OnDemand Terms and Conditionsv1.0 November 2018
ONAPP ONDEMAND TERMS (“OTC”) V1
By executing an OnApp Order Form (“Order”) with OnApp Limited of The Cooperage, Old Truman Brewery, 91 Brick Lane, London E1 6QL, (“OnApp”, “we”, “us” or “our”), that references this OTC, the entity identified in such Order (together with each corporate entity controlled by it, or which controls it or which is under common control with it, if any, where ‘control’ means having the right to vote more than fifty per cent of the issued voting shares), (collectively “you“, “your”) agrees to the OTC which, together with any other documents incorporated by reference into such order and/or this OTC, will exclusively govern such Order (collectively “Agreement”). The Agreement does not apply to any other OnApp services that are described in an Order as being subject to other, or different, terms.
1.1 Where used in this OTC, the following capitalised words and phrases shall have the meaning given to them below:
“Documentation” means (i) the online documents, user guides and specifications that described the permitted usage and functionality of the OnDemand Services, as set out at https://onapp.com/ondemand/documents, as may be updated by us from time to time; (ii) the Support Policy; and (iii) the AUP;
“End Users” means (i) your employees and agents that access and use the OnDemand Services on your behalf; and (ii) your customers and such other entities that you allow to access and use your User Content and/or the OnDemand Services;
“Force Majeure Event” means an event or sequence of events beyond a party’s reasonable control (which could not reasonably have been anticipated and avoided by a party) preventing or delaying it from performing its obligations hereunder, including without limitation war, revolution, terrorism, riot or civil commotion, or reasonable precautions against any such; strikes, lock outs or other industrial action, whether of the affected party’s own employees or others; blockage or embargo; acts of or restrictions imposed by government or public authority; explosion, fire, corrosion, flood, natural disaster, or adverse weather conditions. A Force Majeure Event does not include, without limitation, inability to pay, mechanical difficulties, shortage or increase of price of raw materials, over-commitment or market or other circumstances which may make the terms of this Agreement unattractive to a party;
“Hosting Partner” means the third party supplier or third party suppliers that OnApp has selected to host the OnDemand Services on its behalf.;
“OnDemand Service” means the OnApp OnDemand Service provided by OnApp to you as identified in the Order and as further described in the Documentation; and
“Term” means the collective reference to the entire duration of this Agreement covering as applicable and unless terminated earlier in accordance with its terms: (i) the period between the Commencement Date and the Service Activation Date; (ii) the Initial Period; and (iii) thereafter each Renewal Period.
“Third Party Services” means any online or offline product, service, software provided by you or third party, which interoperates with the OnDemand Service.
1.2 Where capitalised words and phrases are used in this OTC but not defined, such capitalised words and phrases shall be given the meaning ascribed to them in the relevant part of this Agreement.
2. AGREEMENT STRUCTURE
2.1. You may purchase the OnDemand Services, governed by the Agreement by executing a written Order, that is also executed by us. OnApp shall be free to accept or decline each Order in its own discretion.
2.2. In addition to the terms set out in these OTC, the following are expressly incorporated into this Agreement (and each Order entered pursuant to this OTC) by reference:
2.2.1 The OnApp General Terms and Conditions of Trading, located at https://onapp.com/legal/archive/onapp-general-terms-conditions-trading-v2-0/ (“GTCs”), subject to clause 2.3 below;
2.2.2 The OnApp Acceptable Use Policy, as the same may be amended reasonably by us from time to time, a current copy of which is located at https://www.onapp.com/legal/aup/ (“AUP”);
2.2.3 The OnApp OnDemand Support Policy, which is located at https://onapp.com/legal/onapp-ondemand-support-policy/ (“Support Policy”);
2.2.4 The OnApp Data Processing Terms, as the same may be amended reasonably by us from time to time, a current copy of which is located at https://onapp.com/legal/onapp-data-processing-terms/ (“DPA”); and
2.2.5 The OnApp Information and Security Policy, as the same may be amended reasonably by us from time to time, a current copy of which is located at https://www.onapp.com/legal/info-sec/ (“InfoSec Policy”).
