These current consolidated Terms were published on 30th April 2021. For previous versions, see www.object-matrix.com/legals/mct/history.
These Terms set out the terms and conditions that govern your access to and use of the Service Offerings (as defined below) and is an agreement between Object Matrix Limited (company registration number: 04933751) with registered office at 14th Floor, Capital Tower, Greyfriars Road, Cardiff, United Kingdom, CF10 3AG (referred to as “Object Matrix”, “we,” “us,” or “our”) and you or the entity you represent as specified in the Quote (referred to as “Customer”, “you” or “your”).
The “Agreement” between Object Matrix and Customer is comprised of these Terms and documents referred to at clause 1.2.2 below (as updated from time to time).
This Agreement takes effect upon the earlier of (i) the date on which the Quote is accepted by the Customer; or (ii) when you use any of the Services (“Effective Date”).
1. Definitions and interpretation
1.1. The definitions and rules of interpretation set out in Schedule 1 shall apply to our Agreement.
1.2. In our Agreement:
(i) each Quote entered into by the Customer shall form a separate agreement, incorporating these Terms together with the Data Protection Addendum (where applicable), the Subscribed Service Specific Terms and the Policies (together our “Agreement”);
(ii) in the event of any conflict in respect of the provisions of our Agreement and/or the documents referred to therein the following order of priority shall prevail (in descending order of priority):
1.2.ii.1. the Quote;
1.2.ii.2. the Service Specific Terms;
1.2.ii.3. the Data Protection Addendum;
1.2.ii.4. the Policies;
1.2.ii.5. these Terms; and
1.2.ii.6. the Documentation; and
(iii) subject to the order of priority between documents in clause (ii), later versions of documents shall prevail over earlier ones if there is any conflict or inconsistency between them.
1.3. Any obligation of Object Matrix under our Agreement to comply or ensure compliance by any person or the Services with any law shall be limited to compliance only with laws within the Subscribed Territory as generally applicable to businesses and to providers of software as a service solutions. Such obligations shall not be construed to create any obligation on Object Matrix (or anyone acting on its behalf) or any part of the Services to comply with any laws or regulations which apply solely to specific commercial or other activities (such as insurance, legal advice or banking or other professional services) or which apply solely to a specific commercial or non-commercial sector (or part thereof) (such as the public, legal, accountancy, actuarial, insurance, banking or financial service sectors).
2. Scope
2.1. Object Matrix shall provide the Services, Hardware and Software in accordance with the our Agreement and the following key terms::
(i) Schedule 2 – Cloud Services;
(ii) Schedule 3 – Hardware;
(iii) Schedule 4 – Software; and
(iv) Schedule 5 – Support Services;
2.2. Unless otherwise specified in the Quote, the Customer acknowledges that the Services (or any Hardware / Software supplied) do not include:
(i) any services, systems or equipment required to access the internet (and that the Customer is solely responsible for procuring access to the internet and for all costs and expenses in connection with internet access, communications, data transmission and wireless or mobile charges incurred by it in connection with use of the Services);
(ii) dedicated data back up or disaster recovery facilities (and the Customer should ensure it at all times maintains backups of all Customer Data); or
(iii) legal, accounting or other professional or regulated services and that, except as expressly stated in our Agreement, no assurance is given that the Services will comply with or satisfy any legal or regulatory obligation of any person.
3. Customer’s responsibilities
3.1. The Customer shall:
(i) at all times comply with the terms of the Agreement and all applicable law relevant to this Agreement, the Parties and/or the Services;
(ii) provide such reasonable assistance and information as is reasonably requested by Object Matrix in connection with the Services;
(iii) perform each of its obligations and responsibilities set out in the Agreement in accordance with any timescales specified;
(iv) comply with Object Matrix’s reasonable instructions from time to time;
(v) ensure that any information provided to Object Matrix relevant to its receipt of the Services is accurate and up to date; and
(vi) where applicable, obtain and maintain in full force all necessary consents, approvals, authorisations, licences and permissions which are required to enable Object Matrix to perform its obligations under this Agreement and/or under applicable law.
4. Fees
4.1. The Fees and any other charges (including expenses) expressly agreed between the parties in writing shall be paid by the Customer at the rates and in the manner described in the Quote.
4.2. Unless otherwise specified in the Quote or this Agreement, Object Matrix shall invoice the Customer as follows:
(i) monthly in advance for Cloud Services Fees;
(ii) at point of shipment for Hardware; and
(iii) on delivery of the Software licence or activation of the Software by Object Matrix (whichever the sooner).
and any invoices shall be paid within 30 calendar days of the date on the invoice unless otherwise specified in the Quote.
4.3. The Fees are exclusive of VAT which shall be payable by the Customer at the rate and in the manner prescribed by law.
4.4. Fees payable to Object Matrix under our Agreement shall be paid into Object Matrix’s bank account by electronic funds transfer unless otherwise notified by Object Matrix to the Customer in writing.
4.5. Object Matrix shall have the right to charge interest on overdue invoices at the rate of 8% per year above the base rate of the Bank of England, calculated from the date when payment of the invoice becomes due for payment up to and including the date of actual payment whether before or after judgment.
4.6. Object Matrix shall be entitled to increase the Fees for any and all Services by providing notice to the Customer provided that Object Matrix shall not be entitled to increase the Fees on less than 30 days prior notice or more than once every 12 months.
4.7. To the extent our Agreement terminates or expires (other than due to termination by the Customer under clause 9.2 or paragraph 12.4 of Schedule 2) the Customer shall not be entitled to any refund or discount of Fees paid for Hardware, Software or for any parts of any month during which Services cease to be provided.
5. Indemnity
5.1. The Customer shall indemnify, keep indemnified and hold harmless Object Matrix (on Object Matrix’s behalf and on behalf of each of Object Matrix’s Affiliates) from and against any losses, claims, damages, liability, Data Protection Losses, costs (including legal and other professional fees) and expenses incurred by it (or any of its Affiliates) as a result of the Customer’s breach of our Agreement.
5.2. This clause 5 shall survive termination or expiry of our Agreement.
6. Object Matrix’s confidential information
6.1. The Customer shall maintain the confidentiality of Object Matrix’s Confidential Information and shall not without the prior written consent of Object Matrix, disclose, copy or modify Object Matrix’s Confidential Information (or permit others to do so) other than as necessary for the performance of its express rights and obligations under our Agreement.
6.2. The Customer undertakes to:
(i) disclose Object Matrix’s Confidential Information only to those of its officers, employees, agents and contractors to whom, and to the extent to which, such disclosure is necessary for the purposes contemplated under our Agreement;
(ii) procure that such persons are made aware of and agree in writing to observe the obligations in this clause 6; and
(iii) be responsible for the acts and omissions of those third parties referred to in this clause 6.2 as if they were the Customer’s own acts or omissions.
6.3. The Customer shall give notice to Object Matrix of any unauthorised use, disclosure, theft or loss of Object Matrix’s Confidential Information immediately upon becoming aware of the same.
6.4. The provisions of this clause 6 shall not apply to information which:
(i) is or comes into the public domain through no fault of the Customer, its officers, employees, agents or contractors;
(ii) is lawfully received by the Customer from a third party free of any obligation of confidence at the time of its disclosure;
(iii) is independently developed by the Customer, without access to or use of Object Matrix’s Confidential Information; or
(iv) is required by law, by court or governmental or regulatory order to be disclosed provided that the Customer, where possible, notifies Object Matrix at the earliest opportunity before making any disclosure.
