Ometria Terms of Service
These Terms of Service (version 5, updated on 15th February 2017) set out the terms and conditions upon which you may use the Ometria Service and any application or functionality Ometria makes available through the Ometria Service.
By using the Ometria Service or signing an Order Form, you agree to and accept the Terms of Service and the Order Form.
Please read the Terms of Service carefully and make sure you understand and agree to them before using the Ometria Service. If you have any questions relating to the Terms of Service please contact Ometria at email@example.com
If you do not agree to these terms of service, then do not use the Ometria service.
1. Information About Ometria
The Ometria Service is provided by Ometria Ltd (“Ometria”), a company incorporated and registered in England and Wales under company number 08372083 whose registered office is at 9th Floor, 107 Cheapside, London, United Kingdom, EC2V 6DN. Ometria’s main trading address is 38 Park Street, London, W1K 2JF. Ometria’s VAT number is 159146786.
In the Terms of Service, save where the context requires otherwise, the following words and expressions have the following meaning:
“Account” means the Client’s account on the Ometria Service;
“Additional Messaging Fee” means the fee, as set out in the Order Form, payable by the Client in respect of additional Digital Messages purchased pursuant to clause 11.2;
“Additional Messaging Limit” means the number of Digital Messages exceeding the Initial Message Limit by ten percent (10%);
“Agreement” means the agreement between the Client and Ometria comprising the Order Form, the Acceptable Use Policy, and the Terms of Service for the provision of the Ometria Service and, if applicable, the Integration Services and/or the Consultancy Services;
“API” means Ometria’s application process interface permitting the Client to upload Client Data to the Ometria Service;
“Automated Messaging” means the sending of an automated Digital Message to a Subscribed Contact in response to the actions of a Subscribed Contact as permitted by the functionality of the Ometria Service. “Automated Messages” shall be construed accordingly;
“Billing Period” means the period set out in the Order Form;
“Client” means the person identified in the Order Form;
“Client Data” means the content and data transferred to any Ometria equipment as a result of the Code or the API;
“Client’s Service” means the web or app based service operated by the Client;
“Commencement Date” means the date from which the Client will receive the Ometria Service, and if applicable the Integration Services, as set out in the Order Form
“Confidential Information” means information which is identified as confidential or proprietary by either party or by the nature of which is clearly confidential or proprietary;
“Consultancy Services” means the consultancy services to be provided by Ometria in relation to the Client’s business as specified in the Order Form or as agreed between the parties in writing from time to time;
“Data Processing Fee” means the data processing fee payable by the Client as set out in the Order Form or determined in accordance with clause 11.4;
“Digital Message” means an outbound digital message sent to a Subscribed Contract by the Client using the Ometria Service;
“Extended Term” means the period of time set out in the Order Form that the Agreement will automatically extend for following the end of the Initial Term or any Extended Term;
“Fair Use Limit” means either (i) the number of Automated Messages equivalent to ten (10) times the number of Subscribed Contacts on the Commencement Date, or (ii) the number of Digital Messages equivalent to four (4) times the number of Subscribed Contacts on the Commencement Date using the Mass Messaging feature of the Ometria Service;
“Fees” means the amounts set out in the Order Form in respect of the Licence Fee, Initial Messaging Fee, Data Processing Fee, Additional Messaging Fee and/or such amount that is payable pursuant to this Agreement or that the parties may agree in writing from time to time, for the provision of the Ometria Service and, if applicable, the Integration Services and the Consultancy Services;
“Initial Messaging Fee” means the fee, as set out in the Order Form, payable by the Client to Ometria in consideration for sending Digital Messages in excess of the Fair Use Limit but within the Initial Message Limit;
“Initial Message Limit” means the number of additional Digital Messages purchased by the Client in excess of the Fair Use Limit, as set out in the Order Form;
“Initial Term” means the initial term of the Agreement as set out in the Order Form;
“Integration Services” means the services described in the Order Form relating to the integration of the Ometria Service with the Client’s web pages or mobile application;
“Licence Fee” means the licence fee, as set out in the Order Form, payable by the Client;
“Mass Messaging” means the sending of the same Digital Message by the Client at the same time to all of its Subscribed Contacts or to significant subset of its Subscribed Contacts. “Mass Messages” shall be construed accordingly;