2.3 Where the GTCs are incorporated into this OTC as described in clause 2.2, the following variations to GTCs shall apply:
2.3.1 all references to “OnApp Services” and “OnApp Software” in the GTCs shall be interpreted as being references to the OnDemand Services;
2.3.2 clause 2 of the GTCs (Commencement and Duration and Termination) shall not apply; and
2.3.3 clause 3 of the GTCs (Fees) shall not apply.
2.4. Unless the Order specifically states otherwise, if there is an inconsistency between any of the documents comprising the Agreement, the following, descending order of precedence shall apply: (i) the Order; (ii) this OTC; (iii) the GTCs; (iv) the InfoSec Policy; (v) the AUP; (vi) the DPA; and (v) the Support Policy.
3. TERM AND FEES
3.1 This Agreement shall become legally binding on the date of the last signature of the Order (“Commencement Date”). Your first invoice will be issued on the Commencement Date and we will prepare and configure your OnDemand Service once you have paid this first invoice in accordance with this Agreement. The date the OnDemand Services are made available for your use is the “Service Activation Date”, and we will confirm the Service Activation Date to you in writing. We target the Service Activation Date to be within 72 hours of our receipt of Fees from you in full in respect of the first invoice. Following the occurrence of the Service Activation Date and, unless earlier lawfully terminated, the Order shall thereafter continue for a period of one month (or such other term set out in the Order) from the Service Activation Date (“Initial Period”), and, unless written notice of non-renewal is provided in accordance with clause 2, shall automatically renew for further one month periods or as otherwise stated on the applicable Order (“Renewal Term”). When fully executed, each Order shall constitute a separate Agreement independent of any other Agreements created by any other Orders.
3.2 Without limiting any other right either of us may have under the Agreement, either of us may terminate this Agreement for convenience at the end of the then-current billing month by giving the other party written notice at least 7 days prior to the expiry of the relevant billing month. If such notice is not received by OnApp at least 7 days prior to the expiry of the then-current billing month, we will invoice, and you agree to pay for the next billing month and a further Renewal Term will apply as described in clause 1. You will be invoiced for Renewal Terms 7 days prior to the commencement of that Renewal Term
3.3 As consideration for the supply of the OnDemand Services by or on behalf of OnApp you shall pay OnApp the agreed fees in accordance with the applicable Order at the times and in the manner specified in it (“Fees”). Fees for OnDemand Services are payable by you in advance unless otherwise stated on the Order. Where additional usage charges apply as described in this Agreement (e.g. additional bandwidth charges), the same will be invoiced to you monthly in arrears as part of your next invoice for the OnDemand Service (or upon expiry or termination of this Agreement, a further final invoice). You agree to pay the undisputed portion of any disputed invoice pending resolution of any dispute. A dispute over one invoice shall not entitle you to delay or dispute payment in respect of another invoice or OnApp service or Agreement. The Fees owed to OnApp by you shall not be contingent upon your ability to collect any amounts from your own customers.
3.4 Except where agreed otherwise in an Order, we may amend the Fees applicable to your Order on 90 days’ written notice. Following expiry of such notice, OnApp may then amend its Fees effective upon the next renewal of an expiring of the Initial Period or the current Renewal Term (as applicable).
3.5 In the event that we terminate an Agreement for your breach or insolvency we shall be entitled to invoice immediately for all the minimum Fees that would have been payable during the then remaining balance of the period of each Order that forms part of that Agreement.
3.6 All amounts payable by you are exclusive of all sales taxes, use, excise, import or export, value added, governmental permit fees, license fees, and customs. If you are legally obliged under applicable tax law to withhold any amount of any payment to OnApp, then the amount of the payment to OnApp shall be automatically increased to totally offset such tax, so that the amount actually remitted to OnApp, net of all taxes, equals the amount invoiced or otherwise due. You will promptly furnish OnApp with the official receipt of payment of these taxes to the appropriate taxing authority. You shall provide OnApp with a certificate of exemption acceptable to an applicable taxing authority, where required.
3.7 All payments made by you must be received by OnApp in cleared funds by the due date set out in the relevant Order for which purpose time shall be of the essence. No payments due to OnApp shall be subject to any setoff, counterclaim, withholding or deduction except as is mandatory under applicable law and subject to the other provisions of the applicable Agreement. OnApp shall be entitled to set off and cross-collateralise between each of your balances if more than one. If you do not pay the invoices when due, OnApp may charge interest at one percent (1%) per month on the unpaid balance between the date due and the date paid.
