX.
8.5 If OPEX has not received payment within thirty (30) days after the due date, and without prejudice to any other rights and remedies of OPEX:
(a) OPEX may, without liability to the Customer, disable the Customer's password, account and access to all or part of the Subscription Services and OPEX shall be under no obligation to provide any or all of the Subscription Services while the invoice(s) concerned remain unpaid; and
(b) interest shall accrue on a daily basis on such due amounts at an annual rate equal to 4% over the then current base lending rate of OPEX’s bank account in the UK from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
8.6 All amounts and fees stated or referred to in this Agreement:
(a) shall be payable in pounds sterling;
(b) are non-cancellable and non-refundable;
(c) are exclusive of value added tax, which shall be added to OPEX’s invoice(s) at the appropriate rate.
8.7 If any withholding tax is required to be paid over to any tax authority in connection with this Agreement, then the amount payable to OPEX under this Agreement shall be increased by an amount that shall yield to OPEX the same amount it would have received had no withholding tax been paid. The Customer shall apply the provisions of any relevant tax treaties so as to exempt or reduce any withholding tax.
8.8 The Customer may, from time to time during any Subscription Term, purchase additional User Subscriptions in excess of the number set out in the Cover Sheet at a price to be agreed between the parties and OPEX shall grant access to the Services and the Documentation to such additional Authorised Users in accordance with the provisions of this Agreement. For the avoidance of doubt, OPEX cannot reduce the number of User Subscriptions during the Subscription Term.
8.9 No later than forty-five (45) days prior to expiry of the Subscription Term, OPEX shall notify the Customer of the Fees that shall apply from the start of a Renewal Period.
9 INTELLECTUAL PROPERTY RIGHTS
9.1 The Customer acknowledges and agrees that OPEX and/or its licensors own all Intellectual Property Rights in the Subscription Services, the Documentation, any Customisation Services and the Outputs.
9.2 Except as expressly stated herein, the Customer shall not, by virtue of this Agreement, obtain or claim any right, title or interest in or to any of the Intellectual Property Rights in the Software, Documentation, Customisation Services and the Outputs.
9.3 If, notwithstanding clause 9.2, the Customer derives any right, title or interest in or to any of the Intellectual Property Rights in the Software, Documentation, Customisation Services or Outputs, the Customer shall promptly and at no cost to OPEX assign all such right, title or interest to OPEX with full title guarantee and shall execute all documents and perform all acts required by OPEX to vest such Intellectual Property Rights in OPEX absolutely and free from encumbrances.
9.4 The Customer hereby grants to OPEX during the Term, a non-exclusive, royalty-free, worldwide licence to use the Customer Data and any feedback provided by the Customer to OPEX for the purposes of providing the Subscription Services to the Customer under this Agreement.
9.5 The Customer hereby grants to OPEX a non-exclusive, royalty-free, irrevocable, perpetual, worldwide licence to use the Aggregate Data for the purposes of (i) improving and/or enhancing the Software and/or the Subscription Services, (ii) developing new services, products and functionalities, and/or (iii) benchmarking against services delivered to other customers.
9.6 OPEX hereby grants to the Customer a non-exclusive, non-transferable right, non-sublicensable, limited licence to use, during the Subscription Term, the Outputs and the Customisation Services in the Territory for its internal business purposes and as otherwise agreed between the parties in writing.
10.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under this Agreement. A party's Confidential Information shall not be deemed to include information that:
(a) is or becomes publicly known other than through any act or omission of the receiving party;
(b) was in the other party's lawful possession before the disclosure;
(c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
(d) is independently developed by the receiving party, which independent development can be shown by written evidence.
10.2 Subject to clause 10.4, each party shall hold the other's Confidential Information in confidence and not make the other's Confidential Information available to any third party, or use the other's Confidential Information for any purpose other than the implementation of this Agreement.
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 this Agreement and shall apply the same measures to protect the other’s Confidential Information as it does with its own Confidential Information.
