OnDemand Terms and Conditions

v2.0 February 2019

Version: 2.0
Last modified: 1 February 2019

ONAPP ONDEMAND TERMS AND CONDITIONS (“OTCs”)

The following terms shall be incorporated into the Agreement (as defined in the General Terms and Conditions of Trading (“GTCs”) located at https://onapp.com/legal/) between us where we provide you with access to the OnDemand Service (as defined below) or where otherwise stated in the Order as applying.

    1. DEFINITIONS

1.1         Where used in these OTCs, words shall, except where otherwise stated, shall have the meaning given to them in the GTCs or as otherwise set out in the Agreement.  In addition 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/onapp-on-demand/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;

“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

“Support Policy” being the most current version of the OnDemand Support Policy located at https://onapp.com/legal/onapp-ondemand-support-policy/ at the time of the Order;

“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 a third party, which interoperates with the OnDemand Service.

  1. TERM
    1. Clause 3.1 of the GTCs shall not apply to the OnDemand Services. 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 3.2 of the GTCs, 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.
  2. SERVICES
    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.
    2. Subject to the terms of this Agreement, we shall:
      1. provide the OnDemand Service to you (and your authorised users set out in the Order) on the terms of this Agreement;
      2. materially comply with the Documentation in performing our obligations under this Agreement; and
      3. if set out in the Order, provide the support services described in the relevant Order.
    3. You may, at any time, request different OnApp services, including Professional Services, which will be subject to different terms and additional charges.
  3. LICENCE AND RESTRICTIONS
    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.
    2. You shall ensure that all you:
      1. use the OnDemand Services in accordance with the Documentation and the terms of this Agreement;
      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;
      3. maintain reasonable security measures to prevent unauthorised access to the OnDemand Services via your Access Credentials; and
      4. notify OnApp immediately in the event you are aware of or suspect any unauthorised access to the OnDemand Services.
    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.
    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. 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:
      1. disable your access to the OnDemand Services; and/or
      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.
    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.
  4. THIRD PARTY SERVICES
    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:
      1. we are not the provider of the Third Party Services and we shall have no liability with respect to any Third Party Services;
      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;
      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
      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.
    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.
  5. SERVICE LEVELS
    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.
  6. USER CONTENT
    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.
    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 Documentation. We recommend that you configure the back-up options available within the OnDemand Services as you deem appropriate for the User Content and/or utilise your own additional backup facilities and procedures that are appropriate to the User Content. It is your responsibility to configure the back-up options available within the OnDemand Services for User Content and/or implement your own backup facilities and procedures for User Content. 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, at your request we shall restore such User Content from our latest back-up. We are not responsible for the operation and/or failure of your own backup facilities and procedures for User Content. This clause 7.2 sets out your sole and exclusive remedy for any loss or corruption of your User Content.
    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.
    4. You shall be responsible for providing direct or ‘front-line’ support to your End Users.
    5. 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.
    6. You acknowledge and agree that OnApp’s obligations in respect of your Confidential Information set out in clause 8.2 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.
  7. WARRANTIES AND INDEMNITY
    1. We warrant to you that:
      1. the OnDemand Services will materially comply with their description and specification set out in the Documentation; and
      2. we will not materially reduce the description and/or specification of the OnDemand Services during the term of this Agreement.
    2. Upon you notifying us in writing of any alleged breach of clause 8.1, we will remedy such alleged breach as per the Support Policy. This clause 8.2 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 8.1, at which point you shall pay all reasonable costs and expenses incurred by us in investigating the alleged breach.
    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.
    4. You acknowledge and agree that:
      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
      2. it is your responsibility to ensure the facilities and functions of the OnDemand Services meet your requirements.
    5. OnApp’s Hosting Partner shall be an additional OnApp Indemnitee (as defined in the GTCs) for the purpose of Clause 6 of the GTCs.
    6. You agree that we shall have no obligation or liability pursuant to clause 6.5 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.
  8. SUSPENSION AND TERMINATION
    1. 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).
    2. On suspension (including for non-payment), termination or expiry of this Agreement, OnApp shall at its option either:
      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
      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.