Subscription Terms
Terms and Conditions
Open ECX offers the Open ECX Platform as a cloud-based service on a subscription basis.
These terms apply to the Open ECX Platform and any Services which are provided in respect of the Open ECX Platform.
To subscribe to the Open ECX Platform or order any Services a completed Order Form must be signed and returned to Open ECX by the Customer. The submission of an Order Form constitutes an offer by the Customer to subscribe to the Open ECX Platform or procure the Services (as applicable) on these terms or any terms that replace these terms pursuant to clause 15.6.
The acceptance of an Order by Open ECX forms a legally binding Contract between the Customer and Open ECX. It is therefore essential that the Customer reads and understands the content of the Order Form and these terms before submitting an Order Form, and by submitted an Order Form the Customer confirms that it has done so and that it agrees to be bound by these terms and the Order.
- DEFINITIONS AND INTERPRETATION
1.1 In these terms, including the introduction, and in any Order Form, the following definitions shall apply unless the context otherwise requires:
Acceptable Use Policy
The acceptable use policy for the Open ECX Platform, as revised from time to time, accessible online at the location specified in the Order Form;
Annual Recurring Charge
The charge payable in consideration of the Subscription as set out in the relevant Order Form or revised from time to time in accordance with a Contract;
Authorised User
Any employee of the Customer;
Charges
Any charges payable by the Customer in respect of the Subscription or the Services, as set out in an Order Form and as revised from time to time in accordance with a Contract, including the Annual Recurring Charge, the One-Off Charges and any charges for Services;
Contract
A contract between Open ECX and the Customer for a Subscription or Services, comprising these terms and an Order Form signed by or on behalf of both parties;
Customer
The Customer whose details are set out in an Order Form;
Customer Affiliate
The Customer’s holding company or ultimate holding company, any subsidiary company of the Customer and any subsidiary company of its holding company or ultimate holding company ventures from time to time, “holding company” and “subsidiary” having the meanings given to them in section 1159 of the Companies Act 2006;
Customer Branding
The Customer’s name, logo and any other trade mark or branding of the Customer;
Customer Content
Any content that the Customer (including any Authorised User acting on its behalf) may upload to the Open ECX Platform and all information derived from such content, except for anonymised data derived from such content;
Customer Handbook
Open ECX’s customer handbook as published from time to time, a copy of which is available on request;
Delivery Engagement
All aspects of project activity pertaining to the delivery of a production-ready solution to the Client;
Delivery Team
The team consisting of representatives of either or both of Open ECX or the Client which is responsible for successful delivery of the service;
Documentation
The user documentation which describes the Open ECX Platform and provides guidance as to the proper use of the same;
Go-Live Date
The date from which the first Production transaction(s) is/are processed by the Open ECX Platform;
Initial Specification
The agreed specification setting out the basic functionality and features of the Open ECX Platform required by the Customer, as set out in the relevant Statement of Work;
Initial Term
The initial term set out in the relevant Order Form;
Intellectual Property Rights
Any and all intellectual property rights including patents, trade marks, design rights, copyright, rights in databases, domain names, topography rights, know-how, look and feel, rights in confidential information and all similar rights (whether or not registered or capable of registration and whether subsisting in the United Kingdom or any other part of the world) together with the right to apply for registration of and/or register such rights and any and all goodwill relating or attached thereto and all extensions and renewals thereof;
One-Off Charges
The charges which are payable only once as set out in the Order Form;
Open ECX
Open ECX Limited, a company incorporated and registered in England and Wales with company number 08036689, and whose registered office is at Blackfriars House, Parsonage, Manchester, M3 2JA;
Open ECX Platform
The cloud-based subscription service offered by Open ECX, as more fully described in the Documentation;
Order
An order placed by a Customer for a Subscription and/or Services pursuant to clause 2.1;
Order Date
The order date set out in the relevant Order Form;
Order Form
An order form requesting a Subscription or Service from Open ECX, either in the standard format provided by Open ECX or in any such other format as Open ECX may accept;
Production
Live processing of data into the Customer’s live environment;
Services
All services provided by Open ECX to the Customer relating to the Open ECX Platform including the Support Services and any other services such as consultancy (but excluding provision of the Open ECX Platform itself);
Statement of Work
A statement of work describing Services to be provided by Open ECX, as attached to the relevant Order Form;
Subscription
A subscription entitling the Customer to access and use the Open ECX Platform (or part of it) in accordance with a Contract (subject to payment of the Annual Recurring Charge); and
Support Services
The support services provided as part of a Subscription as more fully described in clause 3.2 and the Customer Handbook.