“Ometria Service” means the Code, the API, the Mass Messaging and Automated Messaging services, and any analytics, marketing analytics and metrics software product Ometria makes available as a service through the Website;
“Order Form” means the order form signed (whether electronically or otherwise) which amongst other things, identifies the Client and sets out the Fees, if applicable;
“Subscribed Contact” means a contact of the Client who has given their permission for the Client to send them marketing email communications, and whose details have been uploaded to the Ometria Service;
“Terms of Service” means these terms and conditions of service as amended from time to time;
“Term” means the period of time made up of the Trial Period (if any) and the Initial Term plus any Extended Term;
“Third Party Sites” has the meaning ascribed to it in clause 6.10
“Trial” means a trial of the Ometria Service for the Trial Period;
“Trial Period” means the period specified in the Order Form;
“Twelve Month Active Customer” means any customer of the Client who has placed an order in the twelve (12) months prior to the commencement date of each Billing Period via any of the Client’s websites, apps or retail stores that make, or will make, use of the Ometria Service;
“User” means any person authorised by the Client to access the Ometria Service on behalf of the Client;
“Virus” 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; and
“Website” means www.ometria.com.
Ometria offers a free Trial of the Ometria Service during the Trial Period. If a Trial Period has been agreed in the Order Form, the Trial will start on the Commencement Date and will continue for the Trial Period. Following expiry of the Trial Period, the Agreement will automatically terminate unless otherwise agreed by the Client and Ometria as set out in writing or the Order Form.
If the Client is accessing the Ometria Service on a Trial, Ometria may terminate the Agreement with 14 days’ notice.
The Agreement shall start on the Commencement Date in the Order Form and continue for the Term.
The Initial Term of the Agreement shall automatically extend for the Extended Term at the end of the Initial Term and at the end of each Extended Term, unless either party gives written notice to the other, no later than 30 days before the end of the Initial Term or the relevant Extended Term, to terminate the Agreement at the end of the Initial Term or the relevant Extended Term, as the case may be.
5. Access to the Ometria Service
Ometria grants the Client a non-exclusive, non-transferable, personal and non sub-licensable licence to permit Users to use the Ometria Service and the Ometria Service features for the purposes of sending Digital Messages and monitoring, analysing and using content available to the Client on the Ometria Service to optimize its business activities, interact with its Subscribed Contacts and managing the Client’s Account.
Where indicated in the Order Form, Ometria will provide the Integration Services and/or Consultancy Services to the Client.
The Client must treat any username and password to access the Ometria Service or the Client’s Account as Confidential Information, and it must not disclose it to any third party (other than to Users).
In relation to Users, the Client shall ensure that:
5.4.1. the maximum number of Users that the Client authorises to access and use the Ometria Service does not exceed the maximum number of Users specified in the Order Form or otherwise agreed in writing by Ometria; and
5.4.2. the Client shall procure that each User keeps secure and confidential any username and password provided for the User’s use of the Ometria Service and shall not disclose such user name and password to any third party including persons within the Client’s organisation, company or business.
If Ometria discovers that any User is sharing their username and password with any other person, the Client will pay Ometria a sum equivalent to the Fees divided by the maximum number of Users specified in the Order Form for each additional person using the Ometria Service.
The Client may delete User accounts and authorise other users to access and use the Ometria Service provided the number of Users permitted to access and use the Ometria Service does not exceed the maximum number of Users specified in the Order Form.
Ometria may disable any username or password, at any time and at Ometria’s sole discretion, if a User or the Client has failed to comply with any of the provisions of the Agreement.
The Client is responsible for maintaining the confidentiality of login details for its Account and any activities that occur under its Account including the activities of Users. Whenever applicable, Ometria encourages the Client to use “strong” passwords (passwords that use a combination of upper and lower case letters, numbers and symbols) with its Account. If the Client has any concerns about the login details for its Account or thinks they have been misused, please contact Ometria at firstname.lastname@example.org. The Client must immediately notify Ometria if the Client becomes aware that the login details of any User is lost, stolen or otherwise compromised.