6.5. This clause 6 shall survive the termination or expiry of our Agreement for a period of ten (10) years.
7. Relief
To the maximum extent permitted by law, Object Matrix shall not be liable (under any legal theory, including negligence) for any breach, delay or default in the performance of our Agreement to the extent the same (or the circumstances giving rise to the same) arises or was contributed to by any Relief Event.
8. Limitation of liability
8.1. The extent of Object Matrix’s liability under or in connection with our Agreement (regardless of whether such liability arises in tort, contract or in any other way and whether or not caused by negligence or misrepresentation or under any indemnity) shall be as set out in this clause 8.
8.2. Subject to the provisions of this clause 9, Object Matrix’s aggregate liability in respect of each individual Subscribed Service (and all Support Services provided in connection with the same) (howsoever arising under or in connection with our Agreement) shall not exceed the greater of:
(i) an amount equal to the Fees for the relevant Subscribed Service (that is subject to the claim) due or paid to Object Matrix by the Customer in the 12-month period immediately preceding the first incident giving rise to any claim under our Agreement; or
(ii) an amount equal to 12 times the Fees for the relevant Subscribed Service (that is subject to the claim) due or paid to Object Matrix for the first month of the relevant Subscribed Service Period.
8.3. Subject to the provisions of this clause 9, Object Matrix’s aggregate liability in respect of each individual Free or Trial Service (and all Support Services provided in connection with the same) (howsoever arising under or in connection with our Agreement) shall not exceed £100.
8.4. Subject to the provisions of this clause 9, Object Matrix’s total aggregate liability howsoever arising under or in connection with this Agreement shall not exceed the value of the Hardware, Software or Services supplied by Object Matrix to which the cause of action, claim, loss or damage relates.
8.5. Subject to clause 8.7, Object Matrix shall not be liable for consequential, indirect or special losses.
8.6. Subject to clause 8.7, Object Matrix shall not be liable for any of the following (whether direct or indirect):
(i) loss of profit;
(ii) destruction, loss of use or corruption of data;
(iii) loss or corruption of software or systems;
(iv) loss or damage to equipment;
(v) loss of use;
(vi) loss of production;
(vii) loss of contract;
(viii) loss of opportunity;
(ix) loss of savings, discount or rebate (whether actual or anticipated); and/or
(x) harm to reputation or loss of goodwill.
8.7. Notwithstanding any other provision of our Agreement, Object Matrix’s liability shall not be limited in any way in respect of the following:
(i) death or personal injury caused by negligence;
(ii) fraud or fraudulent misrepresentation; or
(iii) any other losses which cannot be excluded or limited by applicable law.
8.8. This clause 8 shall survive the termination or expiry of our Agreement.
9. Term and termination
9.1. Our Agreement shall come into force on Order Acceptance and, unless terminated earlier in accordance with its terms, shall continue for the longer of: (i) the duration the Services supplied by Object Matrix); (ii) the duration of any Software licence; or (iii) until such time as Object Matrix has fulfilled its obligations (in the case where only Hardware is delivered). This Agreement shall automatically renew where specified in the Schedule to this Agreement, the Quote or any Service Specific Terms.
9.2. Either party may terminate our Agreement or the relevant Services (as applicable) immediately at any time by giving notice in writing to the other party if:
(i) the other party commits a material breach of our Agreement and such breach is not remediable;
(ii) the other party commits a material breach of our Agreement which is not remedied within 20 Business Days of receiving written notice of such breach; or
(iii) the other party has failed to pay any amount due under our Agreement on the due date and such amount remains unpaid within 20 Business Days after the other party has received notification that the payment is overdue.
9.3. Object Matrix may terminate or suspend the provision of Free or Trial Services (and all related Support Services) at any time with or without notice.
9.4. Any breach by the Customer of the Acceptable Use Policy or of clauses 3 or 5 shall be deemed a material breach of our Agreement which is not remediable.
10. Consequences of termination
10.1. Immediately on termination or expiry of our Agreement (for any reason), the rights granted by Object Matrix under our Agreement shall terminate and the Customer shall (and shall procure that each User and Authorised Affiliate shall):
(i) stop using the Services and any Software (as applicable); and
(ii) destroy and delete or, if requested by Object Matrix, return any copies of the Documentation or Object Matrix Confidential Information in its possession or control (or in the possession or control of any person acting on behalf of any of them).
10.2. Termination or expiry of our Agreement shall not affect any accrued rights and liabilities of either party at any time up to the date of termination or expiry and shall not affect any provision of our Agreement that is expressly or by implication intended to continue beyond termination.
11. Anti-bribery
11.1. For the purposes of this clause 11 the expressions ‘adequate procedures’ and ‘associated with’ shall be construed in accordance with the Bribery Act 2010 and guidance published under it.
11.2. The Customer shall ensure that it and each person referred to in clauses 11 (i) to (iii) (inclusive) does not, by any act or omission, place Object Matrix in breach of any Bribery Laws. The Customer shall comply with all applicable Bribery Laws in connection with the performance of the Services and this Agreement, ensure that it has in place adequate procedures to prevent any breach of this clause 11 and ensure that:
(i) all of the Customer’s personnel and all direct and indirect subcontractors of the Customer;
(ii) all others associated with the Customer; and
(iii) each person employed by or acting for or on behalf of any of those persons referred to in clauses 11 (i) and/or (ii),
involved in connection with this Agreement so comply.
11.3. Without limitation to clause 11.2, the Customer shall not make or receive any bribe (which term shall be construed in accordance with the Bribery Act 2010) or other improper payment or advantage, or allow any such to be made or received on its behalf, either in the UK or elsewhere, and will implement and maintain adequate procedures to ensure that such bribes or improper payments or advantages are not made or received directly or indirectly on its behalf.
11.4. The Customer shall immediately notify the Object Matrix as soon as it becomes aware of a breach of any of the requirements in this clause 11.
11.5. Any breach of this clause 11 by the Customer shall be deemed a material breach of this Agreement that is not remediable and shall entitle Object Matrix to immediately terminate this Agreement.
12. Modern slavery
12.1. The Customer undertakes, warrants and represents that:
(i) neither the Customer nor any of its officers, employees, agents or subcontractors has:
12.1.i.1. committed an offence under the Modern Slavery Act 2015 (an MSA Offence); or
12.1.i.2. been notified that it is subject to an investigation relating to an alleged MSA Offence or prosecution under the Modern Slavery Act 2015; or
12.1.i.3. is aware of any circumstances within its supply chain that could give rise to an investigation relating to an alleged MSA Offence or prosecution under the Modern Slavery Act 2015;
(ii) it shall comply with the Modern Slavery Act 2015.
(iii) it shall notify the Object Matrix immediately in writing if it becomes aware or has reason to believe that it, or any of its officers, employees, agents or subcontractors have breached or potentially breached any of the Customer’s obligations under clause 12. Such notice to set out full details of the circumstances concerning the breach or potential breach of the Customer’s obligations.
