By creating an account with Odinomics, you are agreeing to the following, effective as of your sign up date. Agreement
“Access Credentials” means [the usernames, passwords and other credentials enabling access to the Hosted Services, including both access credentials for the User Interface and access credentials for the API]; “Agreement” means this agreement including any Schedules, and any amendments to this Agreement from time to time; “AI Systems” means [machine learning and other artificial intelligence systems, tools, applications, algorithms and/or models]; “API” means [the application programming interface for the Hosted Services defined by the Provider and made available by the Provider to the Customer]; “Business Day” means any weekday other than a bank or public holiday in the United States; “Business Hours” means the hours of [09:00 to 17:00] [EST] on a Business Day; “Charges” means:
(a) [the charges and other payable amounts specified in Section 2 of Schedule 1 (Hosted Services particulars) and elsewhere in this Agreement];
(b) [such charges and payable amounts as may be agreed in writing by the parties from time to time]; and
(c) [charges calculated by multiplying the Provider’s [standard time-based charging rates (as notified by the Provider to the Customer before the date of this Agreement)] by the time spent by the Provider’s personnel performing [the Support Services] (rounded [down by the Provider to the nearest quarter hour])];
(d) [charges calculated based on pre-defined usage rates, such as on a cost per prediction or cost per training second basis.] “Customer Confidential Information” means:
(a) any information disclosed by [or on behalf of] the Customer to the Provider [during the Term] OR [at any time before the termination of this Agreement] (whether disclosed in writing, orally or otherwise) that at the time of disclosure:
(i) was marked [or described] as “confidential”; or
(ii) should have been reasonably understood by the Provider to be confidential; and
(b) [the Customer Data]; “Customer Data” means [all data, works and materials: uploaded to or stored on the Platform by the Customer; transmitted by the Platform at the instigation of the Customer; supplied by the Customer to the Provider for uploading to, transmission by or storage on the Platform; or generated by the Customer using the Hosted Services (but excluding usage data relating to the Platform and Hosted Services, and excluding server log files)]; “Customer Personal Data” [means any Personal Data that is processed by the Provider on behalf of the Customer in relation to this Agreement], but excluding [personal data] with respect to which the Provider is a data controller]; “Data Protection Laws” means [the EU GDPR and the UK GDPR][ and all other applicable laws relating to the processing of Personal Data]; “Documentation” means [the documentation for the Hosted Services produced by the Provider and delivered or made available by the Provider to the Customer]; “Effective Date” means [the date of execution of this Agreement], as determined by a user’s account creation date; “EU GDPR” means the General Data Protection Regulation (Regulation (EU) 2016/679) and all other EU laws regulating the processing of Personal Data, as such laws may be updated, amended and superseded from time to time; “Force Majeure Event” means [an event, or a series of related events, that is outside the reasonable control of the party affected (which may include failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, epidemics, pandemics, explosions, fires, floods, riots, terrorist attacks and wars)]; “Hosted Services” means [access to features of the Odinomics platform, as detailed on our website], as specified [in the Hosted Services Specification] and as updated by the Provider from time to time subject to the restrictions set out in this Agreement]; “Hosted Services Defect” means a defect, error or bug in the Platform having [an adverse effect] OR [a material adverse effect] on [the appearance, operation, functionality or performance] of the Hosted Services[, but excluding any defect, error or bug caused by or arising as a result of:
(a) [any act or omission of the Customer or any person authorised by the Customer to use the Platform or Hosted Services];
(b) [any use of the Platform or Hosted Services contrary to the Documentation, whether by the Customer or by any person authorised by the Customer];
(c) [a failure of the Customer to perform or observe any of its obligations in this Agreement]; and/or
(d) [an incompatibility between the Platform or Hosted Services and any other system, network, application, program, hardware or software not specified as compatible in the Hosted Services Specification];]
“Hosted Services Specification” means the specification for the Platform and Hosted Services set out in [Section 1 of Schedule 1 (Hosted Services particulars) and in the Documentation]; “Intellectual Property Rights” means [all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these “intellectual property rights” include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs)]; “Mobile App” means the mobile application known as [mobile application name] that is made available by the Provider through [the Google Play Store and the Apple App Store]; “Personal Data” [means personal data under any of the Data Protection Laws]; “Platform” means [the platform managed by the Provider and used by the Provider to provide the Hosted Services], including [the application and database software for the Hosted Services, the system and server software used to provide the Hosted Services, and the computer hardware on which that application, database, system and server software is installed]]; “Schedule” means any schedule attached to the main body of this Agreement; “Services” means [any services that the Provider provides to the Customer, or has an obligation to provide to the Customer, under this Agreement]; “Support Services” means [support in relation to the use of, and the identification and resolution of errors in, the Hosted Services]; “Supported Web Browser” means [the current release from time to time of Microsoft Edge, Google Chrome or Apple Safari]; “Term” means [the term of this Agreement, commencing in accordance with Clause 3.1 and ending in accordance with Clause 3.2]; “UK GDPR” means the EU GDPR as transposed into UK law (including by the Data Protection Act 2018 and the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019) and all other UK laws regulating the processing of Personal Data, as such laws may be updated, amended and superseded from time to time; and “User Interface” means [the interface for the Hosted Services designed to allow individual human users to access and use the Hosted Services].