Unless the Client has purchased Digital Messages in excess of the Fair Use Limit as set out in the Order Form, the Client shall not exceed the Fair Use Limit. If the Client exceeds such limits, Ometria may charge the Client a fee in accordance with clause 11.
The Client shall not exceed the Initial Message Limit or, as applicable, the Additional Messaging Limit. If the Client exceeds such limits, Ometria may charge the Client a fee in accordance with clause 11.
The Client is responsible for making all arrangements necessary for Users to have access to the Ometria Service. The Client is also responsible for ensuring that all Users are aware of the terms of the Agreement, and that they comply with them.
The Client must prevent any unauthorised access to, or use of, the Ometria Service and, in the event of any such unauthorised access or use, promptly notify Ometria.
The Client recognises that Ometria is always innovating and finding ways to improve the Ometria Service with new features and services. Therefore, the Client agrees that the Ometria Service may change from time to time and no warranty, representation or other commitment is given in relation to the continuity of any functionality of the Ometria Service.
The Client shall indemnify and defend Ometria, its agents and contractors from and against any and all losses, damages, claims, liabilities or expenses (including reasonable lawyer’s fees) arising out of a claim brought by a third party relating to the Client’s use of the Ometria Service (except to the extent caused by Ometria’s negligence) including:
5.14.1. the sending of Digital Messages (including to the Client’s Subscribed Contacts) by Ometria, the Client or any other client of Ometria in breach of applicable law, this Agreement or without the explicit permission of the recipient;
5.14.2. the failure of, or non-availability affecting, the Ometria Service caused by the Client or any User.
Ometria has the right to disable any Account, if in its sole opinion the Client or a User has failed to comply with any of the provisions of the Agreement.
6. Client's Obligations
Ometria permits the Client to download the Code (including any updates to the Code that Ometria may make available from time to time) from the Website for the sole purpose of permitting the Client to integrate the Client’s Service with the Ometria Service.
The Client shall insert the Code into the Client’s Service in accordance with the reasonable directions given by Ometria from time to time.
The Client shall update the Code inserted into the Client’s Service promptly upon receiving notice from Ometria to do the same.
Notwithstanding clause 6.2 and clause 6.3, unless Ometria provides Integration Services, the Code is provided on an “AS IS” basis and the Client assumes sole responsibility for installation and integration of the Code with the Client’s Service including but not limited to the Client’s hardware, software, websites and apps.
Ometria permits the Client to use the API (including updates to the API that Ometria may make available from time to time) for the sole purpose of permitting the Client to transfer Client Data to Ometria.
The Client shall use the API in accordance with the reasonable directions given by Ometria from time to time.
The Client must use the most current version of the API after any previous version has been upgraded, following notice from Ometria to do so.
Ometria may monitor the Client’s use of the Ometria Service to ensure quality, improve the Ometria Service, and verify the Client’s compliance with the Agreement.
6.9.1. must comply with all applicable laws and regulations with respect to its use of the Ometria Service and its activities under the Agreement;
6.9.2. must comply with the Ometria Acceptable Use Policy as made available and updated from time to time (currently available at http://www.ometria.com/acceptable-use-policy);
6.9.3. must use the Ometria Service in accordance with the terms of the Agreement and shall be responsible for any actions and omissions in connection with the use of the Ometria Service by any Users;
6.9.4. must obtain and shall maintain all necessary licences, consents, and permissions necessary for Ometria to perform its obligations to the Client under the terms of the Agreement;
6.9.5. must ensure that its network and systems, including its internet browser used complies with the relevant specifications provided by Ometria from time to time;
6.9.6. is solely responsible for procuring and maintaining its network connections and telecommunications links from its systems in order to access and use the Ometria Service; and
6.9.7. must not (a) access, store, distribute or transmit any Virus through the Ometria Service (b) use the Ometria Service to access, store, distribute or transmit any material that is unlawful, harmful, threatening, defamatory, inflammatory, violent, obscene, infringing, harassing or racially or ethnically offensive; (c) use the Ometria Service in a manner that is illegal or causes damage or injury to any person or property; (d) use any automated system, including without limitation “robots,” “spiders,” “offline readers,” to access the Ometria Service in a manner that sends more request messages to the Ometria Service than a human can reasonably produce in the same period of time by using a conventional online web browser; (e) attempt to interfere with or compromise the Ometria Service integrity or security. Ometria reserves the right, without liability or prejudice to its other rights under the Agreement, to disable the Client’s Account for breaches of the provisions of this clause 6.9.7.