12.2. Any breach of clause 12 by the Customer shall be deemed a material breach of the Agreement and shall entitle Object Matrix to terminate the Agreement.
13. Entire agreement
13.1. Our Agreement constitutes the entire agreement between the parties and supersedes all previous agreements, understandings and arrangements between them in respect of its subject matter, whether in writing or oral.
13.2. Each party acknowledges that it has not entered into our Agreement in reliance on, and shall have no remedies in respect of, any representation or warranty that is not expressly set out in our Agreement.
13.3. Nothing in our Agreement shall limit or exclude any liability for fraud.
14. Notices
14.1. Any notice or other communication given by a party under our Agreement shall be:
(i) in writing and in English;
(ii) signed by, or on behalf of, the party giving it (except for notices sent by email); and
(iii) sent to the relevant party at the address set out in clause 14.3.
14.2. Notices may be given, and are deemed received:
(i) by hand: on receipt of a signature at the time of delivery;
(ii) by Royal Mail Recorded Signed For post: at 9.00 am on the second Business Day after posting;
(iii) by Royal Mail International Tracked & Signed OR Royal Mail International Signed post: at 9.00 am on the fourth Business Day after posting; and
(iv) by email: on receipt of a delivery receipt email from the correct address.
14.3. Notices and other communications shall be sent to:
(i) in the case of those to Object Matrix, for the attention of Head of Legals at:
Object Matrix, Capital Tower, Greyfriars Rd, Cardiff, CF10 3AG
omaccounts@object-matrix.com;
(ii) in the case of those to the Customer, to any email or physical address or contact details notified on the Quote (as updated from time to time pursuant to clause 14.4).
14.4. Any change to the contact details of a party as set out in clause 14.3 shall be notified to the other party in accordance with clause 14.1 and shall be effective:
(i) on the date specified in the notice as being the date of such change; or
(ii) if no date is so specified, five Business Days after the notice is deemed to be received.
14.5. This clause does not apply to notices given in legal proceedings or arbitration.
15. Variation
15.1. No variation of our Agreement shall be valid or effective unless it is:
(i) an Update made in accordance with our Agreement; or
(ii) made in writing, refers to our Agreement and is duly signed or executed by, or on behalf of, each party.
16. Assignment and subcontracting
16.1. Except as expressly provided in our Agreement, Object Matrix may at any time assign, sub-contract, sub-licence (including by multi-tier), transfer, mortgage, charge, declare a trust of or deal in any other manner with any or all of its rights or obligations under our Agreement.
16.2. Except as expressly permitted by our Agreement, the Customer shall not assign, transfer, sub-contract, sub-licence, mortgage, charge, declare a trust of or deal in any other manner with any or all of its rights or obligations under our Agreement (including the licence rights granted), in whole or in part, without Object Matrix’s prior written consent.
17. Set off
Each party shall pay all sums that it owes to the other party under our Agreement without any set-off, counterclaim, deduction or withholding of any kind, save as may be required by law.
18. No partnership or agency
The parties are independent and are not partners or principal and agent and our Agreement does not establish any joint venture, trust, fiduciary or other relationship between them, other than the contractual relationship expressly provided for in it. Neither party shall have, nor shall represent that it has, any authority to make any commitments on the other party’s behalf.
19. Severance
19.1. If any provision of our Agreement (or part of any provision) is or becomes illegal, invalid or unenforceable, the legality, validity and enforceability of any other provision of our Agreement shall not be affected.
19.2. If any provision of our Agreement (or part of any provision) is or becomes illegal, invalid or unenforceable but would be legal, valid and enforceable if some part of it was deleted or modified, the provision or part-provision in question shall apply with such deletions or modifications as may be necessary to make the provision legal, valid and enforceable. In the event of such deletion or modification, the parties shall negotiate in good faith in order to agree the terms of a mutually acceptable alternative provision.
20. Waiver
20.1. No failure, delay or omission by either party in exercising any right, power or remedy provided by law or under our Agreement shall operate as a waiver of that right, power or remedy, nor shall it preclude or restrict any future exercise of that or any other right, power or remedy.
20.2. No single or partial exercise of any right, power or remedy provided by law or under our Agreement shall prevent any future exercise of it or the exercise of any other right, power or remedy.
20.3. A waiver of any term, provision, condition or breach of our Agreement shall only be effective if given in writing and signed by the waiving party, and then only in the instance and for the purpose for which it is given.
21. Costs and expenses
Each party shall pay its own costs and expenses incurred in connection with the negotiation, preparation, signature and performance of our Agreement (and any documents referred to in it).
22. Third party rights
A person who is not a party to our Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of its provisions.
23. Authority
Each party represents and warrants to the other that it has the right, power and authority to enter into our Agreement and grant to the other the rights (if any) contemplated in our Agreement and to perform its obligations under our Agreement.
24. Governing law
Our Agreement and any dispute or claim arising out of, or in connection with, it, its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of England and Wales.
25. Jurisdiction
The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of, or in connection with, our Agreement, its subject matter or formation (including non-contractual disputes or claims).
Schedule 1 – Definitions and Interpretation
1. In our Agreement:
| Affiliate | means, in respect of any entity, any entity that directly or indirectly controls, is controlled by or is under common control with that entity within the meaning set out in section 1124 of the Corporation Tax Act 2010; |
| Authorised Affiliates | means, in respect of the relevant Subscribed Service, the Affiliates of the Customer (if any) identified in the Quote as Authorised Affiliates in respect of that Subscribed Service; |
| Bribery Laws | means the Bribery Act 2010 and associated guidance published by the Secretary of State for Justice under the Bribery Act 2010 and all other applicable United Kingdom laws, legislation, statutory instruments and regulations in relation to bribery or corruption; |
| Business Day | means a day other than a Saturday, Sunday or bank or public holiday in England; |
| Customer | has the meaning given in the relevant Quote; |
| Customer Data | means all data (in any form) that is provided to Object Matrix or uploaded or hosted on any part of any Subscribed Service by the Customer or by any User (but excluding Feedback as defined in clause 5.5); |
| Data Protection Addendum | means the addendum identifying certain respective rights and obligations of the parties’ in respect of personal data and privacy under our Agreement (as Updated from time to time), which as at Order Acceptance is the latest version available at www.object-matrix.com/legals/dpa |
| Data Protection Losses | has the meaning given to that term in the Data Protection Addendum; |
| Documentation | means the description of the relevant Hardware, Software or Services (as Updated from time to time) made available by Object Matrix to Customer; |
| Fees | means the fees and charges (together with any other amounts agreed) payable to Object Matrix under our Agreement; |
| Force Majeure | means an event or sequence of events beyond a party’s reasonable control preventing or delaying it from performing its obligations under our Agreement (provided that an inability to pay is not Force Majeure), including any matters relating to transfer of data over public communications networks and any delays or problems associated with any such networks or with the internet; |
| Free or Trial Service | means any Subscribed Service identified as being provided on a trial basis or provided without charge (for the duration of the period during which it is provided on such basis); |