2.1 This document was created using a template from Docular (SaaS agreement).
3.1 This Agreement shall come into force upon the Effective Date.
3.2 This Agreement shall continue in force indefinitely, subject to termination in accordance with Clause 18 or any other provision of this Agreement.
4.1 The Provider [shall provide, or shall ensure that the Platform will provide,] to the Customer upon [the Effective Date] the Access Credentials necessary to enable the Customer to access and use the Hosted Services.
4.2 The Provider hereby grants to the Customer a [worldwide, non-exclusive] licence to use the Hosted Services [by means of [the User Interface and the API]][ for [the internal business purposes of the Customer]][ in accordance with the Documentation] during [the Term].
4.3 The licence granted by the Provider to the Customer under Clause 4.2 is subject to the following limitations:
(a) [the User Interface may only be used through a Supported Web Browser [or the Mobile App]];
(b) [the User Interface may only be used by [the officers, employees, agents and subcontractors of the Customer]];
(c) [the User Interface may only be used by the named users identified in [Schedule 1 (Hosted Services particulars)], providing that the Customer may change, add or remove a designated named user in accordance with [the user change procedure defined by the Hosted Services]];
(d) [the User Interface must not be used at any point in time by more than the number of concurrent users specified in [Schedule 1 (Hosted Services particulars)], providing that the Customer may add or remove concurrent user licences in accordance with [the licence change procedure defined by the Hosted Services]]; and
(e) [the API may only be used by an application or applications[ approved by the Provider in writing and] controlled by the Customer].
4.4 Except to the extent expressly permitted in this Agreement or required by law on a non-excludable basis, the licence granted by the Provider to the Customer under Clause 4.2 is subject to the following prohibitions:
(a) [the Customer must not sub-license its right to access and use the Hosted Services];
(b) [the Customer must not permit any unauthorised person or application to access or use the Hosted Services];
(c) [the Customer must not use the Hosted Services to provide services to third parties];
(d) [the Customer must not republish or redistribute any content or material from the Hosted Services];
(e) [the Customer must not make any alteration to the Platform[, except as permitted by the Documentation]]; and
(f) [the Customer must not conduct or request that any other person conduct any load testing or penetration testing on the Platform or Hosted Services [without the prior written consent of the Provider]].
4.5 The Customer shall implement and maintain reasonable security measures relating to the Access Credentials to ensure that no unauthorised person or application may gain access to the Hosted Services by means of the Access Credentials.
4.6 The Provider shall use reasonable endeavours to maintain the availability of the Hosted Services to the Customer [at the gateway between the public internet and the network of the hosting services provider for the Hosted Services], but does not guarantee 100% availability.
4.7 For the avoidance of doubt, downtime caused directly or indirectly by any of the following shall not be considered a breach of this Agreement:
(a) a Force Majeure Event;
(b) a fault or failure of the internet or any public telecommunications network;
(c) a fault or failure of the Customer’s computer systems or networks;
(d) any breach by the Customer of this Agreement; or
(e) scheduled maintenance carried out in accordance with this Agreement.
4.8 The Customer must comply with Schedule 2 (Acceptable Use Policy), and must ensure that all persons using the Hosted Services with the authority of the Customer[ or by means of the Access Credentials] comply with Schedule 2 (Acceptable Use Policy).
4.9 The Customer must not use the Hosted Services in any way that causes, or may cause, damage to the Hosted Services or Platform or impairment of the availability or accessibility of the Hosted Services.
4.10 The Customer must not use the Hosted Services in any way that uses excessive Platform resources and as a result is liable to cause a material degradation in the services provided by the Provider to its other customers using the Platform; and the Customer acknowledges that the Provider may use reasonable technical measures to limit the use of Platform resources by the Customer for the purpose of assuring services to its customers generally.
4.11 The Customer must not use the Hosted Services:
(a) in any way that is unlawful, illegal, fraudulent or harmful; or
(b) in connection with any unlawful, illegal, fraudulent or harmful purpose or activity; or
4.12 For the avoidance of doubt, the Customer has no right to access the software code (including object code, intermediate code and source code) of the Platform, either during or after the Term.
4.13 The Provider may suspend the provision of the Hosted Services if any amount due to be paid by the Customer to the Provider under this Agreement is overdue, and the Provider has given to the Customer at least [30 days’] written notice, following the amount becoming overdue, of its intention to suspend the Hosted Services on this basis.
5.1 The Provider may from time to time suspend the Hosted Services for the purposes of scheduled maintenance to the Platform[, providing that such scheduled maintenance must be carried out in accordance with this Clause 5].
5.2 The Provider shall[ where practical] give to the Customer [at least 3 Business Days’] prior written notice of scheduled maintenance that will, or is likely to, affect the availability of the Hosted Services[ or have a material negative impact upon the Hosted Services].
