THIS MASTER SERVICES AGREEMENT ("AGREEMENT") GOVERNS THE CUSTOMER'S USE OF THE SERVICES (INCLUDING FREE SERVICES AND PURCHASED SERVICES) OFFERED BY ONE TOUCH DATA LTD.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THIS AGREEMENT, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THIS AGREMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
ALL USERS (AS DEFINED BELOW) OF THE SERVICES MUST COMPLY WITH THE TERMS AND CONDITIONS SET OUT IN THIS AGREEMENT. IN PARTICULAR, ALL USERS MUST KEEP THEIR LOG-IN DETAILS CONFIDENTIAL AND MUST NOT SHARE THESE WITH ANY OTHER THIRD PARTY. FAILURE TO DO SO MAY RESULT IN THE USER'S ACCESS TO THE SERVICES BEING SUSPENDED/TERMINATED.
This Agreement was last updated on February 18, 2025.
The following definitions and rules of interpretation apply in this Agreement.
1.1.Definitions
"Affiliate" means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
"Claim" means as defined in clause 12.1 of this Agreement.
"Commencement Date" means the date that the first Offer Letter is accepted by Us, in accordance with the procedure set out in clause 2 of this Agreement.
"Confidential Information" means as defined in clause 10.1 of this Agreement.
"Customer (You, Your)" means the customer (including, if applicable, its Affiliates), as set out in the Offer Letter.
"Data Protection Legislation" means (i) to the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom which relates to the protection of Personal Data; and (ii) to the extent the EU GDPR applies, the law of the European Union or any member state of the European Union to which You or OTD is subject, which relates to the protection of Personal Data. For the purposes of this definition, "EU GDPR" means the General Data Protection Regulation ((EU) 2016/679) and "UK GDPR" has the meaning given in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018.
"Deliverables" means the data, information and/or reports, provided by OTD in the course of providing the Services or generated by You when accessing and using the Services.
"Disclosing Party" means as defined in clause 10.1 of this Agreement.
"Documentation" means the applicable policy documentation at www.hazwasteonline.com/trust-and-compliance-documentation/.
"Effective Date" means the date when OTD commenced the provision of the Services as set out in an Offer Letter.
"Free Services" means those Services which are provided to You by OTD during the Free Trial Period.
"Free Trial Period" means as defined in clause 3.1 of this Agreement. "Initial Term" means as defined in clause 2.4.1 of this Agreement.
"Intellectual Property Rights" means patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
"Laboratory (They, Their)" means a chemical testing laboratory that generates Our proprietary .hwol files for use by their customers.
"Malicious Code" means viruses, worms, time bombs, trojan horses and other harmful or malicious code, files, scripts, agents or programs.
"Master Rulebook" means as defined in clause 5.3 of this Agreement.
"Offer Letter" means an ordering document or online order, specifying the Services to be provided hereunder, including any addenda thereto, that are entered into between You and OTD from time to time in accordance with clause 2 of this Agreement. Offer Letters shall be deemed incorporated herein by reference.
"OTD (We, Our)" means One Touch Data Ltd with company registration number 06650137 and whose registered office is at Suite 4, 3rd Floor, Nicholson's House, Nicholsons Walk, Maidenhead, England, SL6 1LD.
"OTD IPRs" means all Intellectual Property Rights subsisting in (i) the Services; (ii) the Software; (iii) User Guide and Documentation; (iv) the Deliverables, excluding any of Your Data incorporated in them; (v) the .hwol files, excluding any of Your Data incorporated in them; and (vi) the Master Rulebook.
"Project" means a specific instance of the Website, accessible by Your Users where You manage and process Your Data.
"Purchased Services" means Services that You or Your Affiliates purchase under an Offer Letter, in accordance with clause 2 of this Agreement, as distinguished from those Free Services provided by OTD.
"Receiving Party" means as defined in clause 10.1 of this Agreement.
"Renewal Term" means as defined in clause 2.4.1 of this Agreement.
"Representatives" means as defined in clause 10.2 of this Agreement.
"Services" means the services provided by OTD to you, either as Purchased Services or Free Services, as set out in an Offer Letter. The "Services" may include any or all of the following: Subscription Services, Training Services, .HWOL Accreditation Services and such other services as may be provided to You by OTD from time to time.