1.2 Headings are included for convenience only and shall not affect the construction or interpretation of a Contract.
1.3 Any reference to a clause shall (unless expressly provided otherwise) be a reference to a clause of these terms.
1.4 Any reference to the singular shall include the plural and vice versa and any reference to one gender shall include all genders including the neuter gender.
1.5 Any reference to a person shall, unless the context otherwise requires, include individuals, partnerships, companies and all other legal persons.
1.6 The words include, includes, including and included and like words and expressions will be construed without limitation unless inconsistent with the context.
1.7 Any reference to a notice or other communication being in writing shall be satisfied by that notice or communication being sent by email, provided this is permitted by and done in accordance with clause 14 where applicable. A reference to a signature shall include an electronic signature, such as a scanned or typed signature.
1.8 Any reference in a Contract to law or to any statute, statutory instrument, directive, regulation, order or other enactment shall mean the same as shall be amended, enacted, replaced, extended, modified, consolidated or repealed from time to time.
1.9 Working days shall be all days other than Saturdays, Sundays and public holidays in England and working hours shall be 8:30am to 5:30pm UK time on working days.
2. BASIS OF AGREEMENT
2.1 A prospective Customer wishing to order a Subscription to the Open ECX Platform shall submit a completed Order Form to Open ECX.
2.2 To supplement the Open ECX Platform, a Customer (or any of the Customer’s Affiliates) may also order additional Services. These can be ordered at the same time as the Subscription for the Open ECX Platform or added subsequently. Where additional Services are offered, these may be more fully described in a Statement of Work attached to the Order Form.
2.3 Should Open ECX be prepared to accept an Order it shall confirm its acceptance of the Order by signing the relevant Order and upon acceptance the Contract shall become legally binding on both parties and the agreement shall be irrevocable except on its terms.
2.4 Each Order shall, if accepted, form a separate Contract between Open ECX and the Customer (in the case of an Order by a Customer Affiliate for additional Services, the Contract shall be between Open ECX and the relevant Customer Affiliate, and all references to the “Customer” will be read as references to the relevant Customer Affiliate for the purposes of that Order). Unless otherwise expressly stated in the Order Form, each Order is for the benefit only of the entity placing that Order.
2.5 An Order Form may contain additional provisions which are specific to that Order. To the extent of any conflict between such provisions and these terms, the provisions set out in these terms shall apply, save where a term set out in an Order Form is expressly stated to override these terms. For the avoidance of doubt however any provisions set out in an Order Form only affect that Contract and not any other Contracts that may be formed between the parties.
3. SUBSCRIPTION
3.1 A Subscription entitles the Customer to a non-exclusive right to access and use the relevant parts of the Open ECX Platform for its own business purposes in accordance with the relevant Contract and subject to any restrictions set out in the relevant Order Form.
3.2 The Subscription includes access to the Support Services and the Documentation at no additional charge. All support requests should be made by a nominated “support contact” of the Customer and will be dealt with in accordance with the provisions of the Customer Handbook.
3.3 The Open ECX Platform is deployed on a software as a service basis through the public cloud. A Subscription does not give the Customer any right to a copy of the underlying software to install on its own systems or servers.
3.4 Open ECX will provide the Customer with access credentials to access and use the Open ECX Platform. The Customer shall ensure that such access credentials are kept secure and only disclosed to such parties as require access to the Open ECX Platform, such as relevant employees and other Authorised Users. For the avoidance of doubt employees and other Authorised Users shall only have access to access credentials issued specifically for their use, and access credentials must not be shared between individuals and/or Authorised Users except where expressly permitted in writing by Open ECX.
3.5 In no circumstances shall the Customer allow or permit any party other than an Authorised User to access the Open ECX Platform using its Subscription. Authorised Users shall be permitted access only to the extent that they are using the Open ECX Platform for the Customer’s business purposes.