| Intellectual Property Rights | means any and all copyright, rights in inventions, patents, know-how, trade secrets, trade marks and trade names, service marks, design rights, rights in get-up, database rights and rights in data, semiconductor chip topography rights, utility models, domain names and all similar rights and, in each case: (a) whether registered or not; (b) including any applications to protect or register such rights; (c) including all renewals and extensions of such rights or applications; (d) whether vested, contingent or future; and (e) wherever existing; |
| Terms | means the terms set out in the clauses and other provisions of this document, as Updated from time to time; |
| Materials | means all services, data, information, content, Intellectual Property Rights, websites, software and other materials provided by or on behalf of Object Matrix in connection with the Services, but excluding all Customer Data; |
| Non-Object Matrix Materials | means Materials provided, controlled or owned by or on behalf of a third party the use of which is subject to a separate agreement or licence between the Customer and the relevant third party (including such Non-Object Matrix Materials which may be linked to, interact with or used by the Services) and all other Materials expressly identified as Non-Object Matrix Materials in our Agreement; |
| Order Acceptance | means the date on which, following the Customer’s receipt of the Quote, Object Matrix accepts the Customer’s purchase order; |
| Quote | means the electric or physical form (including its schedules, annexes and appendices (if any)) provided by Object Matrix in respect of the Customer’s order for Services, incorporating these Terms and our Agreement (and as varied by the parties by agreement in writing from time to time); |
| Permitted Purpose | means use solely for the Customer’s internal business operations and, in respect of each Services, also for the internal business of operations of the Authorised Affiliates identified in respect of that Subscribed Service on the Quote, in each case in accordance with the applicable Documentation and our Agreement. Permitted Purpose expressly excludes any of the following to the maximum extent permitted by law: (a) copying, reproducing, publishing, distributing, redistributing, broadcasting, transmitting, modifying, adapting, editing, abstracting, storing, archiving, displaying publicly or to third parties, selling, licensing, leasing, renting, assigning, transferring, disclosing (in each case whether or not for charge) or in any way commercially exploiting any part of any Subscribed Service or Documentation; (b) permitting any use of any Subscribed Service or Documentation in any manner by any third party (including permitting use in connection with any timesharing or service bureau, outsourced or similar service to third parties or making any Subscribed Service or Documentation (or any part) available to any third party or allowing or permitting a third party to do any of the foregoing (other than to the Authorised Affiliates for the Permitted Purpose)); (c) combining, merging or otherwise permitting any Subscribed Service (or any part of it or any Application) to become incorporated in any other program or service, or arranging or creating derivative works based on it (in whole or in part); or (d) attempting to reverse engineer, observe, study or test the functioning of or decompile the Applications or the Services (or any part), except as expressly permitted under our Agreement. |
| Policies | means each of the following: (a) Object Matrix’s policy on acceptable use of the Services (as Updated from time to time), which available at www.object-matrix.com/legals/aup (the “Acceptable Use Policy”); and (b) Object Matrix’s privacy policy in relation to the Services (as Updated from time to time), which is available at www.object-matrix.com/legals/pp (the “Privacy Policy”); |
| Protected Data | has the meaning given in the Data Protection Addendum; |
| Relief Event | means: (a) any breach of our Agreement by the Customer; or (b) any Force Majeure; |
| Renewal Date | has the meaning given in clause 11.1; |
| Service Period | means the period beginning on Order Acceptance and ending with the last of the Subscribed Service Periods; |
| Services | means the Cloud Services, Support Services and such other professional services as specified in the Quote or otherwise agreed between the parties from time to time (as applicable); |
| Cloud Service Period | means (subject to clauses 9 and 11) in respect of the Cloud Services, the duration during which such services are to be provided as initially set out in the Quote and as varied in accordance with our Agreement; |
| Service Specific Terms | means the specific additional or amended terms relevant to the Services (as updated from time to time) which as at Order Acceptance are available at www.object-matrix.com/legal/sst/; |
| Cloud Service(s) | means each cloud service to which the Customer has subscribed in accordance with Schedule 2 and as set out in the Quote; |
| Subscribed Territory | means, in respect of the relevant Subscribed Service, the territories identified in the Quote except to the extent it is illegal (including as a result of any embargo) under the laws of the United States, any member of the European Union or the United Kingdom (as binding on any person) for the Subscribed Service to be provided to or received within such territories from time to time; |
| Object Matrix | has the meaning given set out at the beginning of these Terms; |
| Object Matrix Provided Materials | means all of the Materials provided or made available by or on behalf of Object Matrix, but excluding all Customer Data and all Non-Object Matrix Materials; |
| Object Matrix’s Confidential Information | means all information (whether in oral, written or electronic form) relating to Object Matrix’s business which may reasonably be considered to be confidential in nature including information relating to Object Matrix’s technology, know-how, Intellectual Property Rights, assets, finances, strategy, products and customers. All information relating to the Fees, the Description and any other technical or operational specifications or data relating to each Subscribed Service shall be part of Object Matrix’s Confidential Information; |
| Support Services | means, in respect of the relevant Service, the support services provided by Object Matrix to the Customer in accordance with Schedule 5 and as described in the Service Specific Terms; |
| Update | has the meaning given in paragraph 12.3 of Schedule 2 and Updated shall be construed accordingly; |
| Update Notification | has the meaning given in paragraph 12.1 of Schedule 2; and |
| Users | means, in respect of the relevant Subscribed Service or Software, the users authorised by the Customer to use that Subscribed Service in accordance with the terms of our Agreement; |
| VAT | means United Kingdom value added tax, any other tax imposed in substitution for it and any equivalent or similar tax imposed outside the United Kingdom. |
2. In our Agreement, unless otherwise stated:
2.1. the table of contents, background section and the clause, paragraph, schedule or other headings in our Agreement are included for convenience only and shall have no effect on interpretation;
2.2. Object Matrix and the Customer are together the parties and each a party, and a reference to a party includes that party’s successors and permitted assigns;
2.3. words in the singular include the plural and vice versa;
2.4. any words that follow ‘include’, ‘includes’, ‘including’, ‘in particular’ or any similar words and expressions shall be construed as illustrative only and shall not limit the sense of any word, phrase, term, definition or description preceding those words;
2.5. a reference to ‘writing’ or ‘written’ includes any method of reproducing words in a legible and non-transitory form (including email);
2.6. a reference to legislation is a reference to that legislation as amended, extended, re-enacted or consolidated from time to time and a reference to legislation includes all subordinate legislation made from time to time under that legislation; and
2.7. a reference to any English action, remedy, method of judicial proceeding, court, official, legal document, legal status, legal doctrine, legal concept or thing shall, in respect of any jurisdiction other than England, be deemed to include a reference to that which most nearly approximates to the English equivalent in that jurisdiction.
Schedule 2 – Cloud Services
For the purposes of this Schedule “Cloud Services” means any cloud service directly or indirectly supplied by Object Matrix and used remotely by the Customer. For the avoidance of doubt, where software is installed by the Customer (including but not limited to software used to access Cloud Services) the provisions relating to Software set out in Schedule 4 (Software) shall apply.