"Software" means the software known as HazWasteOnline™, which is (i) made available by OTD and (ii) used and accessed by You, via the Website.
"Specification" means OTD's specification requirements for .hwol files, the latest version which can be downloaded from www.hazwasteonline.com/hwol-file-format/ .
"Subscription Services" means the subscription services to access and use the Software, as further described on the Website and/or the Offer Letter.
"Subscription Term" means in respect of the Subscription Services, the Initial Term and any Renewal Term(s).
"Taxes" means as defined in clause 8.10 of this Agreement.
"this Agreement" shall consist of:
i) The terms and conditions contained herein and any variations thereof made by OTD from time to time as indicated on the Website.
ii) each Offer Letter.
"Training Services" means the delivery of training courses by OTD, either in-person or virtually, as further described on the Website and/or the Offer Letter.
"User Guide" means the various online user guides and videos for the Services, accessible from the Website, as updated by OTD from time to time. You acknowledge that You have had the opportunity to review the User Guide during the Free Trial Period described in clause 3 (Free Services) below.
"Users" means the named individuals who are authorised by You and subsequently registered with OTD to use the Subscription Services, for whom subscriptions to a Subscription Service have been purchased, and who have been supplied user identifications and passwords by OTD. Users may include but are not limited to Your employees and permanent contractors; or other third parties where authorised by OTD.
"Website"refers to http://www.hazwasteonline.com/ used to access the Services.
"Websites" refers to the Website and ancillary websites, including academy.hwol.uk and www.hwol.uk that are used to support the Services.
"Your Data" means all electronic data, documents and information submitted by You to OTD for the purposes of receiving and/or accessing and using the Services.
"Your Default" means as defined in clause 7.2 of this Agreement.
".hwol files" means as defined in clause 5.2 of this Agreement.
".HWOL Accreditation Services" means the HWOL Accreditation services, provided by OTD to the Customer, as further described on the Website and/or the Offer Letter.
1.2. Interpretation:
(a)unless expressly provided otherwise in this Agreement, a reference to legislation or a legislative provision: (i) is a reference to it as amended, extended or re-enacted from time to time; and (ii) shall include all subordinate legislation made from time to timeunder that legislation or legislative provision.
(b) any words following the terms including, include , in particular, for example or any similar expression, shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
(c) a reference to writing or written includes email but not fax.
2.1. Subject to the remainder of this clause, this Agreement commences on the Commencement Date, and shall, unless otherwise terminated in accordance with clause 14, continue until all Offer Letters have expired or been terminated. If You elect to use the Free Services and do not purchase a Service before the end of the Free Trial Period, this Agreement will terminate at the end of the Free Trial Period.
2.2. Subject to clause 2.3 below, You (or any of Your Affiliates) may procure any of the Services by agreeing an Offer Letter with Us (but OTD shall not be under any obligation to accept the Offer Letter). For the avoidance of doubt, an Offer Letter will not be agreed until the Customer receives written notice from OTD confirming the same.
2.3. In the event that the Services are to be provided to any of Your Affiliates, You shall ensure that such Affiliates comply with the terms of this Agreement and You shall be liable for any breach by any of Your Affiliates of any term of this Agreement.
2.4. In relation to each Offer Letter (unless otherwise terminated as provided in clause 14), OTD shall provide the relevant Services from the Effective Date, and where the Offer Letter relates to provision of:
2.4.1. Subscription Services and/or the .HWOL Accreditation Services, the initial subscription term shall be for 12 months each (" Initial Term"), and thereafter, such subscription(s) shall automatically renew for successive 12 month periods (each a " Renewal Term"), unless either party provides the other party at least 7 days' prior written notice to terminate, such notice to expire on the last day of the then-current Initial Term or Renewal Term; and
2.4.2. Training Services, these shall be provided until completion of the Training Services.
2.5. Each Offer Letter shall be part of this Agreement and shall not form a separate contract to it.
3.1. OTD may, in its sole discretion, make one or more Free Services available to You on a trial basis free of charge until the earlier of (a) the fourteenth day, or such later date where agreed in writing between us after the Commencement Date or (b) the start date of any Purchased Services ordered by You (" Free Trial Period ").