3.6 Open ECX may from time to time make changes to the Open ECX Platform, including to improve its functionality or usability, add new features, remove features it considers to be obsolete, fix errors, and improve its stability or address feedback received from customers.
3.7 Open ECX shall be entitled to suspend access to the Open ECX Platform (or any part thereof) without liability to the Customer immediately and without notice or to take such reasonable action as it may in its discretion think appropriate if it reasonably believes:
3.7.1 Not doing so would prejudice the security, integrity or operability of the Open ECX Platform (or any part thereof), cause harm to another customer or other third party or give rise to a claim against Open ECX;
3.7.2 the Customer or its Authorised Users have transmitted, uploaded or downloaded content which contravenes restrictions set out in the Acceptable Use Policy; or
3.7.3 Or such time as the Customer is otherwise in breach of a Contract.
Promptly following such suspension Open ECX shall notify the Customer of the suspension, the reason for the suspension and what steps the Customer can take so that the suspension can be brought to an end.
4. SYSTEM DELIVERY
4.1 In consideration for the payment of the applicable One-Off Charges, Open ECX agrees to configure the Open ECX Platform to conform to the Initial Specification.
4.2 Open ECX shall use reasonable commercial endeavours to commence and progress the delivery of the Open ECX Platform in a timely manner and in accordance with the timescales set out in the Statement of Work (but for the avoidance of doubt any such timescales are estimates only and are subject to change depending on the progress of the project).
4.3 If the Customer wishes to make any changes to the Initial Specification it must request such changes through the change control process set out in the Customer Handbook or Statement of Work (as applicable). No change will be effective unless and until accepted by Open ECX in accordance with the change control process.
4.4 Once Open ECX considers the delivery to be complete it shall carry out such tests as it considers appropriate on the Open ECX Platform. Where appropriate the Customer shall be invited to participate in such testing, and the Customer agrees that in such circumstances it shall provide all reasonable assistance to Open ECX.
4.5 Where in Open ECX’s reasonable opinion such testing indicates that the Open ECX Platform is compliant with the Initial Specification the Customer shall be granted access to the Open ECX Platform at that time in order that the Customer can commence its pilot project.
4.6 Where the testing indicates that the Open ECX Platform is not compliant with the Initial Specification, Open ECX shall revise the Open ECX Platform and carry out further testing in accordance with clause 4.4. Open ECX shall continue to follow the process set out in clauses 4.4 to 4.6 until the Open ECX Platform is compliant with the Initial Specification.
4.7 Any defects or amendments raised by the Customer after the Go-Live Date will be handled under the normal support process as described in the Customer Handbook.
5. OPEN ECX WARRANTIES
5.1 Open ECX warrants that:
5.1.1 The functionality of the Open ECX Platform will substantively conform to the Documentation and the Initial Specification;
it will use reasonable endeavours to ensure that the Open ECX Platform is available for the use of all Authorised Users during working hours in accordance with the Customer Handbook;
5.1.2 all Services will be provided with reasonable skill and care and in accordance with all applicable legislation from time to time in force; and
5.1.3 will be responsible for any of its employees who are involved in the provision the Services.
5.2 By the nature of the Open ECX Platform, Open ECX cannot warrant that it will be entirely error free. However, Open ECX shall use its reasonable endeavours to remedy any material error reported by the Customer as soon as reasonably and commercially practicable. In the event that the Customer does experience issues with the Open ECX Platform it shall utilise the Support Services in accordance with the relevant Contract.
5.3 In the unlikely event that the Customer is dissatisfied with the Services then it shall pursue the escalation process set out in the Customer Handbook.
5.4 Any timescales set out for the performance of the Services, save for any timescales provided in the Customer Handbook, are for indicative purposes only.
5.5 In the event that an individual become unavailable due to (for example) accident, illness, termination of employment or reallocation to another task, Open ECX shall use reasonable endeavours to provide a suitable replacement.
5.6 The provisions of this clause 5 set out the Customer’s sole and exclusive remedies for any non-compliance in the provision of the Open ECX Platform or Services.
