In this Agreement the following definitions will apply:
Additional Charges: any fee in addition to the Fees (excluding any applicable sales tax) payable by the Customer;
Additional Services: such additional services as OPL may agree to supply to the Customer from time to time;
Agreement: these terms and conditions;
Confidential Information: all information designated as such by either party in writing together with all other information relating to the business, affairs, plans, discussions, contacts, products, developments, trade secrets, know-how, personnel, customers, partners and customers of that party;
Commencement Date: the commencement date as agreed between the parties:
Data Protection Legislation: the General Data Protection Regulation ((EU) 2016/679) (GDPR) (whilst still applicable in the UK) and the Data Protection Act 2018 and any other national implementing laws, regulations and secondary legislation and any successor legislation;
Fees: the Fees (excluding any applicable sales tax) as agreed between the parties and payable in accordance with clause 9;
Intellectual Property Rights (IPR): patents, rights to inventions, copyright and related rights, moral rights, trade marks, trade names and domain names, rights in get-up, rights in goodwill or to sue for passing off, rights in designs, rights in computer software, database rights, rights in confidential information and any other intellectual property rights whether registered or unregistered and including all applications for such rights and all similar or equivalent rights which may now or in the future subsist in any part of the world;
OPL: the business acronym for “Our People, Limited” in the United Kingdom, and “Our People, Inc.” in the United States
OPL Software: the online cloud-based software as licenced to the Customer pursuant to the terms of this Agreement;
Location(s): the locations as agreed between the parties;
Personal data, controller, processor, data subject and Processing have the meanings respectively set out in the GDPR.
Services: the services package chosen by the Customer and detailed in the Service Agreement;
Term: the term as agreed between the parties.
2.0 Grant of Licence
2.1 Subject to the Customer complying with this Agreement, OPL grants to the Customer a non-exclusive and non-transferable licence for the duration of this Agreement to use the OPL Software to access the Services on the terms of this Agreement.
2.2 The Customer acknowledges and accepts that the licence granted pursuant to this Agreement is for the Customer’s organizational use.
2.3 Schedule 1 of this Agreement shall only apply where the Customer is a public sector organisation.
3.0 Permitted Use
3.1 The Customer shall:
3.1.1 Use the OPL Software for its own internal business purposes only;
3.1.2 Not transfer or distribute all or any part of the OPL Software to any other person or organisation;
3.1.3 Not make any alterations, modifications, or copies, to the OPL Software save as authorised by OPL;
3.1.4 Not decompile, reverse engineer or disassemble the OPL Software or any part without the express written consent of OPL;
3.2 The Customer shall fully co-operate with all enquiries from OPL relating to the OPL Software.
3.3 The Customer shall not use the OPL Software for any of the following:
3.3.1 The operation or promotion of any service or goods which are illegal;
3.3.2 Distributing and/or sharing of unauthorised data, viruses, Trojan horses or worms;
3.3.3 Any activity which violates or may violate the IPR of any third party or which is contrary to law.
4.0 Proprietary Rights
4.1 The Customer:
4.1.1 Will not acquire any IPR or other proprietary rights in the OPL Software;
4.1.2 Shall notify OPL immediately if the Customer becomes aware of any unauthorised access to, use or copying of any part of the OPL Software by any person.
5.0 OPL Obligations
5.1 OPL shall provide the Services in accordance with this Agreement.
5.2 OPL shall use its reasonable endeavours to carry out the Services in accordance with this Agreement
5.3 OPL shall carry out the Services in a professional, diligent and timely manner.
5.4 OPL shall not be liable for any delays to the supply of, or the performance or non-performance of the Services to the extent that such failure is caused by or resulting directly or indirectly from any failure by the Customer to perform its obligations under this Agreement or the act or omission of a third party other than OPL or its sub-contractors.
5.5 OPL shall make available periodic updates to the OPL Software and shall make these updates available to the Customer once they become available.
6.0 Customer Obligations
6.1 The Customer shall:
6.1.1 Pay the Fees and any Additional Charges as agreed between the parties pursuant to clause 9
6.1.2 Report to OPL all problems or errors in respect of the OPL Software as soon as reasonably possible;
6.1.3 Comply with this Agreement.
7.0 System Uptime and Maintenance Windows
7.1 OPL shall provide the Customer with system uptime and performance reporting via an online service.
7.2 OPL shall be entitled to carry out system maintenance work and updates, and OPL will make every effort to apply such updates during a maintenance window from 2am to 5am GMT. OPL may conduct any emergency and/or urgent maintenance work without notice to the Customer and at such times as it feels reasonably necessary.
8.0 Payment Terms
8.1 The Customer will pay to OPL the Fees and any Additional Charges which fall due under this Agreement without set off or deduction as agreed between the parties.