5.3 The Provider shall ensure that [all scheduled maintenance] is carried out [outside Business Hours].
6.1 The Provider shall provide the Support Services to the Customer [during the Term].
6.2 The Provider shall provide the Support Services [with reasonable skill and care] OR [in accordance with the standards of skill and care reasonably expected from a leading service provider in the Provider’s industry]
6.3 The Provider shall have no obligation to provide Support Services:
(a) [to the extent that the requested Support Services amount to general training in the use of the Hosted Services];
(b) [in respect of any issue that could have been resolved by a competent person who had received general training in the use of the Hosted Services];
(c) [in respect of any duplicate issues raised by or on behalf of the Customer];
(d) [in respect of any issue caused by the improper use of the Hosted Services by or on behalf of the Customer]; or
(e) [in respect of any issue caused by any alteration to the Hosted Services, or to the configuration of the Hosted Services, made without the prior written consent of the Provider].
6.4 The Provider may suspend the provision of the Support Services if any amount due to be paid by the Customer to the Provider under this Agreement is overdue, and the Provider has given to the Customer at least [30 days’] written notice, following the amount becoming overdue, of its intention to suspend the Support Services on this basis.
7.1 The Customer hereby grants to the Provider a [non-exclusive, worldwide] licence to:
(a) [copy, store and transmit the Customer Data];
(b) [edit, translate and create derivative works of the Customer Data]; and
(c) [distribute and publish the Customer Data[ to the general public under anonymized & summarized conditions, unless authorized by Customer to publish with their identity.]]
[to the extent reasonably required for the performance of the obligations of the Provider under this Agreement] OR [to the extent reasonably required for the performance of the obligations and the exercise of the rights of the Provider under this Agreement]. The Customer also grants to the Provider the right to sub-license these rights [to its hosting, connectivity and telecommunications service providers] strictly for this purpose and subject to any express restrictions elsewhere in this Agreement]. 7.2 The Customer hereby grants to the Provider a [non-exclusive, worldwide] licence to use the Customer Data for [the purposes of creating, generating, training, testing and verifying the AI Systems of the Provider], providing that [such use must not involve the processing of any Customer Personal Data and providing that such AI Systems must not incorporate any Customer Data.]][ The Provider also grants to the Customer the right to sub-license these rights to [sub-licensees] for any purposes, subject to any express restrictions elsewhere in this Agreement.]
7.3 The Customer hereby grants to the Provider a [non-exclusive, worldwide] licence:
(a) to use the Customer Data to create aggregated datasets, providing that those aggregated datasets must not incorporate [any Customer Personal Data, any other Personal Data supplied or made available by the Customer to the Provider, or any information contained in or derived from the Customer Data that identifies the Customer or that identifies any other organisation, business or person (legal or natural)]; the Customer also grants to the Provider a right to sub-license these rights to [sub-licensees] for [purposes], subject to the express restrictions elsewhere in this Agreement]; and
(b) insofar as the use of those aggregated datasets requires the permission of the Customer, to [make unrestricted use of those aggregated datasets, including sub-licensing all or any of the rights therein to any third party or third parties].
7.4 The Customer warrants to the Provider that [the Customer Data] OR [the Customer Data when used by the Provider in accordance with this Agreement] will not infringe the Intellectual Property Rights [or other legal rights] of any person [, and will not breach [the provisions of any law, statute or regulation],][ in [any jurisdiction and under any applicable law]].
7.5 The Provider shall create a back-up copy of [the Customer Data] at least [daily], shall ensure that each such copy is sufficient to [enable the Provider to restore the Hosted Services to the state they were in at the time the back-up was taken], and shall [retain and securely store each such copy for a minimum period of 30 days].
7.6 [Within the period of 5 Business Day following receipt of a written request from the Customer], the Provider shall [use all reasonable endeavours to] restore to the Platform the Customer Data stored [in any back-up copy created and stored by the Provider in accordance with Clause 7.5]. The Customer acknowledges that this process will overwrite the Customer Data stored on the Platform prior to the restoration.
8.1 The parties acknowledge and agree that the use of the Mobile App, the parties’ respective rights and obligations in relation to the Mobile App and any liabilities of either party arising out of the use of the Mobile App shall be subject to separate terms and conditions, and accordingly this Agreement shall not govern any such use, rights, obligations or liabilities.
9.1 Nothing in this Agreement shall operate to assign or transfer any Intellectual Property Rights from the Provider to the Customer, or from the Customer to the Provider.
10.1 The Customer shall pay the Charges to the Provider in accordance with this Agreement.
10.2 If the Charges are based in whole or part upon the time spent by the Provider performing the Services, the Provider must obtain the Customer’s written consent before performing Services that result in any estimate of time-based Charges given to the Customer being exceeded or any budget for time-based Charges agreed by the parties being exceeded; and unless the Customer agrees otherwise in writing, the Customer shall not be liable to pay to the Provider any Charges in respect of Services performed in breach of this Clause 10.2.
10.3 All amounts stated in or in relation to this Agreement are, unless the context requires otherwise, stated [exclusive of any applicable value added taxes or sales taxes, which will be added to those amounts and payable by the Customer to the Provider].
10.4 The Provider may elect to vary [any element of the Charges] by giving to the Customer not less than [30 days’] written notice of the variation[ expiring on [any anniversary of the date of execution of this Agreement]][, providing that no such variation shall constitute a percentage increase in [the relevant element of the Charges] that exceeds[ [2]% over] the percentage increase, since the date of the most recent variation of [the relevant element of the Charges][ under this Clause 10.4] (or, if no such variation has occurred, since the date of execution of this Agreement), in [the Retail Prices Index (all items) published by the UK Office for National Statistics].]