10.4 A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 10.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
10.5 No party shall make, or permit any person to make, any public announcement concerning this Agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
11.1 The Customer shall indemnify OPEX, and keep OPEX indemnified, against any and all losses, liabilities, claims, demands, damages, costs and expenses (including legal costs and expenses (calculated on an indemnity basis)) suffered or incurred by OPEX arising out of or in connection with:
(a) the Customer’s exercise of its rights granted under this Agreement;
(b) any third party claim against OPEX alleging that the Customer Data or the Customer’s use of the Customer Data infringes that third party's Intellectual Property Rights; or
(c) the Customer’s breach or negligent performance or non-performance of this Agreement.
11.2 Subject to clauses 11.3 and 11.4 and subject always to the Customer’s strict compliance with the terms and conditions of this Agreement, OPEX undertakes at its own expense to defend the Customer or, at its option, settle any claim by a third party that the Customer’s use of the Subscription Services, Documentation, Implementation Services or Customisation Services (save in respect of the Customer Data or the Outputs) infringes that third party’s Intellectual Property Rights and shall be responsible for any reasonable damages, costs and expenses awarded against the Customer as a result of or in connection with any such claim.
11.3 If any third party makes a claim as referred to in clause 11.2, or notifies an intention to make such a claim against the Customer, OPEX’s obligations under clause 11.2 are conditional on the Customer:
(a) as soon as reasonably practicable, giving written notice of the claim to OPEX, specifying the nature of the claim in reasonable detail;
(b) not making an admission of liability, agreement or compromise in relation to the claim without the prior written consent of OPEX (such consent not to be unreasonably conditioned, withheld or delayed);
(c) giving OPEX and its professional advisers prompt and reasonable access to any relevant documents and records within the Customer’s power or control to examine and take copies of them and where reasonably requested, access to the Customer’s officers, directors, employees, agents, representatives or advisers, in each case, for the purpose of assessing, defending and/or settling the claim; and
(d) taking such action as OPEX may reasonably requested to avoid, dispute, compromise or defend the claim.
11.4 For the avoidance of doubt, OPEX shall not accept any responsibility or liability for any claim by a third party that the Customer Data or the Outputs or the Customer’s use of the Customer Data or the Outputs infringes that third party's Intellectual Property Rights.
12 LIMITATION OF LIABILITY
12.1 Except as expressly and specifically provided in this Agreement:
(a) the Customer assumes sole responsibility for results obtained from the use of the Subscription Services and the Documentation by the Customer, and for conclusions drawn from such use. OPEX shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to OPEX by the Customer in connection with the Subscription Services, or any actions taken by OPEX at the Customer's direction;
(b) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by Applicable Law, excluded from this Agreement; and
(c) the Subscription Services and the Documentation are provided to the Customer on an "as is" basis
12.2 Nothing in this Agreement shall limit either party’s liability in respect of any claims:
(a) for death or personal injury caused by the negligence of such party;
(b) resulting from any fraud including fraudulent misrepresentation made by such party;
(c) resulting from the wilful default of such party; or
(d) for which liability may not otherwise lawfully be limited or excluded.
12.3 Subject to clause 12.2, neither party shall be liable to the other party (whether in contract, tort including negligence or otherwise) for any:
(a) loss of profits or revenue (whether direct or indirect);
(b) loss of opportunity or anticipated savings (whether direct or indirect);
(c) loss of goodwill or reputation (whether direct or indirect);
(d) loss or corruption of data (whether direct or indirect); or
(e) special, indirect or consequential loss or damage,
suffered by that other party.
12.4 Subject to clause 12.2, OPEX’s maximum aggregate liability to the Customer under or in connection with this Agreement (whether in contract, tort including negligence or otherwise) shall not exceed, in each Year, the amount of Fees paid or payable by the Customer in that Year assuming that the Agreement is not terminate in the Year whether or not it is actually terminated.