8.2 Payment of the Fee and/or Additional Charges shall be made no later than 30 days of the date of OPL's invoice.
8.3 In the event that the Customer fails to make payment of any Fees and/or Additional Charges by the due date, OPL shall be entitled to suspend the provision of any or all of the Services and/or, at OPL's discretion, terminate the Agreement provided that it has given the Customer at least 14 days written notice.
9.1 Customer may cancel the service at any time, for any reason or no reason, by providing OPL with an advanced written ninety (90) day cancellation notice.
9.2 There are NO refunds for any and all fees paid to OPL including subscription fees, sales and use taxes, implementation fees, and professional service fees.
10.0 Data Protection
10.1. Both parties will comply with the applicable requirements of the GDPR and Data Protection Legislation.
10.2. The parties acknowledge that the Customer is the controller and OPL is the processor (as defined by the Data Protection Legislation) and shall both ensure that a register is completed as required by the Data Protection Legislation.
10.3. The Customer will ensure that it has the necessary consents or has complied with another processing condition and has the appropriate notices and privacy policies in place to enable the lawful transfer of personal data to OPL for the duration and for the purposes of the services detailed above.
10.4. OPL shall:
10.4.1 Act only on the Customer’s written instructions;
10.4.2 Have in place appropriate technical and organisational security measures against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data. Such measures shall be appropriate to the harm that might result from the unauthorised or unlawful processing;
10.4.3 Ensure any staff who have access to the personal data are obliged to keep it confidential;
10.4.4 Assist the Customer (if requested) to respond to an employee, or an individual’s request to enforce their rights of subject access, rectification, erasure, the right to be forgotten, and any other rights conferred by the GDPR / Data Protection Legislation;
10.4.5 Assist the Customer (if requested) with respect to security, breach notifications, impact assessments and any investigations by a supervisory Customer;
10.4.6 Notify the Customer without undue delay in the event of a data security breach and assist with any investigations;
10.4.7 Delete or return all personal data as requested at the end of the agreement; and
10.4.8 Submit to audits and inspections and provide the Customer with the necessary to ensure that both parties are complying with their obligations under the GDPR / Data Protection Legislation and inform the Customer immediately if asked to do something infringing the Data Protection Legislation or other law of the EU or a member state.
10.5 OPL shall not appoint a third-party sub-processor without giving prior written notice. OPL shall ensure that any third-party processor will enter into an agreement with the same or substantially similar terms in relation to the Data Protection Legislation.
10.6 If this agreement will involve or require a transfer of any personal data from one country to a country outside the country of origin and if required by applicable law, OPL will enter into a data transfer agreement that is consistent with the requirements of applicable law and ensures that:
10.6.1 The individuals have enforceable rights and effective legal remedies in relation to any transferred personal data; and
10.6.2 The third-party processor has adequate levels of protection in relation to any personal data that is transferred.
11.1 Each Party undertakes to the other to treat as confidential and keep secret all Confidential Information contained in or otherwise received from the other in connection with this Agreement and shall not use the same for purposes other than in carrying out their respective rights and obligations hereunder.
11.2 If the Customer is a public sector body, this clause shall not apply, and the provisions of Schedule 1 shall apply instead.
11.3 This clause 11 will continue in force notwithstanding the termination of this Agreement for any reason.
12.1 OPL warrants that the OPL Software when properly used will provide the facilities and functions and perform substantially as described in the materials provided by OPL and as detailed in this Agreement.
12.2 OPL shall use reasonable endeavours to provide the Services.
12.3 OPL does not provide any warranties whatsoever in respect of any third-party hardware (including the Equipment) and/or software.
12.4 OPL does not warrant that the operation of the Software will be uninterrupted or error-free or that the Software will be fit for the Customer’s purpose.
12.5 OPL's obligation and the Customer’s exclusive remedy under the warranty given in clause 12.1 is limited to either:
12.5.1 OPL correcting the service so that it performs substantially in accordance with the OPL product documentation, or;
12.5.2 The Customer may elect to exercise its right to Cancel as per Section 9 of this agreement
13.0 Limitation of liability
13.1 The Customer is responsible for the consequences of any use of the OPL Software. OPL will not be liable for any indirect or consequential loss, damage, cost or expense of any kind whatever and however caused whether arising under contract, tort or otherwise, including (without limitation) loss of production, loss of or corruption to data or information, loss of profits or of contracts, loss of operation time and loss of goodwill or anticipated savings.
13.2 OPL accepts liability for any matter which is a result from the gross negligence or misconduct of OPL and its employees.
13.3 Without prejudice to clause 13.2, OPL's total liability (whether in contract, tort, including negligence, or otherwise) under or in connection with this Agreement will not exceed the aggregate of the Fees paid by the Customer to OPL for the 12 months prior to the date when the claim arose.