The Ometria Service may contain links to, or call the servers of, third party websites or services that are not under Ometria’s control, solely at the direction of and/or as a convenience to the Client (“Third Party Sites”). As such, Ometria is not responsible for, and makes no express or implied warranties with regard to, the information, content or other material, products or services that are contained on or are accessible through, or the policies regarding use and privacy of, Third Party Sites. Access to and use of Third Party Sites, including the information, content, material, products, and services on such websites or available through such websites, is solely at the Client’s risk. If the Client accesses any Third Party Sites, the Client does so at its own risk.
7. Important Note on Intellectual Property Rights
Ometria is the owner of or the licensee of all intellectual property rights in the Ometria Service. These works are protected by copyright and other laws and treaties around the world. All such rights are reserved.
The Client will not, when using the Ometria Service:
7.2.1. attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Ometria Service in any form or media or by any means;
7.2.2. attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Ometria Service;
7.2.3. access all or any part of the Ometria Service in order to build a product or service which competes with the Ometria Service or use or attempt to use the Ometria Service to directly compete with Ometria; or
7.2.4. erase or remove any proprietary or intellectual property notice contained in the Ometria Service.
The Client grants Ometria a licence to access, download and use the Client Data for the purpose of analysing the Client Data in accordance with the Ometria Service functionality, displaying the results of such analysis to Users, developing, testing, improving and altering the functionality of the Ometria Service and producing anonymised or anonymised and aggregated statistical reports and research. Otherwise, Ometria claims no rights in the Client Data. The Client represents and warrants to Ometria that none of the Client Data violates the Agreement and that the Client has the necessary right, title, interest and consent necessary to allow Ometria to use the Client Data in accordance with this Agreement. The Client shall maintain a backup of Client Data and Ometria shall not be responsible or liable for the deletion, correction, alteration, destruction, damage, loss, disclosure or failure to store any Client Data.
8. Publicity, Case Studies & Feedback
Ometria may use the Client’s name, logo and related trade marks, and any email marketing templates that are used in emails sent through the Ometria Service, in any of Ometria’s publicity or marketing materials (whether in printed or electronic form) for the purpose of highlighting that the Client uses the Ometria Service and alongside any testimonials that the Client has agreed to give. The Client grants Ometria such rights as are necessary to use such name, logo, related trademarks, email templates and testimonial for the purpose of this clause 8.1.
The Client acknowledges that Ometria may prepare written overviews of the impact of the Ometria Service on the Client’s business (“Case Studies”). The Client agrees that Ometria may publish such Case Studies with the Client’s consent (such consent not to be unreasonably refused) as part of its marketing materials. The Client may request reasonable amendments to Case Studies. Any consent to be given to Case Studies or requests for amendments to Case Studies prepared by Ometria shall not be unreasonably delayed by the Client. Ometria and the Client agree that the Case Studies may consist of (but not limited to) information identifying the Client, the dates and timeframes for the provision of the Ometria Service, the dates and timeframes for the achievement of relevant outcomes using the Ometria Service, the description of the outcomes achieved using the Ometria Service and metrics relating to those outcomes such as (but not limited to) percentage increase in revenue, increase in website or app visits, conversion rates, average order value, or any other metric relevant to the achieved outcomes using the Ometria Service. No information which in the Client’s reasonable opinion is commercially sensitive to its business shall be included in published Case Studies. The Client agrees to provide a reasonable level of assistance to Ometria in preparation of Case Studies, if requested to do so by Ometria.