11.1 The Provider shall issue invoices for the Charges to the Customer [from time to time during the Term].
11.2 The Customer must pay the Charges to the Provider within the period of [30 days] following [the issue of an invoice in accordance with this Clause 11] providing that the Charges must in all cases be paid before the commencement of the period to which they relate].
11.3 The Customer must pay the Charges by [debit card, credit card, direct debit or bank transfer] (using such payment details as are notified by the Provider to the Customer from time to time).
11.4 If the Customer does not pay any amount properly due to the Provider under this Agreement, the Provider may:
(a) charge the Customer interest on the overdue amount at the rate of [10% per annum above the Secured Overnight Financing Rate (SOFR) base rate from time to time] (which interest will accrue daily until the date of actual payment and be compounded at the end of each calendar month);
12.1 The Provider must:
(a) keep the Customer Confidential Information strictly confidential;
(b) not disclose the Customer Confidential Information to any person without the Customer’s prior written consent[, and then only under conditions of confidentiality [approved in writing by the Customer];
(c) use the same degree of care to protect the confidentiality of the Customer Confidential Information as the Provider uses to protect the Provider’s own confidential information of a similar nature, being at least a reasonable degree of care;
(d) [act in good faith at all times in relation to the Customer Confidential Information];
12.2 Notwithstanding Clause 12.1, the Provider may disclose the Customer Confidential Information to the Provider’s [officers, employees, professional advisers, insurers, agents and subcontractors] [who have a need to access the Customer Confidential Information for the performance of their work with respect to this Agreement and] who are bound by a written agreement or professional obligation to protect the confidentiality of the Customer Confidential Information.
12.3 This Clause 12 imposes no obligations upon the Provider with respect to:
(a) Customer Confidential Information that is known to the Provider before disclosure under this Agreement and is not subject to any other obligation of confidentiality;
(b) Customer Confidential Information that is or becomes publicly known through no act or default of the Provider;
(c) [Customer Confidential Information that is obtained by the Provider from a third party in circumstances where the Provider has no reason to believe that there has been a breach of an obligation of confidentiality]; or
(d) [information that is independently developed by the Provider without reliance upon or use of any Customer Confidential Information].
12.4 The restrictions in this Clause 12 do not apply to the extent that any Customer Confidential Information is required to be disclosed by any law or regulation, or by any judicial or governmental order or request[, or pursuant to disclosure requirements relating to the listing of the stock of the Provider on any recognised stock exchange].[ If the Provider makes a disclosure to which this Clause 12.4 applies then, to the extent permitted by applicable law, the Provider shall promptly notify the Customer of the fact of the disclosure, the identity of the disclosee, and the Customer Confidential Information disclosed.]
12.5 The provisions of this Clause 12 shall continue in force [for a period of [2 years] following the termination of this Agreement, at the end of which period they will cease to have effect].
13.1 [Each party] shall comply with the Data Protection Laws with respect to the processing of the Customer Personal Data.
13.2 The Customer warrants to the Provider that it has the legal right to disclose all Personal Data that it does in fact disclose to the Provider under or in connection with this Agreement.
13.3 The Customer shall only supply to the Provider, and the Provider shall only process, in each case under or in relation to this Agreement:
(a) the Personal Data of data subjects falling within the categories specified in Section 1 of Schedule 3 (Data processing information)[ (or such other categories as may be agreed by the parties in writing)]; and
(b) Personal Data of the types specified in Section 2 of Schedule 3 (Data processing information)[ (or such other types as may be agreed by the parties in writing)].
13.4 The Provider shall only process the Customer Personal Data for the purposes specified in Section 3 of Schedule 3 (Data processing information).
13.5 The Provider shall only process the Customer Personal Data during the Term[ and for not more than [30 days] following the end of the Term], subject to the other provisions of this Clause 13.
13.6 The Provider shall only process the Customer Personal Data on the documented instructions of the Customer (including with regard to transfers of the Customer Personal Data to a third country under the Data Protection Laws)[, as set out in [this Agreement or any other document agreed by the parties in writing]].
13.7 The Customer hereby authorises the Provider to make the following transfers of Customer Personal Data:
(a) [the Provider may transfer [the Customer Personal Data] internally to [its own employees, offices and facilities] in [jurisdiction(s)], providing that such transfers must be protected by appropriate safeguards, namely [password protected and/or encrypted files and data transfer methods]]];
(b) [the Provider may transfer [the Customer Personal Data] to its third party processors in the jurisdictions identified in Section 5 of Schedule 3 (Data processing information) and may permit its third party processors to make such transfers, providing that such transfers must be protected by any appropriate safeguards identified therein]; and
(c) [the Provider may transfer [the Customer Personal Data] to a country, a territory or sector to the extent that the competent data protection authorities have decided that the country, territory or sector ensures an adequate level of protection for Personal Data].
13.8 The Provider shall promptly inform the Customer if, in the opinion of the Provider, an instruction of the Customer relating to the processing of the Customer Personal Data infringes the Data Protection Laws.