14.1 Indemnity by OPL. OPL will defend, indemnify and hold Customer harmless from all claims, losses, demands, liabilities, damages or judgments awarded by a court of appropriate and final jurisdiction, or any settlements, including all reasonable costs and expenses related thereto (including reasonable attorneys' fees), arising out of
14.1.1 Any third party claims that the OPL Service or the OPL Software infringes or misappropriates any presently existing patent, copyright, trademark or trade secret held by such third party in the United States or United Kingdom;
14.1.2 A breach by OPL of any of its obligations, representations, warranties or covenants contained in this Agreement
14.2 Indemnity by Customer. Customer shall indemnify, defend and hold OPL harmless from all claims, losses, demands, liabilities, judgments, or damages awarded by a court of appropriate and final jurisdiction, including all reasonable costs and expenses related thereto (including reasonable attorneys' fees) arising from or relating to:
14.2.1 Use of the OPL Service or OPL Software a breach by Customer of any of Customer’s obligations, representations, warranties or covenants contained in this Agreement;
14.2.2 Any claim alleging that Client’s Data, or the use of Client’s Data pursuant to this Agreement, infringes, misappropriates or violates the intellectual property or any other rights of a third party or otherwise causes harm to a third party.
15.0 Term and Termination
15.1 Subject to the remainder of this clause 14, this Agreement shall commence on the Commencement Date and continue in full force and effect for the Term and then until terminated pursuant to this Agreement.
15.2 The Term shall automatically extend at the end of the Term for a further period of 12 months.
15.3 The Customer or OPL may terminate this Agreement immediately if the other:
15.3.1 Expressly or impliedly repudiates this Agreement by refusing or threatening to refuse to comply with any of the provisions of this Agreement; or
15.3.2 Fails to comply with any of the provisions of this Agreement and (in the case of a failure capable of being remedied) does not rectify such non-compliance within 14 working days of written notice from the non-defaulting party of it.
15.4 OPL may, at any time, terminate this Agreement immediately if the Customer commits any breach of applicable laws.
15.5 Without prejudice to its rights hereunder, OPL shall be entitled to suspend the provision of the Services (or any of them) and/or (at OPL's discretion) terminate the Agreement if the Customer fails to carry out its obligations hereunder, provided that it has given at least 14 days written notice.
15.6 Without prejudice to the remainder of this clause, OPL shall be entitled to terminate this Agreement at any time without cause. OPL shall whenever reasonably possible give the Customer no less than ninety (90) day notice of its intention to terminate this Agreement. In the event that OPL elects to cancel this agreement, the Customer shall be entitle to a pro-rated refund of any unused pre-paid fees paid to OPL.
16.0 Post Termination
16.1 On termination of this Agreement:
16.1.1 The licence to use the OPL Software and the provision of the Services will automatically cease; and
16.1.2 Any and all customer data held in the OPL system shall be removed from all primary and backup servers within 60 days of termination.
17.1 Neither party will be liable for any delay in performing or failure to perform any of its obligations (other than a payment obligation) under this Agreement due to any cause outside its reasonable control.
17.2 The Customer may not assign, loan, lease or otherwise transfer its rights or obligations under this Agreement without the prior written consent of OPL.
17.3 This Agreement is the entire agreement between the parties relating to the subject matter of the Agreement and supersedes all previous communications, representations and arrangements, written or oral.
17.4 If any court or competent Customer finds that any provision of this Agreement is invalid, illegal or unenforceable, that provision shall be deemed to be deleted, and the validity and enforceability of the other provisions of this Agreement shall not be affected.
17.5 In the unlikely event we end up in a legal dispute, OPL and the Customer agree to resolve the matter in Delaware courts using the State of Delaware law. If your business is based in the United Kingdom, the parties agree to address any legal matter based on the law of England and Wales, and the courts of England and Wales.
PUBLIC SECTOR SCHEDULE
1.0 Schedule 2 Definitions
Bribery Act: the Bribery Act 2010 and any subordinate legislation made under that Act from time to time together with any guidance or codes of practice issued by the relevant government department concerning the legislation;
EIRs: the Environmental Information Regulations 2004 (SI 2004/3391) together with any guidance and/or codes of practice issued by the Information Commissioner or relevant government department in relation to such regulations;
FOIA: the Freedom of Information Act 2000, and any subordinate legislation made under the Act from time to time, together with any guidance and/or codes of practice issued by the Information Commissioner or relevant government department in relation to such legislation;
Information: has the meaning given under section 84 of FOIA;
Prohibited Act: the following constitute Prohibited Acts:
(a) to directly or indirectly offer, promise or give any person working for or engaged by the Authority a financial or other advantage to:
(i) induce that person to perform improperly a relevant function or activity; or
(ii) reward that person for improper performance of a relevant function or activity;
(iii)to directly or indirectly request, agree to receive or accept any financial or other advantage as an inducement or a reward for improper performance of a relevant function or activity in connection with this agreement;
(b) committing any offence
(i) under the Bribery Act;
(ii) under legislation or common law concerning fraudulent acts;
(iii) defrauding, attempting to defraud or conspiring to defraud the Authority.