3.2. Your Data and any Deliverables, during your Free Trial Period will be permanently lost unless You (a) purchase a subscription to the same Free Service(s) as those covered by the trial; (b) purchase upgraded Services; or (c) export Your Data and/or Deliverables, before the end of the Free Trial Period.
3.3. You cannot transfer Your Data or Deliverables made during the Free Trial Period to a Service that would be a downgrade from that covered by the Free Service (e.g., from the Packages Edition to the Professional Edition (each as further described on the Website)); therefore, if You purchase a Service that would be a downgrade from that covered by the Free Trial Period, You must download Your Data and/or Deliverables before the end of the Free Trial Period or Your Data and/or Deliverables (as the case may be) will be permanently lost.
3.4. Notwithstanding clause 11 (Warranties and Disclaimers), during the Free Trial Period the Free Service(s) are provided "as-is" without any warranty.
3.5. During the Free Trial Period, You consent to OTD accessing Your Project in order to help You understand how to use the Service and process Your Data.
3.6. Please review the User Guide during the Free Trial Period so that You become familiar with the features and functions of the Services before You make Your purchase.
4. SUBSCRIPTION SERVICES
4.1. Provision of Subscription Services. OTD shall make the Subscription Services available to You pursuant to this Agreement and the relevant Offer Letter during the Subscription Term. You agree that Your purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by OTD regarding future functionality or features.
4.2. User Subscriptions. Unless otherwise specified in the applicable Offer Letter, (i) Subscription Services are purchased as individual User subscriptions and may be accessed only by the named Users, (ii) additional User subscriptions may be added at any point during the Subscription Term, and (iii) the added User subscriptions shall be synchronised, on a pro-rata basis, and valid for the remainder of the Subscription Term (for the avoidance of doubt, the Customer shall be required to pay for such additional User Subscriptions in full, in accordance with clause 8.2.1).
4.3. Authorised Users. In relation to User subscriptions, You undertake that: (i) You will not allow any User subscription, specifically the User's username and password, to be used by more than one individual User unless it has been reassigned to a new user (in accordance with clause 4.4 below); (ii) You will ensure that each User shall keep a secure password for their use of the Subscription Services and that each User shall keep their password confidential; (iii) You will ensure that each User uses their own company email address, that is to only be accessible by that User, and that You and Your Users to do not use any group or role-based email address e.g. sales@companyX.com, and (iv) where a User who has had access to the Software leaves the Customer, or where access presents a security risk, You must take all necessary steps to promptly terminate access of such User to the Subscription Services.
4.4. User Changes. A User's subscription may be reassigned to a new User, following receipt of an email requesting the replacement of a User. This email should include the name of the person who no longer needs to use the Subscription Services, the reason for the change, the name, email and office contact details for the new User and the date the change should take place.
4.5. Modifications. Subject to clause 11.1, OTD reserves the right to modify the Subscription Services at any time, with or without notice to You. For example, OTD may add new or modify existing functionality or features, and OTD may suspend or stop a particular feature altogether. Users are informed about significant modifications via Our newsletter and the Website.
4.6. Suspension of the User Subscriptions . OTD reserves the right to suspend any User subscription or password access to the Software if at any time it reasonably considers that there is or is likely to be a breach of security or misuse of the Software, and/or require You to change any or all of the User's usernames and/or passwords used by the Users in connection with the Software.
4.7. OTD's Responsibilities. OTD shall: (i) provide to You support for the Subscription Services at no additional charge; (ii) use commercially reasonable efforts to make the Subscription Services available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which OTD shall give notice and which OTD shall schedule to the extent practicable during the weekend hours from 6:00 pm GMT Friday to 3:00 am GMT Monday, or (b) any unavailability due to an emergency as a result from events, circumstances or causes beyond its reasonable control (as further detailed in clause 16); and (iii) provide the Subscription Services only in accordance with applicable laws and government regulations.