13.9 Notwithstanding any other provision of this Agreement, the Provider may process the Customer Personal Data if and to the extent that the Provider is required to do so by [applicable law]. In such a case, the Provider shall inform the Customer of the legal requirement before processing, unless that law prohibits such information[ on important grounds of public interest].
13.10 The Provider shall ensure that persons authorised to process the Customer Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
13.11 The Provider shall implement appropriate technical and organisational measures to ensure an appropriate level of security for the Customer Personal Data[, including those measures specified in Section 4 of Schedule 3 (Data processing information)].
13.12 The Provider must not engage any third party to process the Customer Personal Data without the prior specific or general written authorisation of the Customer. In the case of a general written authorisation, the Provider shall inform the Customer at least [14 days] in advance of any intended changes concerning the addition or replacement of any third party processor, and if the Customer objects to any such changes before their implementation, then [the Customer may terminate this Agreement on [7 days’] written notice to the Provider, providing that such notice must be given within the period of [7 days] following the date that the Provider informed the Customer of the intended changes. The Provider shall ensure that each third party processor is subject to [equivalent] legal obligations as those imposed on the Provider by this Clause 13.
13.13 As at the Effective Date, the Provider is hereby authorised by the Customer to engage, as sub-processors with respect to Customer Personal Data, [the third parties, and third parties within the categories, identified in] Section 5 of Schedule 3 (Data processing information).
13.14 The Provider shall, insofar as possible and taking into account the nature of the processing, take appropriate technical and organisational measures to assist the Customer with the fulfilment of the Customer’s obligation to respond to requests exercising a data subject’s rights under the Data Protection Laws.
13.15 The Provider shall assist the Customer in ensuring compliance with [the obligations relating to the security of processing of personal data, the notification of personal data breaches to the supervisory authority, the communication of personal data breaches to the data subject, data protection impact assessments and prior consultation in relation to high-risk processing under the Data Protection Laws].[ The Provider may charge the Customer [at its standard time-based charging rates] for any work performed by the Provider at the request of the Customer pursuant to this Clause 13.15.]
13.16 The Provider must notify the Customer of any Personal Data breach affecting the Customer Personal Data without undue delay[ and, in any case, not later than [72] hours after the Provider becomes aware of the breach].
13.17 The Provider shall make available to the Customer all information necessary to demonstrate the compliance of the Provider with its obligations under this Clause 13[ and the Data Protection Laws].[ The Provider may charge the Customer [at its standard time-based charging rates] for any work performed by the Provider at the request of the Customer pursuant to this Clause 13.17[, providing that no such charges shall be levied with respect to [the completion by the Provider (at the reasonable request of the Customer, not more than once per calendar year)] of [the standard information security questionnaire of the Customer]].]
13.18 The Provider shall, at the choice of the Customer, delete or return all of the Customer Personal Data to the Customer after the provision of services relating to the processing, and shall delete existing copies save to the extent that [applicable law] requires storage of the relevant Personal Data.
13.19 The Provider shall allow for and contribute to audits, including inspections, conducted by the Customer or another auditor mandated by the Customer[ in respect of [the compliance of the Provider’s processing of Customer Personal Data with the Data Protection Laws and this Clause 13]].[ The Provider may charge the Customer [at its standard time-based charging rates] for any work performed by the Provider at the request of the Customer pursuant to this Clause 13.19[, providing that no such charges shall be levied where the request to perform the work arises out of [any breach by the Provider of this Agreement or any security breach affecting the systems of the Provider]].]
13.20 If any changes or prospective changes to the Data Protection Laws result or will result in one or both parties not complying with the Data Protection Laws in relation to processing of Personal Data carried out under this Agreement, then the parties shall use their best endeavours promptly to agree such variations to this Agreement as may be necessary to remedy such non-compliance.
14.1 The Provider warrants to the Customer that:
(a) [the Provider has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement];
(b) [the Provider will comply with all applicable legal and regulatory requirements applying to the exercise of the Provider’s rights and the fulfilment of the Provider’s obligations under this Agreement]; and
(c) [the Provider has or has access to all necessary know-how, expertise and experience to perform its obligations under this Agreement].
14.2 The Provider warrants to the Customer that:
(a) [the Platform and Hosted Services will conform in all[ material] respects with the Hosted Services Specification];
(b) [the Hosted Services will be free from Hosted Services Defects];
(c) [the Platform will be free from viruses, worms, Trojan horses, ransomware, spyware, adware and other malicious software programs]; and
(d) [the Platform will incorporate security features reflecting the requirements of good industry practice].
14.3 The Provider warrants to the Customer that the Hosted Services[, when used by the Customer in accordance with this Agreement,] will not breach [any laws, statutes or regulations applicable under English law].
14.4 The Provider warrants to the Customer that the Hosted Services, when used by the Customer in accordance with this Agreement, will not infringe the Intellectual Property Rights of any person [in any jurisdiction and under any applicable law].