4.1 Your OnDemand Service will be identified in the relevant Order. You may, at any time, add the units of OnDemand Service set out in the Order by agreeing the relevant change with your OnApp account manager. Any resulting change to your fees will be pro-rated for the remainder of the relevant billing month and will then take effect in full from the start of your next billing month.
4.2 Subject to the terms of this Agreement, we shall:
4.2.1 provide the OnDemand Service to you (and your authorised users set out in the Order) on the terms of this Agreement;
4.2.2 materially comply with the Documentation in performing our obligations under this Agreement; and
4.2.3 if set out in the Order, provide the support services described in the relevant Order.
4.3 You may, at any time, request different OnApp services, including Professional Services, which will be subject to different terms and additional charges.
4.4 Without requiring your written consent, OnApp may change, discontinue, or remove the Documentation and/or OnDemand Services (or any part thereof) or change or remove features or functionality from time to time provided that such alterations do not materially diminish the functionality of your ordered OnDemand Services. OnApp will notify you of any material change to, or discontinuation of, the OnDemand Services.
5. LICENCE AND RESTRICTIONS
5.1 OnApp hereby grants you a limited, non-transferable, non-exclusive, non-sublicensable licence for the Term to use the OnDemand Services and the Documentation for (i) your internal business purposes; (ii) for providing services to your End Users; and (iii) (where applicable) for such other purposes described in the Order, subject in each case to the terms of this Agreement.
5.2 You shall ensure that all you:
5.2.1 use the OnDemand Services in accordance with the Documentation and the terms of this Agreement;
5.2.2 keep confidential and not share with any party (other than your employees and agents) any login details, password or other form of access credentials (“Access Credentials”) that it is provided to facilitate your direct access to the OnDemand Services;
5.2.3 maintain reasonable security measures to prevent unauthorised access to the OnDemand Services via your Access Credentials; and
5.2.4 notify OnApp immediately in the event you are aware of or suspect any unauthorised access to the OnDemand Services.
5.3 You shall be responsible for all acts and omissions of your End Users during their use of the OnDemand Services, and any such act or omission that would breach the terms of this Agreement had the same been undertaken by you, shall be deemed to be a breach by you of the relevant provision(s) of this Agreement.
5.4 You shall use due care and diligence to avoid introducing any software virus or other contaminant (including any bugs, worms, logic bombs, trojan horses or any other self propagating or other such program) that may infect or cause damage to the OnDemand Services, or OnApp’s systems or otherwise disrupt the provision of the OnDemand Services.
5.5 We reserve the right to monitor usage of your Access Credentials during the Term for the purpose of ensuring compliance with this Agreement. If any such monitoring reveals that any Access Credentials have been used in breach of this agreement, we may immediately:
5.5.1 disable your access to the OnDemand Services; and/or
5.5.2 invoice you for the additional Fees that would have been payable under the Order had such usage been authorised in accordance with the terms of this Agreement.
5.6 Except as expressly permitted by an applicable Agreement, you shall not: (i) attempt to copy, modify, create derivative works from, republish, display, make available by any means, or distribute all or any portion of the OnDemand Services and/or related Documentation (as applicable) in any form or media; (ii) compile, disassemble, reverse engineer or otherwise reduce to human-readable form all or any part of the OnDemand Services, except as permitted by applicable law; (ii) access all or any part of the OnDemand Services in order to build a product or service which uses or competes with it; or (iv) save as expressly permitted otherwise by the Agreement, license, sell, rent, lease, novate, assign or otherwise transfer any OnDemand Services and/or their related documentation, and or your rights in respect of them, to any third party.
6. THIRD PARTY SERVICES
6.1 We may from time to time enable functionality within the OnDemand Services to enable you to use the OnDemand Services to interoperate with Third Party Services. You acknowledge and agrees that:
6.1.1 we are not the provider of the Third Party Services and we shall have no liability with respect to any Third Party Services;
6.1.2 any terms and conditions governing the use of the Third Party Services are between you and the applicable provider of the Third Party Services. You agree not to take any action, or use the OnDemand Services, in any way that puts you or us in breach of the relevant third party’s terms. You warrant that you have obtained all necessary rights and consents required to use the OnDemand Services with the Third Party Services;
6.1.3 where you are granting the provider of the Third Party Services access to your User Content stored on the OnDemand Services, we are not controlling the provider of the Third Party Services’ access to your User Content and we are not liable to you pursuant to the terms of this Agreement for any loss, damage or corruption relating to the same; and
6.1.4 we are relieved from any breach of the terms of this Agreement (including any failure to achieve service levels set out in the Support Policy), to the extent such breach is caused by your use of the OnDemand Services with Third Party Services.