6. CUSTOMER WARRANTIES
6.1 The Customer shall use the Open ECX Platform only in accordance with the relevant Contract (including the Acceptable Use Policy) and procure that all Authorised Users do the same.
6.2 The Customer shall be fully responsible for any acts or omissions of any Authorised Users or any other party accessing the Open ECX Platform using the Customer’s access credentials, as if such acts or omissions were the acts or omissions of the Customer. The Customer shall ensure that all Authorised Users are aware of the Acceptable Use Policy and all applicable terms in respect of use of the Open ECX Platform.
6.3 The Customer shall immediately notify Open ECX if it believes or suspects either that it may have breached the Contract or that its access credentials may have been compromised.
6.4 The Customer warrants that any and all information and documentation provided by it in relation to any Services is true, complete and accurate.
6.5 To enable Open ECX to provide the Services, the Customer agrees to provide on reasonable request any information or documentation relevant to the Services and the reasonable co-operation of its employees and consultants in respect of matters relating to the Services. Open ECX shall not be responsible for any delay caused as a result of the Customer’s failure to comply with this clause 6.5.
6.6 The Customer agrees that, unless requested otherwise, it shall only provide copies of documentation to Open ECX and shall maintain the originals, such that it shall suffer no loss if the documentation is lost or damaged. Where it is expressly requested to provide originals it shall make a copy prior to providing them such that if the documentation were lost or damaged the only loss would be the replacement cost of that documentation, which shall accordingly be Open ECX's sole liability in such circumstances.
7. INTELLECTUAL PROPERTY RIGHTS
7.1 All rights, title and interest (including Intellectual Property Rights) in the Open ECX Platform and in the Services shall (as between Open ECX and the Customer) belong to Open ECX, and nothing in a Contract shall operate to transfer any such rights to the Customer.
7.2 If, notwithstanding clause 7.1, the Customer it acquires any rights in the Open ECX Platform or in any of the Services, it hereby assigns such rights absolutely (by way of present assignment of future rights) to Open ECX. To the extent that this clause 7.2 does not operate to automatically assign such rights, or to the extent that Open ECX requests a confirmatory assignment of such rights, the Customer shall execute on demand all such documentation as the Customer may reasonably request to give effect to and document this assignment. Where applicable the Customer shall be entitled to use such parts of the Open ECX Platform or other Services in accordance with its Subscription.
7.3 The Customer shall retain all rights in the Customer Branding and Customer Content. The Customer grants Open ECX a non-exclusive royalty free licence to use such Customer Branding and Customer Content for the purposes of providing the Open ECX Platform and/or Services to the Customer and, in the case of the Customer Branding, for use in publicity material as permitted by clause 10.5 or otherwise by prior written agreement.
7.4 Open ECX will indemnify the Customer against any losses, damages, claims, costs and expenses suffered or incurred by or awarded against the Customer as a result of any claim (a Claim) that use of the Open ECX Platform in accordance with the relevant Contract, and/or receipt of any Services, infringes any third party Intellectual Property Rights subsisting the United Kingdom.
7.5 To obtain the benefit of the indemnity set out in clause 7.4:
7.5.1 The Customer must immediately notify Open ECX if it receives notice of any Claim or has reason to suspect that a Claim may be brought;
7.5.2 following such notice the Customer must allow Open ECX to take full conduct of such Claim, including any negotiations and including the right to settle the Claim on such terms as Open ECX sees fit and shall, at Open ECX’s reasonable expense, provide all such co-operation as Open ECX may request; and
7.5.3 the Customer must not make any admission, concession or other statement regarding the Claim to any party, other than to acknowledge receipt of documentation and to confirm (where applicable) that Open ECX has conduct of the Claim without Open ECX’s written consent.
7.6 The Customer shall not be entitled to rely on the indemnity set out at clause 7.4 to the extent that the Claim arose (in whole or in part) as a result of the Customer or any Authorised User using the Open ECX Platform, Documentation or Services (as applicable) (a) in a way other than permitted by a Contract, (b) in a manner that they knew or suspected may give rise to a Claim or (c) in a negligent manner.