14.5 If the Provider reasonably determines, or any third party alleges, that the use of the Hosted Services by the Customer in accordance with this Agreement infringes any person’s Intellectual Property Rights, the Provider may at its own cost and expense:
(a) modify the Hosted Services in such a way that they no longer infringe the relevant Intellectual Property Rights; or
(b) procure for the Customer the right to use the Hosted Services in accordance with this Agreement.
14.6 The Customer warrants to the Provider that it has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement.
14.7 All of the parties’ warranties and representations in respect of the subject matter of this Agreement are expressly set out in this Agreement. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of this Agreement will be implied into this Agreement or any related contract.
15.1 The Customer acknowledges that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of this Agreement, the Provider gives no warranty or representation that the Hosted Services will be wholly free from defects, errors and bugs.
15.2 The Customer acknowledges that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of this Agreement, the Provider gives no warranty or representation that the Hosted Services will be entirely secure.
15.3 The Customer acknowledges that the Hosted Services are designed to be compatible only with that software and those systems [specified as compatible in the Hosted Services Specification]; and the Provider does not warrant or represent that the Hosted Services will be compatible with any other software or systems.
15.4 The Customer acknowledges that the Provider will not provide any [legal, financial, accountancy or taxation advice] under this Agreement or in relation to the Hosted Services; and, except to the extent expressly provided otherwise in this Agreement, the Provider does not warrant or represent that the Hosted Services or the use of the Hosted Services by the Customer will not give rise to any legal liability on the part of the Customer or any other person.
16.1 Nothing in this Agreement will:
(a) limit or exclude any liability for death or personal injury resulting from negligence;
(b) limit or exclude any liability for fraud or fraudulent misrepresentation;
(c) limit any liabilities in any way that is not permitted under applicable law; or
(d) exclude any liabilities that may not be excluded under applicable law.
16.2 The limitations and exclusions of liability set out in this Clause 16 and elsewhere in this Agreement:
(a) are subject to Clause 16.1; and
(b) govern all liabilities arising under this Agreement or relating to the subject matter of this Agreement, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in this Agreement.
16.3 [Neither party shall be liable to the other party] in respect of any losses arising out of a Force Majeure Event.
16.4 [The Provider shall not be liable to the Customer] in respect of any loss of profits or anticipated savings.
16.5 [The Provider shall not be liable to the Customer] in respect of any loss of revenue or income.
16.6 [The Provider shall not be liable to the Customer] in respect of any loss of use or production.
16.7 [The Provider shall not be liable to the Customer] in respect of any loss of business, contracts or opportunities.
16.8 [The Provider shall not be liable to the Customer] in respect of any loss or corruption of any data, database or software.
16.9 [The Provider shall not be liable to the Customer] in respect of any special, indirect or consequential loss or damage.
16.10 The Provider shall not be liable to the Customer for any damages, gains, or other repercussions of a business, financial, monetary or operational nature as a result of Customer’s reliance on Provider’s system.
16.10 The liability of [each party to the other party] under this Agreement in respect of any event or series of related events shall not exceed:
(a) [the total amount paid and payable by the Customer to the Provider under this Agreement in the 12-month period preceding the commencement of the event or events], plus any accrued interest charges.
16.11 The aggregate liability of [each party to the other party] under this Agreement shall not exceed the greater of:
(a) [$100,000 USD]; and
(b) [the total amount paid and payable by the Customer to the Provider under this Agreement], plus any accrued interest charges.
17.1 If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under this Agreement[ (other than any obligation to make a payment)], that obligation will be suspended for the duration of the Force Majeure Event.
17.2 A party that becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in that party performing any obligation under this Agreement, must:
(a) promptly notify the other; and
(b) inform the other of the period for which it is estimated that such failure or delay will continue.
17.3 A party whose performance of its obligations under this Agreement is affected by a Force Majeure Event must take reasonable steps to mitigate the effects of the Force Majeure Event.
18.1 Either party may terminate this Agreement by giving to the other party [at least 30 days’] written notice of termination.
18.2 Either party may terminate this Agreement immediately by giving written notice of termination to the other party if the other party commits a material breach of this Agreement.
18.3 Subject to applicable law, either party may terminate this Agreement immediately by giving written notice of termination to the other party if:
(a) the other party:
(i) is dissolved;
(ii) ceases to conduct all (or substantially all) of its business;
(iii) is or becomes unable to pay its debts as they fall due;
(iv) is or becomes insolvent or is declared insolvent; or
(v) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
(b) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;
(c) an order is made for the winding up of the other party, or the other party passes a resolution for its winding up[ (other than for the purpose of a solvent company reorganisation where the resulting entity will assume all the obligations of the other party under this Agreement)]; or
(d) [if that other party is an individual:
(i) that other party becomes incapable of managing his or her own affairs as a result of illness or incapacity; or
(ii) that other party is the subject of a bankruptcy petition or order,
and if that other party dies then this Agreement shall automatically terminate]
19.1 Upon the termination of this Agreement, all of the provisions of this Agreement shall cease to have effect, save that the following provisions of this Agreement shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): [Clauses 1, 4.12, 8, 11.2, 11.4, 12, 13, 16, 19, 22 and 23].
19.2 Except to the extent expressly provided otherwise in this Agreement, the termination of this Agreement shall not affect the accrued rights of either party.