1. Definitions
In this Schedule, the following definitions shall apply:
| Applications | means the software or applications used by or on behalf of Object Matrix to provide the Cloud Services; |
| Customer Systems | means all software and systems used by or on behalf of the Customer, the Customer’s Affiliates, any of its or their direct or indirect sub-contractors, or any User in connection with the provision or receipt any of the Services or that the Services otherwise, link, inter-operate or interface with or utilise (in each case whether directly or indirectly); |
| Open Source Software | means any software subject to a version of the General Public Licence, together with any other ‘open source’ software falling within the Open Source Definition issued by the Open Source Initiative (www.opensource.org/docs/osd) at the date of our Agreement and any ‘free software’ as defined by the Free Software Foundation (www.gnu.org/philosophy/free-sw.html) at the date of our Agreement; |
| Permitted Downtime | means: a) scheduled maintenance which Object Matrix shall perform); b) emergency maintenance; ordowntime caused in whole or part by Force Majeure. |
| Service Hours | means 24 hours a day, seven days a week excluding Permitted Downtime; |
| Service Level Agreement | means the service level agreement in respect of the Cloud Services available at www.object-matrix.com/legals/sla as updated from time to time. |
2. Rights of use
2.1.Upon Order Acceptance and subject to the terms of our Agreement, Object Matrix grants the Customer a non-exclusive, non-transferable, personal right to:
(i) use each Subscribed Service during Service Hours; and
(ii) copy and use the Documentation as strictly necessary for its use by Users of the Cloud Services,
within the relevant Subscribed Territory during the Subscribed Service Period for the Permitted Purpose.
2.2. The Customer acknowledges that access to the Cloud Services may not be available upon Order Acceptance and that access to the Services shall be governed by:
(i) an implementation plan set out in the Service Specific Terms; and
(ii) the Service Level Agreement,
and that use of the Cloud Services is at all times subject to the Customer’s compliance with our Agreement and the requirements identified in our Agreement (including all minimum system requirements).
3. Users of Cloud services
3.1. The Customer shall (and shall ensure all Authorised Affiliates and Users shall) at all times comply with the Acceptable Use Policy and all other provisions of our Agreement.
3.2. The Customer shall ensure that Users are, at all times whilst they have access to the Cloud Services, the employees or contractors of the Customer or the Authorised Affiliates.
3.3. The Customer shall:
(i) be liable for the acts and omissions of its Users and the Authorised Affiliates as if they were its own;
(ii) only provide Users with access to the Services via the access method provided by Object Matrix; and
(iii) procure that each User (and each Authorised Affiliate) is aware of, and complies with, the obligations and restrictions imposed on the Customer under our Agreement, including all obligations and restrictions relating to Object Matrix’s Confidential Information.
3.4. The Customer warrants and represents that it, and all Users and all others acting on its or their behalf (including systems administrators) shall, keep confidential and not share with any third party (or with other individuals except those with administration rights at the Customer and its Authorised Affiliate’s organisation as necessary for use of the Service) their password or access details for any Subscribed Service.
3.5. If any password has been provided to an individual that is not authorised to use or access the Cloud Services by the Customer, the Customer shall, without delay, disable any such passwords and notify Object Matrix immediately.
3.6. The Customer shall comply (and shall ensure all Authorised Affiliates and Users comply) with all applicable laws, rules, and regulations governing export that apply to the Services, the Customer Data and the Documentation (or any part), and shall not export or re-export, directly or indirectly, separately or as a part of a system, the Services, the Customer Data or the Documentation (or any part) to, or access or use the Services, the Customer Data or the Documentation (or any part) in, any country or territory for which an export licence or other approval is required under the laws of the United Kingdom, the United States, the European Union or any of its member states, without first obtaining such licence or other approval. Without prejudice to Object Matrix’s obligations under the Data Protection Addendum, the Customer shall be solely responsible for ensuring its access, importation and use of the Services, the Customer Data and Documentation in or into any part of the Subscribed Territory or elsewhere complies with all export and other laws.
3.7. The Customer acknowledges that Object Matrix may monitor its Users access and use of the Cloud Services for its own internal purposes, such as product development and systems analytics. In the event that Object Matrix identifies that a User has breached the terms of this Agreement, Object Matrix may immediately suspend that Users’ access without prior notification to the Customer.
3.8. Paragraphs 3.4 to 3.6 (inclusive) shall survive termination or expiry of our Agreement.
4. Cloud services warranties
4.1. Subject to the remainder of this paragraph 4, Object Matrix warrants that:
(i) each Subscribed Service shall operate materially in accordance with its Description when used in accordance with our Agreement under normal use and normal circumstances during the relevant Subscribed Service Period; and
(ii) it will provide each of the Services with reasonable care and skill.
4.2. The Customer acknowledges that paragraph 4.1 does not apply to Free or Trial Services or to Support Services provided in connection with the same. Without prejudice to Object Matrix’s obligations under our Agreement in respect of Protected Data, Free or Trial Services and Support Services provided in connection with the same are provided ‘as is’ and without warranty to the maximum extent permitted by law.
4.3. The Services may be subject to delays, interruptions, errors or other problems resulting from use of the internet or public electronic communications networks used by the parties or third parties. The Customer acknowledges that such risks are inherent in cloud services and that Object Matrix shall have no liability for any such delays, interruptions, errors or other problems.
4.4. If there is a breach of any warranty in paragraph 4.1 Object Matrix shall at its option:
(i) use reasonable endeavours to repair or replace the impacted Services within a reasonable time; or
(ii) (whether or not it has first attempted to repair or replace the impacted Service) refund the Fees for the impacted Services which were otherwise payable for the period during which Object Matrix was in breach of any such warranty.
To the maximum extent permitted by law, this paragraph 0 sets out the Customer’s sole and exclusive remedy (however arising, whether in contract, negligence or otherwise) for any breach of any of the warranties in paragraph 4.1.
4.5. The warranties in paragraph 4.1 are subject to the limitations set out in clause 8 of these Terms and shall not apply to the extent that any error in the Services arises as a result of:
(i) incorrect operation or use of the Services by the Customer, any Authorised Affiliate or any User (including any failure to follow the Documentation or failure to meet minimum specifications);
(ii) use of any of the Services other than for the purposes for which it is intended;
(iii) use of any Services with other software or services or on equipment with which it is incompatible (unless Object Matrix recommended or required the use of that other software or service or equipment in the User Manual or Description);
(iv) any act by any third party (including hacking or the introduction of any virus or malicious code);
(v) any modification of Services (other than that undertaken by Object Matrix or at its direction); or
(vi) any breach of our Agreement by the Customer (or by any Authorised Affiliate or User).
4.6. Object Matrix may make Non-Object Matrix Materials available for the Customer’s use in connection with the Services. The Customer agrees that:
(i) Object Matrix has no responsibility for the use or consequences of use of any Non-Object Matrix Materials;
(ii) the Customer’s use of any Non-Object Matrix Materials shall be governed by the applicable terms between the Customer and the owner or licensor of the relevant Non-Object Matrix Materials;
(iii) the Customer is solely responsible for any Non-Object Matrix Materials used in connection with the Services and for compliance with all applicable third party terms which may govern the use of such Non-Object Matrix Materials; and
(iv) the continued availability, compatibility with the Services and performance of the Non-Object Matrix Materials is outside the control of Object Matrix and Object Matrix has no responsibility for any unavailability of or degradation in the Services to the extent resulting from the availability, incompatibility or performance of any of the Non-Object Matrix Materials;
4.7. The Customer acknowledges that no liability or obligation is accepted by Object Matrix (howsoever arising whether under contract, tort, in negligence or otherwise):
(i) that the Cloud Services shall meet the Customer’s individual needs, whether or not such needs have been communicated to Object Matrix;
(ii) that the operation of the Cloud Services shall not be subject to minor errors or defects; or
(iii) that the Cloud Services shall be compatible with any other software or service or with any hardware or equipment except to the extent expressly referred to as compatible in the Description.