7.7 Without prejudice to the indemnity set out at clause 7.4, where Open ECX becomes aware of any claim or potential claim that the Open ECX Platform or Documentation and/or receipt of any other Services infringes any Intellectual Property Rights of any third party, whether or not this constitutes or may constitute a Claim falling within the scope of clause 7.4, Open ECX may at its option:
7.7.1 suspend access to the Open ECX Platform (or the affected part), withdraw the Documentation (or the affected part) and/or suspend the Services (or the affected parts);
7.7.2 modify the Open ECX Platform, the Documentation and/or the Services to remedy the infringement,
obtain (at its own cost) the right for the Customer to continue using the Open ECX Platform, the Documentation and/or the Services; and/or
7.7.3 terminate the Customer’s Subscription or any other Contract.
7.8 Where the Open ECX Platform or any Services are suspended or terminated pursuant to clause 7.6 Open ECX shall make a pro rata refund to the Customer calculated by Open ECX (acting reasonably) based on the proportion of the Open ECX Platform or Services not received and the period over which it was not received.
7.9 The provisions of this clause 7 constitute the Customer’s sole and exclusive remedy for any loss, damage, cost or expense caused by a claim falling within clause 7.4 and/or 7.6.
8. CHARGES
8.1 The Customer shall pay the Charges to Open ECX as specified in the Order Form.
8.2 Open ECX shall invoice the Customer:
8.2.1 On the Order Date for any One-Off Charges and the first year of the Annual Recurring Charge;
8.2.2 on each anniversary of the Order Date for subsequent Annual Recurring Charges; and
8.2.3 in arrears on an interim basis for any other Charges such as additional onboards or overage.
8.3 Where and to the extent that Services are provided from any location other than Open ECX’s own premises, the Customer shall be responsible for all and any reasonable expenses incurred by Open ECX in providing the Services including travel, lodging, meals, and miscellaneous out of pocket expenses. Expenses may be invoiced at the same time as the Services or separately.
8.4 All invoices are payable within 30 days of the date of the invoice.
8.5 All Charges are exclusive of VAT which is chargeable in addition at the prevailing rate. VAT shall also be payable on expenses where applicable.
8.6 Charges for Services shall be invoiced at Open ECX’s day rates, as in effect from time to time. Details of these rates are available from Open ECX on request.
8.7 Open ECX shall not be required to activate a Subscription until the relevant One-Off Charges and Annual Recurring Charge have been paid.
8.8 Open ECX may suspend access to the Open ECX Platform or the provision of any of the Services without liability if any amount due to it from the Customer is not paid by the due date and may maintain such suspension until all outstanding sums due to Open ECX from the Customer have been paid. This does not affect the liability of the Customer to pay for the Subscription and the Services, during any period of suspension.
8.9 The Customer agrees to carefully check any invoice received and to raise any dispute regarding its content within 21 days of the invoice date, such notice to confirm the amount disputed and the reason(s) for the dispute. Invoices will be deemed to have been properly submitted where an invoice has not been disputed within 21 days of the invoice date.
8.10 Notwithstanding the fact that a dispute may have been raised in accordance with clause 8.9 the Customer shall pay to OpenECX any undisputed amount(s) as these undisputed amounts become due. The parties shall in good faith attempt to resolve the dispute as to the unpaid amount and, where it is agreed (or ordered by a court) that a further amount is payable, the Customer shall immediately pay this to Open ECX.
8.11 All amounts due under any Contract shall be paid by the Customer to Open ECX in full without any set-off, counterclaim, deduction or withholding.
9. TERMINATION
9.1 A Subscription shall commence on the Order Date and will run for the Initial Term, after which it will automatically renew annually for periods of 12 months each in duration (each a Secondary Term, and each Initial Term and each Secondary Term being a Subscription Period).
9.2 Either party may choose not to renew the Subscription by giving at least 90 days’ written notice prior to the end of the then current Subscription Period.
9.3 The provision of Services shall commence:
9.3.1 In the case of the Support Services, on the Go-Live Date; and
9.3.2 in any other case, as soon as reasonably practicable following acceptance of the relevant Order, save where otherwise agreed.