19.3 Within [30 days] following the termination of this Agreement for any reason:
(a) the Customer must pay to the Provider any Charges in respect of Services provided to the Customer before the termination of this Agreement; and
(b) the Provider must refund to the Customer any Charges paid by the Customer to the Provider in respect of Services that were to be provided to the Customer after the termination of this Agreement, without prejudice to the parties’ other legal rights.
20.1 Any notice from one party to the other party under this Agreement must be given by one of the following methods (using the relevant contact details set out in Clause 20.2 and Section 3 of Schedule 1 (Hosted Services particulars)):
(a) [[delivered personally or sent by courier], in which case the notice shall be deemed to be received [upon delivery]]; or
(b) [sent by [recorded signed-for post], in which case the notice shall be deemed to be received [2 Business Days following posting]], providing that, if the stated time of deemed receipt is not within Business Hours, then the time of deemed receipt shall be when Business Hours next begin after the stated time.
20.2 The Provider’s contact details for notices under this Clause 20 are as follows: [Ryan Daigneault – Ryan@Odinomics.com OR Joel Giovinazzo – Joel@Odinomics.com].
20.3 The addressee and contact details set out in Clause 20.2 and Section 3 of Schedule 1 (Hosted Services particulars) may be updated from time to time by a party giving written notice of the update to the other party in accordance with this Clause 20. 21. Subcontracting
21.1 Subject to any express restrictions elsewhere in this Agreement, the Provider may subcontract any of its obligations under this Agreement[, providing that the Provider must give to the Customer, promptly following the appointment of a subcontractor, a written notice specifying the subcontracted obligations and identifying the subcontractor in question].
21.2 The Provider shall remain responsible to the Customer for the performance of any subcontracted obligations.
21.3 Notwithstanding the provisions of this Clause 21 but subject to any other provision of this Agreement, the Customer acknowledges and agrees that the Provider may subcontract [to any reputable third party hosting business the hosting of the Platform and the provision of services in relation to the support and maintenance of elements of the Platform]. 22. General
22.1 No breach of any provision of this Agreement shall be waived except with the express written consent of the party not in breach.
22.2 If any provision of this Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions of this Agreement will continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant provision will be deemed to be deleted).
22.3 This Agreement may not be varied except by a written document signed by or on behalf of each of the parties.
22.4 Neither party may without the prior written consent of the other party assign, transfer, charge, license or otherwise deal in or dispose of any contractual rights or obligations under this Agreement.
22.5 This Agreement is made for the benefit of the parties and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to this Agreement are not subject to the consent of any third party.
22.6 Subject to Clause 16.1, this Agreement shall constitute the entire agreement between the parties in relation to the subject matter of this Agreement, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.
22.7 This Agreement shall be governed by and construed in accordance with [United States law].
22.8 The courts of [the United States] shall have exclusive jurisdiction to adjudicate any dispute arising under or in connection with this Agreement. 23. Interpretation
23.1 In this Agreement, a reference to a statute or statutory provision includes a reference to:
(a) that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and
(b) any subordinate legislation made under that statute or statutory provision.
23.2 The Clause headings do not affect the interpretation of this Agreement.
23.3 References in this Agreement to “calendar months” are to [the 12 named periods (January, February and so on) into which a year is divided].
23.4 In this Agreement, general words shall not be given a restrictive interpretation by reason of being preceded or followed by words indicating a particular class of acts, matters or things. Execution The parties have indicated their acceptance of this Agreement by executing it below. SIGNED BY Ryan Daigneault & Joel Giovinazzo on [effective date], duly authorised for and on behalf of the Provider]:
SIGNED BY [you, the user] on [effective date], the Customer] Schedule 1 (Hosted Services particulars)
Introduction
1.1 This acceptable use policy (the “Policy”) sets out the rules governing:
(a) the use of [the website at www.odinomics.com, any successor website, and the services available on that website or any successor website] (the “Services”); and
(b) the transmission, storage and processing of content by you, or by any person on your behalf, using the Services (“Content”).
1.2 References in this Policy to “you” are to [any customer for the Services and any individual user of the Services] (and “your” should be construed accordingly); (and “we” and “our” should be construed accordingly).
1.3 By using the Services, you agree to the rules set out in this Policy.
1.4 We will ask for your express agreement to the terms of this Policy before [you upload or submit any Content or otherwise use the Services].
1.5 You must be [at least 18 years of age] to use the Services; and by using the Services, you warrant and represent to us that you are [at least 18 years of age].
General usage rules
2.1 You must not use the Services in any way that causes, or may cause, damage to the Services or impairment of the availability or accessibility of the Services.
2.2 You must not use the Services:
(a) in any way that is unlawful, illegal, fraudulent, deceptive or harmful; or
(b) in connection with any unlawful, illegal, fraudulent, deceptive or harmful purpose or activity.
2.3 You must ensure that all Content complies with the provisions of this Policy.
Unlawful Content
3.1 Content must not be illegal or unlawful, must not infringe any person’s legal rights, and must not be capable of giving rise to legal action against any person (in each case in any jurisdiction and under any applicable law).