6.2 You acknowledge and agree that the warranties and indemnities provided to you in relation to the OnDemand Services pursuant to this Agreement does not apply to the extent that it relates to any Third Party Services.
7. SERVICE LEVELS
7.1 We shall use commercially reasonable endeavours to meet or exceed any service levels set out in the Support Policy. In the event that you experience any problem with the OnDemand Service, you need to log an incident with the OnApp support team using a support ticket subject to and in accordance with the Support Policy.
8. USER CONTENT
8.1 From time to time, we make updates and/or upgrades for the OnDemand Services available to you to. We will notify you once a new update or upgrade is available and implement any such update or upgrade in accordance with our Support Policy.
8.2 We use reasonable endeavours to back-up the User Content uploaded by you (including on your behalf by your End Users) to the OnDemand Services as described in the Support Policy. We recommend that you also utilise your own additional backup facilities and procedures that are appropriate to the User Content. If you require more frequent or different back-up resilience, this is your responsibly to implement separately. We recommend that you encrypt User Content that you store on the OnDemand Services but this is your responsibility to implement and not ours. In the event of any loss or corruption to the User Content uploaded to the OnDemand Service, we shall restore such User Content from our latest back-up in accordance with the Support Policy. This clause 8.2 sets out your sole and exclusive remedy for any loss or corruption of your User Content.
8.3 You are responsible for all interfacing between the OnDemand Services and your own and your End Users’ software and systems and for ensuring that sufficient equipment, communications and network interoperability capabilities exist to enable access to and use of the OnDemand Services and that all of your hardware meets or exceeds minimum specifications (if any) prescribed by OnApp. You acknowledge and agree that where your use of the OnDemand Services exceeds the bandwidth allowance as described in the AUP additional Fees may be payable by you in respect of such additional bandwidth use.
8.4 You shall be entirely responsible for all content (including User Content) that you send or that is sent on your behalf over the OnDemand Services including those we operate for you. To the maximum extent permitted by applicable law, we shall have no liability to you in connection with such content (including User Content) that you send or that is sent on your behalf over the OnDemand Services and you shall indemnify us against any losses, damages, claims and expenses suffered by us in respect of all such content that you send or that is sent on your behalf over the OnDemand Services.
8.5 You shall be responsible for providing direct or ‘front-line’ support to your End Users.
8.6 As a condition of this Agreement, at all times you will implement our reasonable requests regarding the use of OnDemand Services that are governed by this OTC.
8.7 As between you and OnApp, you (or your licensors) retain ownership of all Intellectual Property Rights in and to the information, data and/or software uploaded transmitted or otherwise provided by or on your behalf (including from users and End Users) to us via or during your use of the OnDemand Services (“User Content”). You are solely responsible for the accuracy, quality and legality of User Content and the means by which you acquire User Content.
8.8 You hereby grant (and shall procure the grant of) a royalty-free, non-transferable (save to the extent set out in this clause 8), non-exclusive licence for the Term of this Agreement to us (together with a right for us to sub-licence the same to our third party suppliers) to use your User Content to the extent necessary to carry out our obligations under this Agreement. Where User Content includes software or material owned and/or licensed by a third party, you are responsible for obtaining all rights required to give effect to this clause.
8.9 You shall ensure that the User Content shall not: (i) breach applicable law; (ii) infringe any third party Intellectual Property Rights; or (iii) breach the AUP, (together “Infringing Content”).
8.10 You acknowledge and agree that while we do not actively monitor your use of the OnDemand Services and the User Content that you use in connection with the OnDemand Services, we may remove any User Content where (i) we are required to so by law, regulation or a court order; or (ii) where we reasonably believe any User Content constitutes Infringing Content . To the extent permitted by applicable law, we shall notify you immediately if we become aware of any allegation that any User Content may be Infringing Content.