4.8. Your Responsibilities. You shall (i) be responsible for Users' compliance with this Agreement; (ii) be solely responsible for the accuracy, quality, integrity and legality of Your Data and of the means by which You acquired Your Data; (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Subscription Services, and notify OTD promptly of any such unauthorized access or use; (iv) at all times to comply with all access and security procedures provided by OTD; and (v) use the Subscription Services only in accordance with the User Guide and applicable laws and government regulations. You shall not (a) make the Subscription Services available to anyone other than Users; (b) sell, resell, rent or lease the Subscription Services; (c) use the Subscription Services to store or transmit infringing, libellous, or otherwise unlawful or tortuous material, or to store or transmit material in violation of third-party privacy rights; (d) use the Subscription Services to store or transmit Malicious Code; (e) interfere with or disrupt the integrity or performance of the Subscription Services or third-party data contained therein; (f) attempt to gain unauthorized access to the Subscription Services or their related systems or networks; (g) access the Subscription Services for the purposes of monitoring their availability, performance of functionality, or for any other benchmarking or competitive purpose; (h) create derivate works based on the Services; (i) copy, frame or mirror any part or content of the Services, other than copying or framing on Your own intranets or otherwise for Your own internal business purposes; (j) reverse engineer the Subscription Services; or (l) access the Subscription Services in order to (1) build a competitive product or service, or (2) copy any features, functions or graphics of the Subscription Services.
4.9. Usage Limitations. The Subscription Services may be subject to other limitations, such as, for example, limits on disk storage space, on the number of calls You are permitted to make for support. Any such limitations are specified in the User Guide or in the Offer Letter.
5.1. Provision of .HWOL Accreditation Services . OTD shall provide the .HWOL Accreditation Services from the Effective Date until the Laboratory is accredited, in accordance with the terms set out in this Agreement and the relevant Offer Letter.
5.2. A Laboratorycan be accredited by OTD to deliver Our proprietary .hwol data delivery files (".hwol files") to their customers (who in turn are customers of OTD). These .hwol files allow customers of OTD to rapidly upload their laboratory results to the Website for processing. Before a Laboratory can publish .hwol files for use by their customers, they have to go through a testing and accreditation process to confirm that their .hwol files meet the current Specification and that the Website can process their .hwol files (as further detailed in clause 5.3 below).
5.3. Accreditation process. The processes and requirements for accreditation are described in more detail in the Offer Letter to the Laboratory. As part of the accreditation process, OTD will develop a master rulebook for the Laboratory, which will be specific to the Laboratory and will be used by OTD to interpret and process the data in the .hwol files ("Master Rulebook"). The Master Rulebook will be automatically used whenever a User (who is both a customer of the Laboratory and OTD) uses the Services.
5.4. Laboratory's obligations. Participation in the delivery of .hwol files means that a) You agree to work with OTD to produce a working .hwol file and subsequently to obtain accreditation from OTD to allow you to i) publish .hwol files to Your customers and ii) for the Website to accept Your .hwol files for processing, b) You agree to update Your .hwol files to the current version of the Specification within a reasonable period (no more than 6 months after being formerly notified of a new version) and c) following accreditation, You agree to work with OTD to deal with any issues (such as errors, inconsistencies, missing data) pertaining to your .hwol files as may be encountered from time to time either by Users or by OTD, in a timely manner.
6.1. Provision of the Training Services. In supplying the Training Services, OTD shall (a) perform the Training Services with reasonable care and skill; (b) perform the Training Services on such date and time, and at such location (whether in-person or virtually), as set out on the Website (unless otherwise agreed in writing between the parties); (c) comply with all applicable laws and regulations in force from time to time provided that OTD reserves the right to amend the Training Services if necessary to comply with any applicable law or regulatory requirement. OTD reserves the right to alter the Training Services and/or cancel any Training Services in the event of insufficient bookings (as determined in OTD's sole discretion). In the event that OTD cancels the Training Services, OTD shall notify You immediately in writing and issue a refund of the fee, in full, within 30 days of such notice.
6.2. Delegates. The number of delegates which will be able to attend the training course will be set out in the Offer Letter. For any Training Services provided virtually, there shall be no limit on the number of delegates which can attend.