4.8. Other than as set out in this paragraph 4, and subject to clause 8.7, all warranties, conditions, terms, undertakings or obligations whether express or implied and including any implied terms relating to quality, fitness for any particular purpose or ability to achieve a particular result are excluded to the fullest extent allowed by applicable law.
4.9. The Services may be subject to delays, interruptions, errors or other problems resulting from use of the internet or public electronic communications networks used by the parties or third parties. The Customer acknowledges that such risks are inherent in cloud services and that Object Matrix shall have no liability for any such delays, interruptions, errors or other problems.
5. Intellectual property
5.1. All Intellectual Property Rights in and to the Cloud Services (including in all Applications, Documentation and all Object Matrix Provided Materials) belong to and shall remain vested in Object Matrix or the relevant third party owner. To the extent that the Customer, any of its Affiliates or any person acting on its or their behalf acquires any Intellectual Property Rights in the Applications, Documentation, Object Matrix Provided Materials or any other part of the Services, the Customer shall assign or procure the assignment of such Intellectual Property Rights with full title guarantee (including by way of present assignment of future Intellectual Property Rights) to Object Matrix or such third party as Object Matrix may elect. The Customer shall execute all such documents and do such things as Object Matrix may consider necessary to give effect to this paragraph 5.1.
5.2. Except as expressly stated in the Service Specific Terms or Quote, Object Matrix has no obligation to deliver any copies of any software to the Customer in connection with the Cloud Services.
5.3. The Customer and its Users may be able to store or transmit Customer Data using one or more Subscribed Service and the Cloud Services may interact with Customer Systems. The Customer hereby grants a royalty-free, non-transferable, non-exclusive licence for Object Matrix (and each of its direct and indirect sub-contractors) to use, copy and other otherwise utilise the Customer Data and Customer Systems to the extent necessary to perform or provide the Services or to exercise or perform Object Matrix’s rights, remedies and obligations under our Agreement.
5.4. To the extent Non-Object Matrix Materials are made available to, or used by or on behalf of the Customer, any Authorised Affiliate or any User in connection with the use or provision of any Subscribed Service, such use of Non-Object Matrix Materials (including all licence terms) shall be exclusively governed by applicable third party terms notified or made available by Object Matrix or the third party and not by our Agreement. Object Matrix grants no Intellectual Property Rights or other rights in connection with any Non-Object Matrix Materials.
5.5. Object Matrix may use any feedback and suggestions for improvement relating to the Services provided by the Customer, the Authorised Affiliates or any User without charge or limitation (Feedback). The Customer hereby assigns (or shall procure the assignment of) all Intellectual Property Rights in the Feedback with full title guarantee (including by way of present assignment of future Intellectual Property Rights) to Object Matrix at the time such Feedback is first provided to Object Matrix.
5.6. The Customer hereby waives (and shall ensure all relevant third parties have waived) all rights to be identified as the author of any work, to object to derogatory treatment of that work and all other moral rights in the Intellectual Property Rights assigned to Object Matrix under our Agreement.
5.7. Except for the rights expressly granted in our Agreement, the Customer, any User, any Customer Affiliate and their direct and indirect sub-contractors, shall not acquire in any way any title, rights of ownership, or Intellectual Property Rights of whatever nature in the Services (or any part including the Applications or Documentation) and no Intellectual Property Rights of either party are transferred or licensed as a result of our Agreement.
5.8. This paragraph 5 shall survive the termination or expiry of our Agreement.
6. Defence against infringement claims
6.1. Subject to paragraphs 6.2 and 6.5, Object Matrix shall:
(i) defend at its own expense any claim brought against the Customer by any third party alleging that the Customer’s use of the Services infringes any copyright, database right or registered trade mark, registered design right or registered patent in the United Kingdom (an IP Claim); and
(ii) pay, subject to paragraph 6.3, all costs and damages awarded or agreed in settlement or final judgment of an IP Claim.
6.2. The provisions of paragraph 6.1 shall not apply unless the Customer:
(i) promptly (and in any event within 5 Business Days) notifies Object Matrix upon becoming aware of any actual or threatened IP Claim and provides full written particulars;
(ii) makes no comment or admission and takes no action that may adversely affect Object Matrix’s ability to defend or settle the IP Claim;
(iii) provides all assistance reasonably required by Object Matrix subject to Object Matrix paying the Customer’s reasonable costs; and
(iv) gives Object Matrix sole authority to defend or settle the IP Claim as Object Matrix considers appropriate.
6.3. The provisions of paragraph 8 shall apply to any payment of costs and damages awarded or agreed in settlement or final judgment of an IP Claim under paragraph 6.1.
6.4. In the event of any IP Claim Object Matrix may elect to terminate our Agreement immediately by written notice and promptly refund to the Customer on a pro-rata basis for any unused proportion of Fees paid in advance. This paragraph 6.4 is without prejudice to the Customer’s rights and remedies under paragraph 6.1.
6.5. Object Matrix shall have no liability or obligation under this paragraph 6 in respect of (and shall not be obliged to defend) any IP Claim which arises in whole or in part from:
(i) any modification of the Services (or any part) without Object Matrix’s express written approval;
(ii) any Non-Object Matrix Materials;
(iii) any Customer Data;
(iv) any Free or Trial Services (or any Support Services provided in connection with them);
(v) any Open Source Software;
(vi) any breach of our Agreement by the Customer;
(vii) installation or use of the Services (or any part) otherwise than in accordance with our Agreement and the User Manual; or
(viii) installation or use of the Services (or any part) in combination with any software, hardware or data that has not been supplied or expressly authorised by Object Matrix.
6.6. Subject to clause 8.7, the provisions of this paragraph 6 set out the Customer’s sole and exclusive remedy (howsoever arising, including in contract, tort, negligence or otherwise) for any IP Claim.
7. Customer systems and customer data
7.1. Customer Data shall at all times remain the property of the Customer or its licensors.
7.2. Except to the extent Object Matrix has direct obligations under data protection laws, the Customer acknowledges that Object Matrix has no control over any Customer Data hosted as part of the provision of the Services and may not actively monitor or have access to the content of the Customer Data. The Customer shall ensure (and is exclusively responsible for) the accuracy, quality, integrity and legality of the Customer Data and that its use (including use in connection with the Service) complies with all applicable laws and Intellectual Property Rights.
7.3. If Object Matrix becomes aware of any allegation that any Customer Data may not comply with the Acceptable Use Policy or any other part of our Agreement Object Matrix shall have the right to permanently delete or otherwise remove or suspend access to any Customer Data which is suspected of being in breach of any of the foregoing from the Services and/or disclose Customer Data to law enforcement authorities (in each case without the need to consult the Customer). Where reasonably practicable and lawful Object Matrix shall notify the Customer before taking such action.