8.11 You acknowledge and agree that we may access, interact and modify your OnDemand Services and any User Content contained therein in the performance of any support services as part of the OnDemand Services, as further described in the Support Policy.
8.12 You warrant that all necessary and appropriate consents and obligations have been met as required by applicable data protection legislation in relation to any User Content provided by you or on your behalf that is supplied to and processed by us under this Agreement.
8.13 In relation to the processing of personal data pursuant to the Agreement, the parties agree that the DPA is expressly incorporated into this Agreement by reference and forms part of this Agreement. The parties acknowledge that, in respect of any personal data that you provide or that is provided to us on your behalf in the course of providing the OnDemand Services to you, you are: (i) the data controller or (ii) a data processor, and that in the case of (i), we are a data processor of such personal data; and in the case of (ii), we are a sub-processor of such personal data. We each agree to comply, at all times, with applicable Data Protection Legislation (as defined in the DPA) and the terms set out in the DPA.
8.14 You acknowledge and agree that OnApp’s obligations in respect of your Confidential Information set out in clause 6.3 of the GTCs shall not apply to your Confidential Information hosted by us as part of your User Content, to the extent you have configured or otherwise used the OnDemand Services so that your Confidential Information is accessible to third parties (including but not limited to your End Users) through no fault of OnApp, its officers, employees, agents or contractors.
9. WARRANTIES AND INDEMNITY
9.1 We warrant to you that:
9.1.1 the OnDemand Services will materially comply with their description and specification set out in the Documentation; and
9.1.2 we will not materially reduce the description and/or specification of the OnDemand Services during the term of this Agreement.
9.2 Upon you notifying us in writing of any alleged breach of clause 1, we will remedy such alleged breach as per the Support Policy. This clause 9.2 sets out your sole and exclusive remedy in relation to any such alleged breaches, and we will have no other liability of any kind in respect of the alleged breach under this Agreement. Such remedy shall be free of charge to you unless we determine there has been no breach of clause 9.1, at which point you shall pay all reasonable costs and expenses incurred by us in investigating the alleged breach.
9.3 Any warranties given by OnApp shall be subject to you using the OnDemand Services in compliance with this Agreement, and OnApp shall not be liable under this clause for, or required to remedy, any problem arising from any defect or error wholly caused by any software, systems, services or other equipment used in connection with the OnDemand Services that are provided by you or any third party.
9.4 You acknowledge and agree that:
9.4.1 the OnDemand Services have not been prepared to meet your individual requirements and that they cannot be tested in every operating environment so as to produce software which is error free or operates without interruption; and
9.4.2 it is your responsibility to ensure the facilities and functions of the OnDemand Services meet your requirements.
9.5 You shall indemnify OnApp and OnApp’s Hosting Partner (including OnApp’s and OnApp’s Hosting Partner’s affiliates, officers, directors, employees, agents, successors, and assignees) on demand and hold them harmless from and against all losses, damages, claims and expenses suffered by them (including reasonable legal and other professional fees) that are directly or indirectly caused by your actual or threatened violation of any Laws, your infringement of any third party intellectual property right, or personal data or privacy rights, any of your User Content, including Infringing Content or any violation by you of the AUP (“General Claim”). However, you shall no liability under this clause to the extent that our breach of this Agreement causes your General Claim. Nothing in clause 5 (Limitation of Liability) of the GTCs limits or excludes your indemnification obligations pursuant to General Claim as described in this clause.
9.6 You agree that we shall have no liability pursuant to clause 4.3 of the GTCs, to the extent that any Claim relates to the Hosting Partner, and through no fault of OnApp, the Hosting Partner does not provide indemnification to us for the relevant Claim.
10. SUSPENSION AND TERMINATION
10.1 Without prejudice to any other rights or remedies which the parties may have under this Agreement, either party may terminate the Agreement without liability to the other immediately upon giving notice to the other if the other party commits a material breach of the Agreement of which it forms a part which is irremediable or, if capable of being remedied, is not remedied within 7 days of receipt of a notice from the other party requiring it to be remedied.