7.1. Your responsibilities. You shall (a) provide OTD with: (i) all necessary co-operation in relation to this Agreement; and (ii) all necessary access to such information as may be required by OTD, in order to provide the Services; (b) comply with all applicable laws and regulations with respect to its activities under this Agreement; (c) obtain and shall maintain all necessary licences, consents, and permissions necessary (including, in respect of Your Data) for OTD, its contractors and agents to perform their obligations under this Agreement, including without limitation the Services; and (d) comply with any additional obligations as may be set out in an Offer Letter from time to time.
7.2. Your Default. If OTD's performance of any of its obligations under this Agreement is prevented or delayed by any act or omission by You or failure by You to perform any relevant obligation ("Your Default"): (a) without limiting or affecting any other right or remedy available to it, OTD shall have the right to suspend performance of the Services until You remedy Your Default, and to rely on Your Default to relieve it from the performance of any of its obligations in each case to the extent Your Default prevents or delays OTD's performance of any of its obligations; (b) OTD shall not be liable for any costs or losses sustained or incurred by You arising directly or indirectly from OTD's failure or delay to perform any of its obligations as set out in this clause 7.2; and (c) You shall reimburse OTD on written demand for any cost or losses sustained or incurred by OTD arising directly or indirectly from Your Default.
8.1. Fees. You shall pay all fees specified in all Offer Letters hereunder. Except as otherwise specified herein or in an Offer Letter, (i) fees are quoted and payable in pounds sterling, (ii) fees are based on services purchased and not actual usage, (iii) payment obligations are non-cancellable and fees paid are non-refundable, and (iv) all amounts due under this Agreement from You to OTD shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
8.2. Subscription Services. The number of User subscriptions purchased cannot be decreased during the relevant Subscription Term stated in the Offer Letter. User subscription fees are based on an annual subscription that begins on the relevant Effective Date.
8.2.1. Fees for Additional Subscriptions (including additional Users, Edition upgrades and extra classification engines) added part way through the Subscription Term will be charged for the full 12 months. At the beginning of the next Renewal Term, any overpayment for one or more additional subscription will be subtracted from the applicable renewal fee on a pro rata basis.
8.2.2. Downgrading Editions Subject to providing OTD with at least 30 days' written notice prior to the end of the Subscription Term, You can elect to a) downgrade from a higher edition to a lower edition, such as from the Packages Edition to the Professional Edition and/or b) reduce the number of classification engines, with such changes to take effect from the first day of the next Renewal Term. However, this will entail creating an entirely new Website Project due to differences in available application features and functionality. All of Your Data will need to be manually transferred by You and Deliverables will need to be recreated by You. Notwithstanding anything to the contrary, any renewal in which subscription volume for the Subscription Services is decreased from the prior Subscription Term will result in re-pricing at renewal without regard to the prior term's per-unit pricing.
8.3 Services fee increase. OTD shall be entitled to increase the fees for the Services at the start of each Renewal Term, subject to providing you with at least 14 days written notice.
8.4 Invoicing and Payment. You will provide OTD with a valid purchase order or alternative document reasonably acceptable to OTD. If You wish to pay by credit card, OTD will send you a credit card payment link from a third-party payment processing company (stripe.com) to allow you to make the payment for the Services listed in the Offer Letter. Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Offer Letter. Unless the Offer Letter specifies that payment will be by credit card, OTD will invoice You in advance and otherwise in accordance with the relevant Offer Letter. Unless otherwise stated in the Offer Letter, invoiced charges are due net 30 days from the invoice date. You are responsible for maintaining complete and accurate billing and contact information with OTD.
8.5. Training Services. Once invoiced, no refunds for the Training Services will be given although substitute delegates are welcome. Delegates can also move their booking to the next available course with Our prior written agreement. All cancellations must be received in writing.
8.6. .HWOL Accreditation Services. You will pay an initial application fee as defined in the Offer Letter, to develop and publish accredited .hwol files and then annually thereafter, an annual HWOL fee to maintain Your accreditation and to support the maintenance of Your .hwol files.
8.7. Overdue Fees. If any fees are not received from You by the due date, then at OTD's discretion, (a) the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 8.7 will accrue each day at 4% a year above the Bank of England's base rate from time to time, but at 4% a year for any period when that base rate is below 0%; and (b) OTD may condition future Offer Letters on payment terms shorter than those specified in clause 8.4 (Invoicing and Payment).