7.4. Except as otherwise expressly agreed in our Agreement, Object Matrix shall not be obliged to provide the Customer with any assistance extracting, transferring or recovering any data whether during or after the Service Period. The Customer acknowledges and agrees that it is responsible for maintaining safe backups and copies of any Customer Data, including as necessary to ensure the continuation of the Customer’s and Authorised Affiliates’ businesses. The Customer shall, without limitation, ensure that it backs up (or procures the back up of) all Customer Data regularly (in accordance with its, its Authorised Affiliates and its User’s needs) and extracts it from each Subscribed Service prior to the termination or expiry of our Agreement or the cessation or suspension of any of the Services.
7.5. Object Matrix routinely undertakes regular backups of the Cloud Services (which may include Customer Data) for its own business continuity purposes. The Customer acknowledges that such steps do not in any way make Object Matrix responsible for ensuring the Customer Data does not become inaccessible, damaged or corrupted. To the maximum extent permitted by applicable law, Object Matrix shall not be responsible (under any legal theory, including in negligence) for any loss of availability of, or corruption or damage to, any Customer Data.
7.6. Unless otherwise set out in the Quote, the Service Specific Terms or subsequently agreed by the parties in writing, the Customer hereby instructs that Object Matrix shall within [60] days of the earlier of the end of the provision of the Services (or any part) relating to the processing of the Customer Data securely dispose of such Customer Data processed in relation to the Services (or any part) which have ended (and all existing copies of it) except to the extent that any Applicable Laws (as defined in the Data Protection Addendum) requires Object Matrix to store such Customer Data. Object Matrix shall have no liability (howsoever arising, including in negligence) for any deletion or destruction of any such Customer Data undertaken in accordance with our Agreement.
7.7. Object Matrix may, without limitation to the generality of this paragraph 7.7, establish new limits on the Cloud Services (or any part), including limiting the volume of data which may be used, stored or transmitted in connection with the Subscribed Service, remove or restrict application programming interfaces or make alterations to data retention periods, provided such changes are introduced by Update to the relevant impacted contractual documents. Object Matrix will comply with its related obligations in the Data Protection Addendum.
8. Confidentiality and security of customer data
8.1. Object Matrix shall maintain the confidentiality of the Customer Data and shall not without the prior written consent of the Customer or in accordance with our Agreement, disclose or copy the Customer Data other than as necessary for the performance of the Services or its express rights and obligations under our Agreement.
8.2. Object Matrix:
(i) undertakes to disclose the Customer Data only to those of its officers, employees, agents, contractors and direct and indirect sub-contractors to whom, and to the extent to which, such disclosure is necessary for the purposes contemplated under our Agreement or as otherwise reasonably necessary for the provision or receipt of the Services, and
(ii) shall be responsible to the Customer for any acts or omissions of any of the persons referred to in paragraph 8.2(i) in respect of the confidentiality and security of the Customer Data as if they were Object Matrix’s own.
8.3. The provisions of this paragraph 8 shall not apply to information which:
(i) is or comes into the public domain through no fault of Object Matrix, its officers, employees, agents or contractors;
(ii) is lawfully received by Object Matrix from a third party free of any obligation of confidence at the time of its disclosure;
(iii) is independently developed by Object Matrix (or any of its Affiliates or any person acting on its or their behalf), without access to or use of such Confidential Information; or
(iv) is required by law, by court or governmental or regulatory order to be disclosed,
provided that paragraphs (i) to (iii) (inclusive) shall not apply to Protected Data.
8.4. This clause 8 shall survive the termination or expiry of our Agreement for a period of [10] years.
8.5. To the extent any Customer Data is Protected Data, Object Matrix shall ensure that such Customer Data may be disclosed or used only to the extent such disclosure or use does not conflict with any of Object Matrix’s obligations under the Data Protection Addendum. Paragraphs 8.1 to 8.4 (inclusive) are subject to this paragraph 8.5.
9. Monitoring compliance
9.1. During the Service Period and for 7 years thereafter the Customer shall maintain full and accurate records relating to the Customer’s and Authorised Affiliates’ use of the Services under our Agreement.
9.2. The Customer shall allow and procure for Object Matrix (and any representatives of Object Matrix) access to its premises and the premises of Authorised Affiliates to:
(i) inspect use of the Services; and
(ii) audit (and take copies of) the relevant records of the Customer and the Authorised Affiliates,
in each case to the extent necessary to verify that the Customer is in compliance with its obligations under our Agreement.
9.3. Unless otherwise agreed in writing, the inspection and audit referred to in paragraph 9.2 shall be undertaken:
(i) during the Customer’s normal business hours on Business Days;
(ii) subject to the provision by Object Matrix of a minimum of 5 Business Days’ notice; and
(iii) not more than twice in any calendar year.
9.4. At Object Matrix’s request from time to time the Customer shall promptly (and in any event within 2 Business Days of such request) provide Object Matrix with copies of the records referred to in paragraph 9.1.
9.5. Object Matrix may monitor, collect, store and use information on the use and performance of the Services (including Customer Data) to detect threats or errors to the Services and/or Object Matrix’s operations and for the purposes of the further development and improvement of Object Matrix’s services, provided that such activities at all times comply with the Privacy Policy and Data Protection Addendum.
9.6. This paragraph 9 shall survive termination or expiry of our Agreement.
10. Suspension
10.1. Object Matrix may suspend access to the Cloud Services to all or some of the Users if:
(i) Object Matrix suspects that there has been any misuse of the Services or breach of our Agreement; or
(ii) the Customer fails to pay any sums due to Object Matrix by the due date for payment.
10.2. Where the reason for the suspension is suspected misuse of the Services or breach of our Agreement, without prejudice to its rights under clause 9, Object Matrix will take steps to investigate the issue and may restore or continue to suspend access at its discretion.
10.3. Fees shall remain payable during any period of suspension notwithstanding that the Customer, Authorised Affiliates or some or all of the Users may not have access to the Services.
11. Renewals
11.1. Unless the Quote specifies otherwise and subject to clause 11.2, on expiry of the Subscribed Service Period the Subscribed Service Period shall continue and automatically renew for a further period of twelve months (the “Renewal Date”) and thereafter renew for a further period of twelve months on each anniversary of the first Renewal Date (each such anniversary being a Renewal Date). This clause 11.1 shall not apply in respect of Free or Trial Services (which shall not renew unless otherwise expressly stated in the Quote or otherwise agreed with Object Matrix in writing).
11.2. If either party wishes for the Subscribed Service Period to expire on the next Renewal Date, it may serve written notice provided to terminate at least 90 days prior to that Renewal Date. If notice is not served within the timeframes set out in this clause 11.2, the Subscribed Service shall renew at the next Renewal Date in accordance with clause 11.1.
12. Changes to services and terms
12.1. Object Matrix may at its absolute discretion change or discontinue any of its Services from time to time. Where Object Matrix releases updated versions of the documents referred to in clause 1.2 or other documents referred to in any part of our Agreement (excluding in each case the Quote) it shall notify the Customer of such update by e-mail (together with a copy of the update or a link to a copy of the update) or by any other means which Object Matrix elects (an “Update Notification”).
12.2. The Customer may, in Object Matrix’s discretion, be given the option to upgrade their account in order for certain changes to take effect. The Customer acknowledges that where they choose not to upgrade their account, the Customer will not receive the benefit of such changes and continuing on an outdated version may impact the Customer’s ability to use the Cloud Services.