The Client agrees to provide regular feedback to Ometria in relation to its use of the Ometria Service. Such feedback may be in the form of a telephone or face to face meeting or the completion of a written survey or questionnaire as reasonably agreed between Ometria and the Client. Unless agreed otherwise, the Client shall be required to spend no more than 1 hour participating in the provision of such feedback every 3 months from the Commencement Date (or once during the Term if shorter than 3 months). The Client is under no obligation to respond to any question put to it by Ometria during Ometria’s collection of feedback. By submitting feedback, the Client acknowledges that Ometria may use and allow others to use this feedback in the Ometria Service or otherwise without any restriction.
9. Data Protection
Ometria does not claim ownership in the Client Data.
If Ometria Processes any Personal Data as a result of hosting the Client Data or as a result of the Client’s use of the Ometria Service, the Client agrees that Ometria does so as a Data Processor and that the Client is the Data Controller in relation to such Personal Data.
Ometria and the Client agree that, in relation to such Personal Data:
9.3.1. Ometria will Process the Personal Data only in accordance with the terms of the Agreement, any lawful written instructions reasonably given to Ometria by the Client from time to time, and all applicable laws relating to data protection; and
9.3.2. Ometria will 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.
The Client agrees that Ometria may transfer Personal Data to third party sub-processors, including third parties providing hosting, infrastructure, maintenance and other services to Ometria as required in order to provide the Ometria Service, that are based outside the EEA, in which event Ometria will use reasonable endeavours to:
9.4.1. enter into a contract with the third party which includes terms which are substantially similar as those set out in this clause 9; and
9.4.2. ensure that any such transfer is based on Standard Contractual Clauses (Commission Decision C(2010)593) or (where relevant) the U.S. – EU Privacy Shield or another legally recognized transfer method if the Client is based in the EEA and third party service provider is based outside the EEA.
The Client warrants to Ometria that it will collect and Process the Personal Data in compliance with all applicable data protection laws, enactments, orders, standards and other similar instruments, and that it has obtained all necessary permissions from the Data Subjects to whom the Personal Data relates to allow Ometria to lawfully store, transfer and Process the Personal Data in the course of providing the Ometria Service.
The Client agrees to indemnify and keep indemnified and defend at its own expense Ometria against all costs, claims, damages and expenses incurred by Ometria or for which Ometria may become liable due to any failure by the Client or the Users to comply with clause 9.5.
The Client acknowledges that Ometria is reliant on the Client for direction as to the extent to which Ometria is entitled to use and Process the Personal Data. Consequently, Ometria will not be liable for any claim brought by a Data Subject arising from any action or omission by Ometria to the extent that such act or omission resulted from the Client’s instructions or Client’s use of the Ometria Service.
For the purposes of this clause 9, the terms “Personal Data”, “Data Processor”, “Data Controller”, “Data Subjects”, “Processing” and “Process” shall have the same meaning as set out in the Data Protection Act 1998.
10. Confidential Information
Each party may be given access to Confidential Information from the other party in order to perform its obligations under these terms and conditions. A party’s Confidential Information shall not be deemed to include information that:
10.1.1. is or becomes publicly known other than through any act or omission of the receiving party;
10.1.2. was in the other party’s lawful possession before the disclosure;
10.1.3. is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
10.1.4. is independently developed by the receiving party, which independent development can be shown by written evidence; or
10.1.5. is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
Each party shall hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available for use for any purpose other than as needed to perform the terms of the Agreement.
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 the Agreement.
Each party shall take a back-up of its own Confidential Information and shall not be responsible to the other for any loss, destruction, alteration or disclosure of Confidential Information.
11. Price and Payment
The Client will pay the Fees as set out in, and in accordance with, the Order Form.
In event that the Client exceeds the Fair Use Limit (without having purchased additional Digital Messages) or exceeds the Additional Messaging Limit, the Client shall pay Ometria the Additional Message Fee for the purchase of additional Digital Messages as such number of Digital Messages is nominated by the Client.