9.4 Either party may terminate any or all Contracts immediately on written notice if the other:
9.4.1 commits an irremediable material breach of any of the Contracts, persistently commits remediable material breaches following receipt of a warning in writing in respect of any such breaches or commits any remediable breach and fails to remedy it within 30 days of receipt of notice of the breach requiring remedy of the same; or
9.4.2 makes an arrangement with or enters into a compromise with its creditors, becomes the subject of a voluntary arrangement, receivership, administration, liquidation or winding up, applies to court for, or obtains, a moratorium under Part A1 of the Insolvency
9.4.3 Act 1986, is unable to pay its debts or otherwise becomes insolvent or suffers or is the subject of any distraint, execution, event of insolvency or event of bankruptcy or any other similar process or event, whether in the United Kingdom or elsewhere.
9.5 Open ECX shall also be entitled to terminate any or all Contracts immediately if:
9.5.1 fails to pay any amount due to Open ECX as it falls due (under any Contract), unless such failure is caused solely by an administrative error or technical problem and payment is made within three working days of its due date; or
9.5.2 it reasonably apprehends that any of the events specified in clause 9.4 is about to occur in relation to the Customer and notifies the Customer accordingly.
9.6 In the event of termination of a Contract:
9.6.1 any Charges already paid for Services to be provided after the date of termination shall be non-refundable;
9.6.2 any amounts invoiced under the terminated Contract as at the date of termination shall become immediately due and payable;
9.6.3 Open ECX may invoice for any Services provided up until the date of termination and any expenses incurred in respect of those Services, and those invoices shall be immediately due and payable; and
9.6.4 where the termination of the Contract leads to the termination of a Subscription:
(a) if a Subscription to the Open ECX Platform terminates, any other Subscriptions the Customer has to the Open ECX Platform will also terminate, unless otherwise agreed;
(b) all Services (and Contracts for those Services) also terminate at the same time as the Subscription terminates, unless otherwise agreed;
(c) the Customer’s (and the Authorised Users’) access to the Open ECX Platform shall be withdrawn by Open ECX and the Customer shall not make any further attempt to access the Open ECX Platform after such date; and
(d) Open ECX shall, subject to the prior payment of its reasonable Charges for doing so (which shall be capped at £10,000), provide the Customer Content to the Customer in such standard format as Open ECX’s may elect and provide all reasonable
co-operation to allow the Customer to transfer to a replacement service provider in respect of the matters contemplated by the Contract.
9.7 The termination of a Contract shall not affect the accrued rights of the parties as at termination or the continuation of any terms which are expressly or implicitly intended to survive termination, including clauses 1, 7, 9, 10, 11, 12, 14 and 15, or the continuation of any other Contracts (except where clause 9.6.4(a) or 9.6.4(b) applies).
10. CONFIDENTIALITY
10.1 Each party undertakes that it will keep the other party’s confidential information confidential and will not at any time:
10.1.1 use that information for any purpose other than to exercise its rights and perform its obligations under a Contract (or any other purposes as the other party may expressly authorise in writing from time to time); or
10.1.2 disclose that information to any third party, except as otherwise permitted by these terms or with the other party's prior written consent.
10.2 For the purposes of these terms, a party’s confidential information is any know-how, trade secret, documentation or information (whether commercial, financial, technical, operational or otherwise) relating to its business, affairs, operations, processes, intentions, customers or suppliers and which is either marked as “confidential” or which the other party was or ought reasonably to be aware was of a confidential nature, save that this clause 10 will not apply to any information that the receiving party can demonstrate:
10.2.1 is in the public domain in substantially the same combination as that in which it was disclosed to the receiving party (other than as a result of a breach of these terms or any other obligations of confidentiality);
10.2.2 is or was lawfully received from a third party not under an obligation of confidentiality with respect to it; or
10.2.3 was developed independently of and without reference to confidential information disclosed by the other party.
10.3 A party may disclose the other party’s confidential information where and to the extent it is required to do so under operation of law, by court order or by any regulatory body of competent jurisdiction provided that, except where legally prohibited from doing so, it must:
10.3.1 provide the other with at least ten (10) days’ written notice of its intention to make the disclosure, the notice specifying the confidential information concerned and the nature of the disclosure obligation; and
10.3.2 take into account the reasonable requests of the other party in relation to the content, nature and form of the disclosure.