8.8. Suspension of Service and Acceleration. If any amount owing by You under this or any other agreement for any Services is 7 or more days overdue, OTD may, without limiting OTD's other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend any or all Services to You until such amounts are paid in full.
8.9. Payment Disputes. OTD shall not exercise OTD's rights under clauses 8.7 (Overdue Fees) or 8.8 (Suspension of Service and Acceleration) if the applicable charges are under reasonable and good-faith dispute and You (i) are cooperating diligently to resolve the dispute and (ii) have paid the undisputed portion of the applicable fees in accordance with this clause 8.
8.10. Taxes. Unless otherwise stated, OTD'S fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, " Taxes"). You are responsible for paying all Taxes associated with Your purchases hereunder. If OTD has the legal obligation to pay or collect Taxes for which You are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by You, unless You provide OTD with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, OTD are solely responsible for taxes assessable against it based on OTD's income, property and employees.
9.1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, OTD reserve all rights, title and interest in and to OTD IPRs. No rights are granted to You hereunder other than as expressly set forth herein.
9.2. IP Licence.OTD grants the Customer, or shall procure the direct grant to the Customer of, a fully paid-up, worldwide, non-exclusive, royalty-free, licence to copy and modify the Supplier IPRs for the purpose of receiving and using the Services, the Deliverables and/or the .hwol files (as the case may be) in the Customer's business during the term of the Agreement.
9.3. Ownership of Your Data. As between OTD and You, You (and your licensors) exclusively own all rights, title and interest in and to all of Your Data. The Customer grants OTD, or shall procure the direct grant to OTD of, a fully paid-up, worldwide, non-exclusive, royalty-free, non-transferable licence to copy and modify Your Data for the term of the Agreement for the purpose of providing the Services to the Customer in accordance with the Agreement.
9.4. Suggestions. OTD shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by You, including Users, relating to the operation of the Services.
10.1. Definition of Confidential Information. As used herein, "Confidential Information" means all confidential information disclosed by a party (" Disclosing Party") to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information shall include Your Data; OTD's Confidential Information shall include the Services, the Specification and the Master Rulebook (if applicable); and Confidential Information of each party shall include the terms and conditions of this Agreement and all Offer Letters, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information shall not include any information that (i) is or becomes generally known to the public without breach of any obligation by the Receiving Party owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party , which as far as the Receiving Party is aware, is without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
10.2. Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party, (i) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents ("Representatives") who need such access for purposes consistent with this Agreement and (iii) the Receiving Party shall be liable for any non-compliance of the obligations set out in this clause 10 by its Representatives.
10.3. Protection of Your Data. Without limiting the above, OTD shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data. OTD shall not (a) modify Your Data, (b) disclose Your Data except as compelled by law or as expressly permitted in writing by You, or (c) access Your Data except to provide the Services or prevent or address service or technical problems, or with Your permission in connection with customer support matters.
10.4. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party's Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
10.5. Return of Confidential Information. Without prejudice to OTD's right to retain Your Data pursuant to clause 14.4, on termination or expiry of this Agreement, each party shall: (i) destroy or return to the other party all documents and materials (and any copies) containing, reflecting, incorporating or based on the other party's Confidential Information; (ii) erase all the other party's Confidential Information from computer and communications systems and devices used by it, including such systems and data storage services provided by third parties (to the extent technically and legally practicable); and (iii) certify in writing to the other party that it has complied with the requirements of this clause, provided that a recipient party may retain documents and materials containing, reflecting, incorporating or based on the other party's Confidential Information to the extent required by law or any applicable governmental or regulatory authority. The provisions of this clause shall continue to apply to any such documents and materials retained by a recipient party, subject to clause 14 (Termination).
11.1. OTD Warranties. OTD warrant that (i) the Subscription Services shall perform materially in accordance with the User Guide and (ii) the functionality of the Subscription Services will not be materially decreased during the Subscription Term. For any breach of either such warranty, Your exclusive remedy shall be as provided in clause 14.1 (Termination for Cause) and clause 14.2 (Obligations upon Termination) below.