3.2 Content[, and the use of Content by us in any manner licensed or otherwise authorised by you,] must not:
(a) [be libellous or maliciously false];
(b) [be obscene or indecent];
(c) [infringe any copyright, moral right, database right, trade mark right, design right, right in passing off, or other intellectual property right];
(d) [infringe any right of confidence, right of privacy or right under data protection legislation];
(e) [constitute negligent advice or contain any negligent statement];
(f) [constitute an incitement to commit a crime, instructions for the commission of a crime or the promotion of criminal activity];
(g) [be in contempt of any court, or in breach of any court order];
(h) [constitute a breach of racial or religious hatred or discrimination legislation];
(i) [constitute a breach of official secrets legislation]; or
(j) [constitute a breach of any contractual obligation owed to any person].
3.3 You must ensure that Content is not and has never been the subject of any threatened or actual legal proceedings or other similar complaint.
Graphic material
4.1 Content must be appropriate for all persons who have access to or are likely to access the Content in question[, and in particular for children[ over 12 years of age]].
4.2 Content must not depict violence[ in an explicit, graphic or gratuitous manner].
4.3 Content must not be pornographic[ or sexually explicit].
Factual accuracy
5.1 Content must not be untrue, false, inaccurate or misleading.
5.2 Statements of fact contained in Content and relating to persons (legal or natural) must be true[; and statements of opinion contained in Content and relating to persons (legal or natural) must be reasonable, be honestly held and indicate the basis of the opinion].
Negligent advice
6.1 Content must not consist of or contain any [legal, financial, investment, taxation, accountancy, medical or other professional] advice, and you must not use the Services to provide any [legal, financial, investment, taxation, accountancy, medical or other professional] advisory services.
6.2 Content must not consist of or contain any advice, instructions or other information that may be acted upon and could, if acted upon, cause death, illness or personal injury, damage to property, or any other loss or damage.
Etiquette
7.1 Content must be appropriate, civil and tasteful, and accord with generally accepted standards of etiquette and behaviour on the internet.
7.2 Content must not be offensive, deceptive, threatening, abusive, harassing, menacing, hateful, discriminatory or inflammatory.
7.3 Content must not be liable to cause annoyance, inconvenience or needless anxiety.
7.4 You must not use the Services to send any hostile communication or any communication intended to insult, including such communications directed at a particular person or group of people.
7.5 You must not use the Services for the purpose of deliberately upsetting or offending others.
7.6 You must not unnecessarily flood the Services with material relating to a particular subject or subject area, whether alone or in conjunction with others.
7.7 You must ensure that Content does not duplicate other content available through the Services.
7.8 You must ensure that Content is appropriately categorised.
7.9 You should use appropriate and informative titles for all Content.
7.10 You must at all times be courteous and polite to other users of the Services.
Marketing and spam
8.1 You must not [without our written permission] use the Services for any purpose relating to [the marketing, advertising, promotion, sale or supply of any product, service or commercial offering].
8.2 Content must not constitute or contain spam, and you must not use the Services to store or transmit spam - which for these purposes shall include [all unlawful marketing communications and unsolicited commercial communications].
8.3 You must not send any spam[ or other marketing communications] to any person using any email address[ or other contact details] made available through the Services or that you find using the Services.
8.4 You must not use the Services to promote, host or operate any chain letters, Ponzi schemes, pyramid schemes, matrix programs, multi-level marketing schemes, “get rich quick” schemes or similar letters, schemes or programs.
8.5 You must not use the Services in any way which is liable to result in the blacklisting of any of our IP addresses.
Regulated businesses
9.1 You must not use the Services for any purpose relating to [gambling, gaming, betting, lotteries, sweepstakes, prize competitions or any gambling-related activity].
9.2 You must not use the Services for any purpose relating to [the offering for sale, sale or distribution of drugs or pharmaceuticals].
9.3 You must not use the Services for any purpose relating to [the offering for sale, sale or distribution of knives, guns or other weapons].
Monitoring
10.1 You acknowledge that [we may actively monitor the Content and the use of the Services].
Data mining
11.1 You must not conduct any systematic or automated data scraping, data mining, data extraction or data harvesting, or other systematic or automated data collection activity, by means of or in relation to the Services.
Hyperlinks
12.1 You must not link to any material using or by means of the Services that would, if it were made available through the Services, breach the provisions of this Policy.
Harmful software
13.1 The Content must not contain or consist of, and you must not promote, distribute or execute by means of the Services, any viruses, worms, spyware, adware or other harmful or malicious software, programs, routines, applications or technologies.
13.2 The Content must not contain or consist of, and you must not promote, distribute or execute by means of the Services, any software, programs, routines, applications or technologies that will or may have a material negative effect upon the performance of a computer or introduce material security risks to a computer.
Schedule 3 (Data processing information)
Categories of data subject
Any personal, individual, entity or agent related to either the Customer or Provider.
Types of Personal Data
Because Odinomics is a broad platform for analyzing data, the data subject in this agreement is broad, covering any and all data uploaded or generated by users.
Purposes of processing
Personal data may be processed for any and all necessary business purposes, including for marketing, operating and financial analytics.
Security measures for Personal Data
Personal data is kept encrypted and where possible, only stored with reputable third party providers (i.e., Amazon Web Services) in secure data centers.