10.4 Each party will be entitled to divulge the other party’s confidential information to its employees, agents, directors, officers, authorised sub-contractors, professional advisors and consultants who have a need to know the same in connection with a Contract, provided that the receiving party will ensure that those persons are aware of, and will ensure that those persons comply with, these obligations as to confidentiality.
10.5 Open ECX may publish customer case studies describing its delivery of the Open ECX Platform and Services to the Customer and the benefits that the Customer has achieved by using the Open ECX Platform and Services, and the Customer agrees to cooperate in the preparation of these case studies, including providing testimonials, making available representatives to participate in audio or video interviews and providing any information which Open ECX may reasonably request to assist it in preparing the case study.
11. DATA PROTECTION
11.1 Each party agrees that, in the performance of its respective obligations under any Contract, it will comply with the provisions of the UK General Data Protection Regulation (UK GDPR), together with the Data Protection Act 2018 and any other UK law applicable to the protection of personal data in effect from time to time, in each case to the extent it applies to each of them. Where the processing is subject to the EU General Data Protection Regulation (EU GDPR), each party will also comply with the EU GDPR to the extent that it is applicable.
11.2 Where used in this clause 11, the expression Data Protection Legislation means the legislation referred to in clause 11.1 and the expressions controller, data subject, personal data, personal data breach, process and processor bear their respective meanings given in Data Protection Legislation.
11.3 Open ECX is expected to process personal data on the Customer’s behalf for the purposes of providing the Open ECX Platform, performing the Services and otherwise fulfilling its obligations under the Contract. The types of personal data that Open ECX is expected to process on the Customer’s behalf include names, job titles and email addresses relating to Authorised Users and sponsors.
11.4 Where Open ECX processes personal data on the Customer’s behalf under or in connection with a Contract, it will do so only in accordance with the terms of the Contract and the Customer’s documented instructions (unless otherwise required by law in which case Open ECX will, where permitted, inform the Customer of that legal requirement before processing).
11.5 The Customer warrants that:
11.5.1 it will only provide (or ensure the provision of) personal data to Open ECX where that personal data has been lawfully obtained and where the Customer is lawfully entitled to provide (or ensure the provision of) that personal data to Open ECX for the intended purpose and means of processing; and
11.5.2 any instructions given to Open ECX in accordance with clause 11.4 will be compliant with applicable Data Protection Legislation, be within the scope of Open ECX’s obligations under the Contract and will not (if properly performed) place either Open ECX or the Customer in breach of their respective obligations under Data Protection Legislation,
and the Customer will indemnify, keep indemnified and hold Open ECX harmless against all claims, demands, penalties, fines, actions, costs, expenses, losses and damages suffered or incurred by or awarded against Open ECX arising from or in connection with any breach by the Customer of this clause 11.5.
11.6 Where Open ECX processes any personal data on the Customer’s behalf under or in connection with a Contract it will:
11.6.1 other than as permitted by Chapter V of the UK GDPR and/or EU GDPR (as applicable), not transfer or allow the transfer of that personal data outside the United Kingdom or European Economic Area without the Customer’s written consent;
11.6.2 ensure that any persons authorised to process the personal data are subject to a duty of confidence in respect of that processing;
11.6.3 implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk, in compliance with the obligations imposed on Open ECX by article 32 of the UK GDPR / EU GDPR;
11.6.4 notify the Customer without undue delay on becoming aware of a personal data breach and cooperate with the Customer to resolve that issue; and
11.6.5 at the Customer’s expense, provide the assistance that the Customer may reasonably require to assist it to comply with its obligations to keep that personal data secure, allow it to inform a regulatory authority or data subject of a personal data breach, conduct a data protection impact assessment, consult with a regulatory authority regarding the relevant processing activities and/or respond to requests made by data subjects pursuant to Data Protection Legislation.
11.7 The Customer authorises Open ECX to engage sub-processors from time to time provided that Open ECX will notify the Customer of any intended changes concerning the addition or replacement of sub-processors and will impose upon any sub-processor (and ensure any sub-processor’s compliance with) the terms of this clause 11 as if the processing being carried out by the sub-processor was being carried out by Open ECX (and Open ECX will be liable for the acts and omissions of its sub-processors as if they were Open ECX’s own acts and omissions).