12.3. The document(s) subject to such Update Notification shall replace the preceding version of the same document(s) for the purposes of our Agreement from the date 30 Business Days’ after the Update Notification related to the revised document(s) (the “Update”) (or at such later date as Object Matrix may specify).
12.4. In the event that the Customer reasonably believes that any Update materially detriments the Customer or its receipt of the affected Services, the Customer may by providing at least 10 Business Days written notice elect to terminate our Agreement in respect of all impacted Services. The termination notice must set out the impact of the changes to the Customer. In the event of such termination the Customer shall receive a refund of any pre-paid Fees in respect of such terminated Services.
12.5. The Customer acknowledges that Object Matrix shall be entitled to modify the features and functionality of the Software or Services supplied as deemed reasonably necessary by Object Matrix to continue functionality of any Software or Services supplied. Object Matrix shall use reasonable endeavours to ensure that any such modification does not materially adversely affect the Customer’s use of the relevant Services or Software.
Schedule 3 – Hardware
1. Supply of Hardware
1.1. For the purposes of this Schedule “Hardware” means any equipment to be supplied by Object Matrix to the Customer as specified in the Quote and all related user Documentation and technical information provided by Object Matrix.
1.2. Object Matrix shall supply the Hardware:
(i) on the terms of this Agreement; and
(ii) free from any material defects at the point of shipment.
2. Title and Insurance
2.1. Title in the Hardware remains with Object Matrix until the Fees in respect of the Hardware have been paid in full by the Customer.
2.2. Risk of damage or loss in respect of the Hardware shall pass on delivery to the Customer and the Customer shall be responsible for maintaining adequate insurance in respect of the Hardware to cover all possible risks to the Hardware whilst in its possession or control.
3. Integration
3.1. Object Matrix shall use reasonable endeavours to deliver the Hardware by the applicable delivery dates specified in the Quote (subject to the Customer’s performance of its obligations specified in this Agreement).
3.2. To enable the installation of the Hardware at the Customer’s premises (if applicable and specified in the Quote) the Customer shall provide all network connectivity, cabling and other necessary equipment, including the equipment required to interface the Hardware within the Customer Systems. For the avoidance of doubt, the Customer is responsible for providing cabling required to connect the server to the Customer’s systems, as applicable.
3.3. To the extent that the Customer sources hardware from a third party to form part of the Customer Systems (as defined in Schedule 2) and with which the Hardware shall integrate, the Customer shall ensure that such hardware meets the minimum hardware requirements specified Object Matrix in the Documentation or Service Specific Terms.
4. Warranties
4.1. Object Matrix warrants that:
(i) upon delivery of the hardware, and for a period of 90 days thereafter, the hardware shall materially comply with the specification set out in the Quote and any Documentation; and
(ii) it has all necessary licenses and consents to sell the hardware to the Customer in accordance with this Agreement.
4.2. Save as set out expressly in this Agreement, all warranties, conditions and other terms, including the terms implied by sections 13 to 15 of the Sale of Goods Act 1979, are to the fullest extent permitted by law excluded from this Agreement.
Schedule 4 – Software
1. Definitions
1.1. For the purposes of this Schedule 4:
(i) “Software” means the proprietary software of Object Matrix identified in the Quote or Service Specific Terms including any Updates or Upgrades provided by Object Matrix under this Agreement;
(ii) “Warranty Period” means the period of 90 days from the date on which the Software is first made available for download by the Customer or delivered by Object Matrix;
2. Supply of the Software
2.1. Object Matrix shall:
(i) deliver the Software in accordance with the Quote; and
(ii) ensure that the Software is free from material defect at the point of delivery of the Software to Customer.
3. Customer’s use of the Software
3.1. The Customer shall ensure that:
(i) only the Users have access to the Software where applicable;
(ii) it complies with the usage and restrictions in respect of the Software set out in the Quote and any Documentation.
4. Intellectual Property
4.1. Object Matrix grants to the Customer for the term specified in the Quote (“Licence Term”) a royalty-free, non-exclusive, non-transferable licence to use and sub-license the Software, operating manuals, user instructions, technical instructions and all other Documentation to enable the Customer to use the Software for the Permitted Purpose (the “Licence”).
5. Warranties
5.1. Object Matrix warrants that the Software shall operate materially in accordance with any Documentation supplied with the Software when used in accordance with this Agreement for the duration of the Warranty Period.
5.2. If the Customer receives any Update of the Software under this Agreement during the Warranty Period, such Update will be covered under the warranty at paragraph 5.1 for the remainder of that original Warranty Period, but that Warranty Period will not be restarted or extended and no new Warranty Period shall apply as a result of any Update to the Software.
5.3. If there is a breach of paragraph 5.1, provided the Customer notifies Object Matrix in writing within the Warranty Period and provides sufficient information to enable Object Matrix to reproduce any errors, the Supplier shall, at its option:
(i) use reasonable endeavours to correct the errors in the Software within a reasonable time; or
(ii) terminate use of the Software and refund any unused prepaid Licence Fees as at the date of termination.
5.4. The warranty in paragraph 5.1 is subject to the Customer complying with its obligations under, and using the Software in accordance with, this Agreement and is also subject to the limitations set out in clause 8. In addition, the warranty shall not apply to the extent that any error in the Software arises as a result of:
(i) incorrect operation or use of the Software (including any failure to follow the Documentation);
(ii) installation or use of the Software other than for the purposes for which it is intended;
(iii) modification or alteration of the Software without the written consent of Object Matrix;
(iv) installation or use of the Software with other software or on equipment with which it is incompatible (unless Object Matrix recommended or required the use of that other software or equipment);
(v) attempted repair, rectification or maintenance by any person other than Object Matrix or a third party authorised by Object Matrix;
(vi) failure to notify the Supplier of any error within a reasonable period of time of it first occurring; or
(vii) failure to install any Update or Upgrade recommended by the Object Matrix.
5.5. The Customer acknowledges that Object Matrix does not give any warranty or representation and does not accept any liability (howsoever arising whether under contract, tort, in negligence or otherwise) in relation to:
(i) any third party software supplied, which shall be subject to the third party licence terms;
(ii) the Software meeting the Customer’s individual needs or business requirements, whether or not such needs or requirements have been communicated to Object Matrix;
(iii) the Software operating in a manner which is uninterrupted or free from minor errors or defects; or
(iv) the Software being compatible with any software or with any particular hardware or equipment other than the Hardware supplied by Object Matrix or unless expressly stated in the Service Specific Terms.
5.6. Subject to clause 8, the provisions of paragraphs 5.3 set out the Customer’s sole and exclusive remedy (howsoever arising, whether in contract, tort, negligence or otherwise) for any breach of paragraph 5.1 or for any other error or defect in, defective performance or inability to use the Software or any part of it.
5.7. Other than as set out in this paragraph 5, and subject to clause to clause 8, all warranties, conditions, terms, undertakings or obligations whether express or implied and including any implied terms relating to quality, fitness for any particular purpose, reasonable skill and care or ability to achieve a particular result are excluded to the fullest extent allowed by applicable law.
5.8. The warranties given in this paragraph 5 are given to the Customer only and may not be assigned or transferred in whole or in part by the Customer.