(c) any activity, practice or conduct which would constitute one of the offences listed under clause 1.1(c), if such activity, practice or conduct had been carried out in the UK;
Request for Information: a request for information or an apparent request under the Code of Practice on Access to Government Information, FOIA or the EIRs;
Transparency Code: means the Local Government Transparency Code 2015 or such other replacement code or Law relating to the publication of information held by Local Government;
2.0 Freedom of information and Transparency
2.1 The parties acknowledge that the Customer is subject to the requirements of the FOIA, the EIRs and the Transparency Code. OPL shall:
2.1.1 provide all necessary assistance and cooperation as reasonably requested by the Customer to enable the Customer to comply with its obligations under the FOIA, EIRs and the Transparency Code;
2.1.2 transfer to the Customer all Requests for Information relating to this Agreement that it receives as soon as practicable and in any event within 5 Working Days of receipt of the Customers request;
2.1.3 provide the Customer with a copy of all Information within the scope of the Request For Information which is in its possession or control of OPL within 5 Working Days of receipt of the Customer’s request
2.1.4 not respond directly to a Request For Information unless authorised in writing to do so by the Customer.
2.2 OPL acknowledges that the Customer may be required under the FOIA, EIRs and the Transparency Code to disclose Information without consulting or obtaining consent from OPL. The Customer shall take all reasonable steps to notify OPL of a Request For Information to the extent that it is permissible and reasonably practical for it to do so but (notwithstanding any other provision in this Agreement) the Customer shall be responsible for determining in its absolute discretion whether any information is exempt from disclosure in accordance with the FOIA and/or the EIRs and/or the Transparency Code.
3.1 Subject to paragraph 2.0 of this Schedule above, the parties shall keep confidential all matters relating to this Agreement.
3.2 This paragraph 3.0 of this Schedule shall not apply to any disclosure of information:
3.2.1 required by any applicable law
3.2.2 where a party can demonstrate that such information is already generally available and in the public domain otherwise than as a result of a breach of this Agreement;
3.2.3 on a confidential basis, to its professional advisers;
3.2.4 to its auditors for the purposes of regulatory requirements;
3.2.5 which is already lawfully in the possession of the receiving party, prior to its disclosure by the disclosing party;
3.2.6 by the Customer to any department, office or agency of the Government; and
3.2.7 by the Customer relating to this agreement and in respect of which the OPL has given its prior written consent to disclosure.
4.0 Prevention of bribery
4.1 OPL represents and warrants that neither it, nor to the best of its knowledge any OPL's employees, have at any time prior to the Commencement Date:
4.1.1 committed a Prohibited Act or been formally notified that it is subject to an investigation or prosecution which relates to an alleged Prohibited Act; and/or been listed by any government department or agency as being debarred, suspended, proposed for suspension or debarment, or otherwise ineligible for participation in government procurement programmes or contracts on the grounds of a Prohibited Act.
4.2 OPL shall not during the term of this agreement:
4.2.1 commit a Prohibited Act; and/or
4.2.2 do or suffer anything to be done which would cause the Customer or any of the Customer's employees, consultants, contractors, sub-contractors or agents to contravene any of the Bribery Act or otherwise incur any liability in relation to the Bribery Act.
4.3 OPL shall during the term of this agreement:
4.3.1 establish, maintain and enforce, policies and procedures which are adequate to ensure compliance with the Bribery Act and prevent the occurrence of a Prohibited Act; and
4.3.2 keep appropriate records of its compliance with its obligations under this paragraph 4.0 and make such records available to the Customer on request.
4.3.3 OPL shall notify the Customer in writing if it becomes aware of any breach of this paragraph 4.0 or has reason to believe that it has or any of the OPL's Personnel have:
(a) been subject to an investigation or prosecution which relates to an alleged Prohibited Act;
(b) been listed by any government department or agency as being debarred, suspended, proposed for suspension or debarment, or otherwise ineligible for participation in government procurement programmes or contracts on the grounds of a Prohibited Act; and/or
(c) received a request or demand for any undue financial or other advantage of any kind in connection with the performance of this agreement or otherwise suspects that any person or party directly or indirectly connected with this agreement has committed or attempted to commit a Prohibited Act.