10.2 Without prejudice to our other express rights under this Agreement, we may immediately terminate this Agreement or suspend your access to and/or our provision of, the OnDemand Services if:
10.2.1 you fail to promptly provide payment prior to, or by, the due date as per the Order;
10.2.2 we, acting reasonably, determine that you or your End Users are in breach of the AUP;
10.2.3 you are in breach of your obligations set out in this Agreement and such breach has had (or is reasonably likely to have) a serious adverse impact on:
(a) the performance of our, and/or our Hosting Partner’s, IT systems; and/or
(b) the security of our IT systems and the security of our other customers and their data
10.3 We shall notify you of a suspension pursuant to clause 2 and the same shall continue until the you have remedied your breach. Such suspension shall not place us in breach of our obligations to provide the OnDemand Services and shall not relieve you from paying the Fees in accordance with the terms of this Agreement. We shall use reasonable endeavours to provide you with such information we are aware of to expedite your remedy of such breach. We may charge you a reconnection and/or administration fee following any such suspension.
10.4 In addition to our other express rights, if you fail to: (a) comply with this Agreement; or (b) comply with any other OnApp contract, after we have provided you with notice and 7 days to remedy the relevant failure, we have the right to immediately suspend your ability to log in to the OnDemand Services, or terminate this Agreement (at our sole election).
10.5 On suspension (including for non-payment), termination or expiry of this Agreement, OnApp shall at its option either:
10.5.1 allow you limited access to the OnDemand Services to allow you to retrieve your User Content for a limited time as described in the Documentation; or
10.5.2 return your User Content to you,
subject to your prior payment to OnApp of all outstanding invoices and any applicable administration fee for such retrieval or return. Where you take no action within 7 days of your suspension, termination or expiry, we reserve the right to permanently delete your account and all User Content.
11.1 Save as described in clause 5, the parties intend that no term of the Agreement may be enforced by any person who is not a party to it. The parties reserve the right to agree to rescind or vary the Agreement without the consent of any other person. The provisions of the Contracts (Rights of Third Parties) Act 1999 shall be and hereby are excluded.
11.2 Any failure of either party to insist upon or enforce performance by the other party of any of the provisions of the Agreement or to exercise any rights or remedies under the Agreement will not be interpreted or construed as a waiver or relinquishment of such party’s right to assert or rely upon such provision, right or remedy in that or any other instance.
11.3 If any provision of the Agreement is held to be invalid or unenforceable, the remaining portions will remain in full force and effect and such provision will be enforced to the maximum extent possible so as to give effect to the intent of the parties and will be reformed to the extent necessary to make such provision valid and enforceable.
11.4 No Order shall be modified except by a subsequently dated, written amendment that expressly amends the Order and which is signed on behalf of both parties. Unless stated otherwise in this Agreement, we may amend this Agreement from time to time and will notify you accordingly on at least 90 days’ written notice. Any such amendments will become part of this Agreement on the next renewal following the expiry of such notice period in accordance with clause 3. If you do not agree with any such amendments, please notify us that you do not wish to renew your Agreement in accordance with clause 3, prior to the expiry of such notice period.
11.5 Any documents or terms issued by you, including any purchase order, shall be for your internal administrative purposes only and, regardless of what they may say otherwise, will have no contractual force or effect on us and shall not operate to govern our relationship or modify our Agreement with you. Any provision hereof that, by its nature, is intended to survive termination or expiry hereof shall so survive.
11.6 Except with respect to payment obligations, neither party will be liable for, or be considered to be in breach of, or in default under, this Agreement, as a result of any Force Majeure Event.
11.7 You and we shall each comply with all applicable laws and regulations applicable to our respective performance of the Agreement, including without limitation, the UK Bribery Act 2010, and all anti-corruption and anti-money laundering laws and regulations. You acknowledge that our software may be subject to national and international controls including laws and regulations on its export to and use in certain territories and agree to abide by all such controls, laws and regulations.
11.8 You shall implement and maintain at all times a suitable policy for prevention of the criminal facilitation of tax evasion containing reasonable “prevention procedures” as required for the purposes of the defence set out in s.45(2) and s.46(3) of the Criminal Finances Act 2017 (a “Prevention of Tax Evasion Policy“) which covers all aspects of the performance of this Agreement and shall procure that all of your relevant officers, employees or agents and any other persons who are engaged to perform any part of this Agreement and who are “associated” with it for the purposes of section 44 of the Criminal Finances Act 2017 (“Associates“) shall at all times in the performance of this Agreement, comply with its Prevention of Tax Evasion Policy.