In the event that Client fails to purchase any additional Digital Messages (or fails to nominate the number it wants to purchase) following exceeding the Fair Use Limit or Additional Messaging Limit or any other limits agreed by the parties, Ometria shall charge the Client a fee based on the Additional Message Fee for the actual or expected usage or sending of Digital Messages by the Client.
In the event that the number of Twelve Month Active Customers at the commencement date of a Billing Period is greater than the number of Twelve Month Active Customers at the commencement date of the previous Billing Period, Ometria may increase the Data Processing Fee payable in respect of that Billing Period by the percentage by which the number of Twelve Month Active Customers has increased.
Unless alternative payment is agreed in the Order Form, the Client will provide to Ometria valid, up-to-date and complete credit or debit card details and it hereby authorises Ometria to bill such credit or debit card for the Fees in accordance with the Order Form.
If Ometria has not received payment within 14 days after the due date, and without prejudice to any other rights and remedies available to Ometria:
11.6.1. Ometria may, without liability to the Client, suspend or temporarily disable all or part of its access to the Ometria Service and Ometria shall be under no obligation to provide any access to the Ometria Service, or continue to provide the Consultancy Services, while the invoice(s) concerned remain unpaid;
11.6.2. interest shall accrue on such due amounts at an annual rate equal to 3% over the then current base lending rate of Barclays Bank PLC at the date the relevant invoice was issued, commencing on the due date and continuing until fully paid, whether before or after judgment; and
11.6.3. the Client shall reimburse Ometria for all reasonable costs and expenses (including reasonable attorneys’ fees) incurred by Ometria in collecting any overdue amounts.
All amounts and Fees stated or referred to in the Agreement:
11.7.1. are payable in the currency specified in the Order Form or otherwise stipulated by Ometria; and
11.7.2. are exclusive of value added tax (“VAT”) unless otherwise expressly stated which shall be paid at the same time as payment of the Fees. Ometria shall send the Client a VAT invoice if Ometria is requested to do so.
Subject to clause 11.4, unless otherwise agreed in writing, Ometria may increase the Fees upon 30 days’ notice in writing to the Client, such increase to take effect from the commencement date of the Extended Term following the expiry of the notice. If the Client is unhappy with the increase, the Client may terminate the Agreement with Ometria by providing a minimum of 30 days’ notice, such notice not to expire until the end of the Term. During the notice period the Fees will not increase.
12. Availability and Support
Where the Client has paid for access to the Ometria Service, Ometria will use commercially reasonable endeavours to make the Ometria Service available with an uptime rate of 99%, except for:
12.1.1. planned maintenance for which 24 hours’ notice will be given; or
12.1.2. unscheduled maintenance during normal business hours (UK time) or otherwise, for which Ometria will use reasonable endeavours to give the Client advance notice.
Where the Client has paid for access to the Ometria Service, Ometria will, as part of the Ometria Service, use reasonable endeavours to provide a level of support that is appropriate to the nature of any issues requiring support during normal business hours (UK time). Support for Clients using the Ometria Service for free will be provided entirely at Ometria’s option and discretion. The Client shall provide all support reasonably required by Ometria to perform its obligations under this clause 12, including providing reasonably detailed descriptions of issues and updates on the performance of the Service.
The Client acknowledges that the Ometria Service requires access to Client Data and any other data sources, whether controlled by the Client or a third party, that the Client may elect to use with the Ometria Service. The Client agrees that Ometria is not responsible for the non-availability of or interruption to the Ometria Service caused by any non-availability of any such data source.
The Client will allow Ometria to manage all DNS elements associated with the sending of domains via DNS subdomain delegation.
13. Suspension and Termination
If the Client fails to pay any sum due to Ometria and such sum remains outstanding for a further fourteen (14) days following notice requiring such sum to be paid, Ometria may terminate the Agreement immediately by notice and without any liability for Ometria to the Client.
Ometria may terminate the Agreement with 30 days’ notice in writing.
Ometria may terminate the Agreement by notice with immediate effect, or such notice as Ometria may elect to give, if the Client:
13.3.1. is in breach of applicable law;
13.3.2. infringes Ometria’s intellectual property rights in the Ometria Service; or
13.3.3. breaches the Acceptable Use Policy referred to in clause 6.9.2.