The Subscription Services are provided for indicative purposes only and represent OTD's interpretation of published technical guidance. None of the Subscription Services, Deliverables, and/or Websites are subject to any warranty or condition, express or implied, including, without limitation, any warranty of satisfactory quality, fitness for a particular purpose or use, and non-infringement. OTD does not warrant or guarantee that (i) the provision of any Subscription Services, Deliverables or Websites access will be error free or uninterrupted; (ii) the Software and/or Deliverables obtained by You through the Software will meet Your requirements; or (iii) the Software will be free from Malicious Code.
You acknowledge that electronic communications, databases and websites are subject to errors and tampering and that, notwithstanding OTD's use of reasonable security precautions, OTD (i) does not guarantee or warrant that such events will not take place and (ii) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks or facilities, including the internet, and You acknowledge that the Software may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
11.2. Mutual Warranties. Each party represents and warrants that (i) it has the legal power to enter into this Agreement.
11.3. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, OTD DOES NOT MAKE ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND OTD SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
12.1. Indemnification by OTD. OTD shall defend You against any claim, demand, suit, or proceeding ("Claim") made or brought against You by a third party alleging that the use of the Services as permitted hereunder infringes or misappropriates the Intellectual Property Rights of a third party, and shall indemnify You for any damages finally awarded against, and for reasonable lawyer's fees incurred by, You in connection with any such Claim; provided, that You (a) promptly give OTD written notice of the Claim; (b) give OTD sole control of the defence and settlement of the Claim; and (c) You do not make any admission, or otherwise attempt to compromise or settle the claim and You provide to OTD all reasonable assistance, at OTD's expense.
12.2. OTD's rights. In the defence or settlement of any claim, OTD may procure the right for You to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this Agreement on 2 Business Days' notice to You without any additional liability or obligation to pay liquidated damages or other additional costs to You.
12.3. Exclusions. In no event shall OTD, our employees, agents and sub-contractors be liable to You to the extent that the alleged infringement is based on: (i) a modification of the Services by anyone other than OTD; (ii) Your use of the Services in a manner contrary to the instructions given by OTD to You; or (iii) Your use of the Services after notice of the alleged or actual infringement from OTD or any appropriate authority; or (iv) Your breach of this Agreement.
12.4. Indemnification by You. You shall defend OTD against any Claim made or brought against OTD by a third party alleging that Your Data, or Your use of the Services in violation of this Agreement, infringes or misappropriates the Intellectual Property Rights of a third party or violates applicable law, and shall indemnify OTD for any damages, losses, expenses and costs (including without limitation court costs and reasonable legal fees) suffered or incurred by, OTD in connection with any such Claim; provided, that OTD (a) promptly give You written notice of the Claim; (b) give You sole control of the defence and settlement of the Claim (provided that You may not settle any Claim unless the settlement unconditionally release OTD of all liability); and (c) provide to You all reasonable assistance, at Your expense.
12.5. Exclusive Remedy. This clause 12 (Mutual Indemnification) states the indemnifying party's sole liability to, and the indemnified party's exclusive remedy against, the other party for any type of Claim described in this clause.
13.1. References to liability in this clause 13 include every kind of liability arising under or in connection with this Agreement including but not limited to liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
13.2. Nothing in this clause 13 shall limit Your payment obligations under this Agreement.
13.3. Nothing in this Agreement limits any liability which cannot legally be limited, including but not limited to liability for: (i) for death or personal injury caused by negligence; or (ii) for fraud or fraudulent misrepresentation.
13.4. Subject to clause 13.2 and 13.3, this clause set outs the types of loss that are wholly excluded: (i) loss of profits; (ii) loss of sales or business; (iii) loss of agreements or contracts; (iv) loss of anticipated savings; (v) loss of use or corruption of software, data or information; (vi) loss of or damage to goodwill; and (vii) indirect or consequential loss.
13.5. Subject to clauses 13.2 and 13.3, each party's total aggregate liability to the other Party in respect of all claims, losses or damages, shall be capped at the amount paid by You to OTD during the 12 month period immediately preceding the date of the event giving rise to the claim under consideration.