13 TERM AND TERMINATION
13.1 This Agreement shall, unless otherwise terminated as provided in this clause 13, commence on the Effective Date and shall continue for the Initial Subscription Term. Thereafter, this Agreement shall be automatically renewed for successive periods of twelve (12) months (each a "Renewal Period") unless either party notifies the other party of termination, in writing, at least thirty (30) days before the end of the Initial Subscription Term or any Renewal Period, as applicable, in which case this Agreement shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period.
13.2 Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other party if:
(a) the other party fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than thirty (30) days after being notified in writing to make such payment;
(b) the other party commits a material breach of any other term of this Agreement and (if such breach is remediable) fails to remedy that breach within a period of thirty (30) days after being notified in writing to do so; or
(c) the other party becomes or is declared insolvent, has a liquidator, receiver or administrative receiver appointed or passes a resolution for winding up (otherwise than for the purpose of a solvent amalgamation or reconstruction) or if a court having proper authority makes an order to that effect, enters into administration, is the subject of an administrative order or proposes to or enters into any voluntary arrangement with its creditors in the context of a potential liquidation or any events or circumstances analogous to any of the events described in this clause 13.2(c) occur in any applicable jurisdiction.
13.3 On termination of this Agreement for any reason:
(a) the licences granted by OPEX to the Customer under clause 9.6 shall immediately terminate and the Customer shall immediately cease all use of the Subscription Services and/or the Documentation;
(b) each party shall return and make no further use of any equipment, property, documentation and other items (and all copies of them) belonging to the other party;
(c) OPEX may destroy or otherwise dispose of any of the Customer Data and the Outputs in its possession unless OPEX receives, no later than ten (10) Business Days after the effective date of the termination of this Agreement, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data and the Outputs. OPEX shall use reasonable commercial endeavours to deliver the back-up to the Customer within thirty (30) days of its receipt of such a written request provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer shall pay all reasonable expenses incurred by OPEX in returning or disposing of Customer Data and Outputs;
(d) any provision of this Agreement that expressly or by implication is intended to come into or continue in force or after termination or expiry of this Agreement shall remain in full force and effect, including: clause 1 (Interpretation), clause 3.5, clause 8 (Charges and Payment), clause 9.5, clause 10 (Confidentiality) and clause 24 (Governing law and Jurisdiction); and
(e) 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 FORCE MAJEURE
OPEX 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 OPEX or any other party), failure of a utility service or transport or telecommunications network, acts 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.
No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
17.1 If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Agreement.
17.2 If any provision or part-provision of this Agreement is deemed deleted under clause 17.1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
18 ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the parties relating to its subject matter and supersedes any previous agreements or arrangements between them relating to the same. Each party agrees that it has not entered into this Agreement in reliance on any representation, covenant, warranty or undertaking made or given by or on behalf of the other party except as expressly set out in this Agreement. Each party waives any claim or remedy or right in respect of any representation, covenant, warranty or undertaking made or given by or on behalf of the other party unless and to the extent that a claim lies for breach of this Agreement. However, nothing in this Agreement shall limit either Party’s liability for fraud, negligent misrepresentation or negligent misstatement.
19.1 The Customer shall not, without the prior written consent of OPEX, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
19.2 OPEX may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
20 NO PARTNERSHIP OR AGENCY
Nothing in this Agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
21 THIRD PARTY RIGHTS
This Agreement does not confer any rights on any person or party (other than the parties to this agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
22.1 This Agreement may be executed in any number of counterparts, each of which shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.
22.2 No counterpart shall be effective until each party has delivered to the other at least one executed counterpart.
23.1 Any notice required to be given under this Agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in this Agreement, or such other address as may have been notified by that party in writing for such purposes.
23.2 A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in Normal Business Hours, at 08:30am on the first Business Day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post.
24 GOVERNING LAW AND JURISDICTION
This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).
This Agreement has been entered into on the date stated on the Cover Sheet.