Without prejudice to any other rights and remedies available to Ometria, Ometria may immediately suspend the Client’s Account in whole or in part, and any User accounts, without prior written notice if the Client is in material or persistent breach of any terms of the Agreement, or if, in Ometria’s reasonable determination, the Client is suspected of being in material breach of any terms of the Agreement. For the purposes of this clause 13.4, the parties acknowledge that any breach of the Acceptable Use Policy referred to in clause 6.9.2 will be a material breach of the Agreement.
Either party may terminate the Agreement immediately at any time on written notice to the other if the other:
13.5.1. is in material or persistent breach of any of the terms of the Agreement and either that breach is incapable of remedy, or the other party fails to remedy that breach within (i) 30 days, where the breaching party is Ometria, or (ii) five (5) business days (meaning a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business) where the breaching party is the Client, after receiving written notice requiring it to remedy that breach; or
13.5.2. is unable to pay its debts (within the meaning of section 123 of the Insolvency Act 1986), or becomes insolvent, or is subject to an order or a resolution for its liquidation, administration, winding-up or dissolution (otherwise than for the purposes of a solvent amalgamation or reconstruction), or has an administrative or other receiver, manager, trustee, liquidator, administrator or similar officer appointed over all or any substantial part of its assets, or enters into or proposes any composition or arrangement with its creditors generally, or is subject to any analogous event or proceeding in any applicable jurisdiction.
On termination of the Agreement for any reason all licences granted under the Agreement shall immediately terminate and the Client’s right to access and use the Ometria Service will end.
Ometria shall use reasonable endeavours to permit the Client to download any Client Data from the Ometria Service for a period of 15 days after the expiry or termination (howsoever caused) of the Agreement. Notwithstanding the foregoing, Ometria may delete any Client Data at any time on or after the effective date of termination or expiry of the Agreement. Ometria may retain Client Data upon expiration or termination of the Agreement to comply with applicable law or as Ometria may deem necessary to prosecute or defend any legal claim (in which case Ometria may retain Client Data for a reasonable period of time pending resolution of such obligation or issue).
The accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced.
14. Limited Warranty
Ometria undertakes to make the Ometria Service available as specified in clause 12.1 and will provide the Integration Services and the Consultancy Services (if any are to be provided) with reasonable skill and care. Ometria’s sole obligation to the Client, and the Client’s sole and exclusive remedy with respect to any failure by Ometria to provide the Ometria Service, and the Integration Services and the Consultancy Services (if any are to be provided), in accordance with clause 12.1 is for Ometria to take commercially reasonable efforts to repair or re-perform the affected Service. Otherwise, the Ometria Service and the Integration Services and the Consultancy Services (if any are to be provided) are provided on an “AS IS” basis and Ometria gives no representations, warranties, conditions or other terms of any kind in respect of the such services, whether express or implied, including, but not limited to, warranties of satisfactory quality, merchantability fitness for a particular purpose or non-infringement. If the Client makes any changes or modifications to the Ometria Service, the warranties given by Ometria in this Agreement will be null and void.
Except as expressly and specifically provided for in the Agreement:
14.2.1. the Client assumes sole responsibility for (i) installation and integration of the Ometria Service with its IT systems including but not limited to the Client’s hardware, software, websites and apps; and (ii) any results obtained from the use of the Ometria Service and for any conclusions drawn or taken from such use and it relies on the results obtained from the Ometria Service at its own risk;
14.2.2. all representations, warranties, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by law, excluded from the Agreement;
14.2.3. Ometria will not be responsible for any interruptions, delays, failures or non-availability affecting the Ometria Service or the performance of the Ometria Service which are caused by third parties (including other clients of Ometria, Third Party Sites and third services connected to the Ometria Service at the direction of the Client), changes to the Ometria Service made by or on behalf of the Client, or by errors or bugs in software, hardware or the Internet on which Ometria relies to provide the Ometria Service and the Client acknowledges that Ometria does not control such third parties or third party service services and that such errors and bugs are inherent in the use of such software, hardware and the Internet; and
14.2.4. Ometria will not be liable (except to the extent caused by Ometria’s negligence) for the sending of Digital Messages (including to the Client’s Subscribed Contacts) by Ometria, the Client or any other client of Ometria.