14.1. Termination for Cause. A party may terminate an Offer Letter or this Agreement for cause (i) immediately if the other party commits a material breach of any term of this Agreement which breach is irremediable or (if such breach is remediable), the other party fails to remedy that breach within 7days after being notified in writing to do so written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) the other party's financial position deteriorates to such an extent that in the terminating party's opinion the other party's capability to adequately fulfil its obligations under this Agreement has been placed in jeopardy.
14.2. Obligations upon Termination. Upon any termination for cause by You, OTD shall refund You any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Upon any termination for cause by OTD, You shall pay any unpaid fees covering the remainder of the term of all Offer Letters after the effective date of termination. In no event shall any termination relieve You of the obligation to pay any fees payable to OTD for the period prior to the effective date of termination. Upon termination of this Agreement for any reason all licences granted under this Agreement shall immediately terminate and You shall immediately cease all use of the Services.
14.3. Return of Your Data. If You require Your Data to be returned, You will need to download Your Data from the relevant interfaces of the Website before the effective date of termination. After termination, OTD shall have no obligation to provide any of Your Data. After 12 months, at OTDs discretion and unless legally prohibited, OTD can decide to delete all of Your Data in OTD's systems or otherwise in OTD's possession or under OTD's control.
14.4. Re-activation of the Service. Following termination of the Purchased Services, OTD will maintain Your Data for a further 12 months. If You require the Purchased Services to be re-activated within this 12-month period, the subscription licences will be reinstated (and shall be deemed to have continued as if they had not been terminated, and shall continue until the end of the Subscription Term). Access to Your Data will also be provided.
14.5. Surviving Provisions. clauses 8 (Fees and Payment for Purchased Services), 9 (Proprietary Rights), 10 (Confidentiality), 11.3 (Disclaimer), 12 (Mutual Indemnification), 13 (Limitation of Liability), 14.2 (Obligations upon Termination), 14.3 (Return of Your Data), 14.4 (Re-activation of the Service) 15 (Governing Law and Jurisdiction) and 18 (General Provisions) shall survive any termination or expiration of this Agreement.
General. This Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with English law and the parties herby submit to the exclusive jurisdiction of the English courts to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Agreement or its subject matter or formation.
Force majeure. OTD shall have no liability to the Customer under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of OTD or any other party), failure of an internet service provider, data centre, utility service or transport network, act of God, war, riot, civil commotion, cyber-attack, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the Customer is notified of such an event and its expected duration.
17.1. General Compliance. Each party shall, at its own expense, ensure that it complies with and assists the other party to comply with the requirements of the Data Protection Legislation. This clause 17 is in addition to, and does not relieve, remove or replace, a party's obligations or rights under the Data Protection Legislation.
17.2. Parties' status. Unless otherwise agreed in relation to a Project, both parties shall share and process personal data as controllers and each party shall comply with all the obligations imposed on a controller under the Data Protection Legislation. In respect of OTD, OTD shall process any personal data that it receives and/or collects from or on behalf of the Customer, in accordance with its privacy policy, which can be accessed here: www.hazwasteonline.com/privacy-policy/ .
17.3. Notices and Consents. Each party shall ensure that it has all necessary notices and consents and lawful bases in place to enable lawful transfer of personal data to the other party, in connection with this Agreement.
18.1. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
18.2. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement and this Agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.
18.3. Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
18.4. Severability. If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Agreement. If any provision or part-provision of this Agreement deleted under this clause 18.4, the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
18.5. Lawyer Fees. You shall pay on demand all OTD's reasonable lawyer's fees and other costs incurred by OTD to collect any fees or charges due OTD under this Agreement following Your breach of any provision of this Agreement.
18.6. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld or delayed). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Offer Letters), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all its assets not involving a direct competitor of the other party (as notified in writing by the other party from time to time). A party's sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party's election, termination of this Agreement upon written notice to the assigning party. In the event of such a termination by You as a result of OTD assigning the Agreement in breach of this clause, OTD shall refund to You any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
18.7. Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Offer Letters, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Offer Letter, the terms of such exhibit, addendum or Offer Letter shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in Your purchase order or other order documentation (excluding Offer Letters) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
18.8. Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, or (iii) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). Notices to You shall be addressed to the system administrator designated by You for Your relevant Services account, and in the case of billing-related notices, to the relevant billing contact designated by You.