15. Ometria's Liability
Subject to clause 15.2, Ometria will not be liable for losses that result from Ometria’s failure to comply with the Agreement, tort or otherwise in conditions that fall into the following categories: loss of income or revenue; loss of business; loss of profits; loss of anticipated savings; loss of goodwill; loss of or damage to data; waste of management or office time; or any indirect, consequential or special damages, costs or expenses.
Nothing in the Agreement excludes or limits Ometria’s liability for death or personal injury caused by Ometria’s negligence or for fraud or fraudulent misrepresentation.
Ometria’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance or contemplated performance of the Agreement shall in all circumstances be limited to the Fees paid by the Client in the 6 months prior to the event giving rise to the claim or, in the case of an event in the Trial Period giving rise to a claim, £1.
16. Written Communications
Applicable laws may require that some of the information or communications Ometria send to the Client should be in writing. When using the Ometria Service, the Client accepts that communication with Ometria will be mainly electronic. Ometria will contact the Client by e-mail or provide the Client with information by posting notices on the Ometria Service. For contractual purposes, the Client agrees to this electronic means of communication and the Client acknowledges that all contracts, notices, information and other communications that Ometria provides to the Client electronically comply with any legal requirement that such communications be in writing.
All notices given by the Client to Ometria must be given to email@example.com. Ometria may give notice to the Client at either the e-mail or postal address the Client provides to Ometria, or any other way Ometria deems appropriate. Notice will be deemed received and properly served immediately when posted on the Ometria Service or 24 hours after an e-mail is sent or three days after the date of posting of any letter. In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an e-mail that such e-mail was sent to the specified e-mail address of the addressee.
18. Transfer of Rights and Obligations
he Client may not transfer, assign, charge or otherwise deal in the Agreement, or any of the Client’s rights or obligations arising under the Agreement, without Ometria’s prior written consent.
19. Events Outside Either Parties Control
Neither party shall be liable to the other for any delay or non-performance of its obligations under the Agreement arising from any cause beyond its control including, without limitation, any of the following: telecommunications failure, internet failure, act of God, act of a third party unless an approved sub-contractor of Ometria, governmental act, war, fire, flood, explosion or civil commotion. For the avoidance of doubt, nothing in this clause shall excuse the Client from any payment obligations under the Agreement.
No forbearance or delay by either party in enforcing its rights shall prejudice or restrict the rights of that party, and no waiver of any such rights or of any breach of any contractual terms shall be deemed to be a waiver of any other right or of any later breach.
If any provision of the Agreement is judged to be illegal or unenforceable, the continuation in full force and effect of the remainder of the provisions shall not be prejudiced.
22. Ometria's Right to vary the Terms of Service
Ometria has the right to revise and amend the Terms of Service from time to time to reflect changes in market conditions affecting Ometria’s business.
The Client will be subject to the Terms of Service in force at the time that it makes use of the Ometria Service, or if Ometria notifies the Client of changes to the Terms of Service and it continues to use the Ometria Service the Client will be subject to those changes.
Ometria will use reasonable endeavours to notify the Client of any material changes to the Terms of Service by e-mail or by the placement of a notice on the Ometria Service.
23. Third Party Rights
A person who is not party to the Agreement shall not have any rights under or in connection with it under the Contracts (Rights of Third Parties) Act 1999.
24. No Partnership or Agency
Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other party, nor authorise either party to make or enter into any commitments for or on behalf of the other party.
25. Law and Jurisdiction
The Agreement shall be governed by and construed in accordance with English law and each party hereby submits to the exclusive jurisdiction of the English courts.
26. Entire Agreement
This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous discussions, correspondence, negotiations, drafts, agreements, arrangements and understandings between them, whether written or oral, relating to its subject matter.