11.8 From time to time during the term of this agreement Open ECX will (upon written request from the Customer):
11.8.1 provide details in writing of its data processing activities carried out on the Customer’s behalf; and
11.8.2 on reasonable notice allow the Customer (or its appointed auditor) to audit its compliance with these terms, subject to any reasonable requirements or restrictions that Open ECX may impose to safeguard the personal data it holds on behalf of other customers and/or avoid unreasonable disruption to Open ECX’s business.
11.9 Open ECX will process personal data on the Customer’s behalf only during the term of the Contract (and following termination to the extent required to perform any post termination obligations). On the termination or expiry of any part of the Services or the Contract as a whole, Open ECX will either delete or return all personal data processed on the Customer’s behalf in connection with the applicable Services, and delete any copies (except to the extent retention is required by law or for record-keeping purposes).
11.10 Where any Authorised User expressly opts in to receive marketing communications from Open ECX, Open ECX may use that Authorised User’s personal data to provide that Authorised User with information about products and services which may be of interest. Any such marketing activity is performed as a controller for the purposes of Data Protection Legislation and Open ECX remains fully responsible for ensuring that such activities comply with Data Protection Legislation.
11.11 For the avoidance of doubt, nothing in this clause 11 or otherwise in this agreement relieves either party of its own direct responsibilities and liabilities under Data Protection Legislation.
12. LIABILITY
12. 1 Save as provided by clause 12.3 below:
12.1.1 Open ECX’s total aggregate liability in respect of all causes of action arising out of or in connection with a Contract (whether for breach of contract, strict liability, tort (including negligence), misrepresentation or otherwise) shall not exceed the lesser of (a) 100% of the total Charges paid under the Contract and (b) £1 million;
12.1.2 Open ECX will not be liable for any claim to the extent that it relates to loss of profits, goodwill, business opportunity or anticipated savings, injury to reputation, wasted management time or indirect, consequential or special loss or damage regardless of the form of action, whether in contract, tort (including, but not limited to, negligence) or strict liability or otherwise howsoever arising and regardless of whether Open ECX knew or had reason to know of the possibility of the loss or damage in question; and
12.1.3 Open ECX shall not be liable for any delay in or failure to comply with its obligations to the extent that such failure results from the actions or omissions of the Customer.
12.2 The express terms set out in the Contract are in lieu of all warranties, conditions, terms, undertakings and obligations implied by statute, common law, custom, trade usage, course of dealing or otherwise, all of which are hereby excluded to the fullest extent permitted by law.
12.3 Nothing in a Contract shall limit or exclude Open ECX’s liability for death or personal injury caused by its negligence, for fraud or fraudulent misrepresentation, and/or for any other loss or damage the exclusion or limitation of which is prohibited by English law.
12.4 The Customer shall indemnify and hold Open ECX harmless from and against all costs, damages, liabilities, loss and demands incurred by Open ECX arising from:
12.4.1 any breach by an Authorised User of the Acceptable Use Policy; and/or
12.4.2 any criminal or civil legal action brought against Open ECX as a result of storage or transmission of information or material using the Open ECX Platform or otherwise as a result of the use of the Open ECX Platform and/or Services by the Customer or any Authorised User other than in accordance with the Documentation and as permitted by the relevant Contract.
13. FORCE MAJEURE
13.1 Open ECX shall not be liable or responsible for any failure to perform, or delay in performance of, any of its obligations under a Contract that is caused by events outside its reasonable control (a Force Majeure Event).
13.2 A Force Majeure Event includes any act, event, non-happening, omission or accident beyond Open ECX’s reasonable control and includes in particular (without limitation), civil commotion, terrorist attack or threat of terrorist attack, war, threat or preparation for war, fire, malicious damage, epidemic or pandemic, storm, flood, drought, or other natural disaster or adverse weather conditions, strikes, lock-outs, other industrial action or other shortage of available staff, impossibility of the use of public or private telecommunications networks, or interruption or failure of utility service, malicious activity against Open ECX’s computer systems such as unauthorised access, computer virus or denial of service attack, other illegal or unlawful actions of third parties, acts or omissions of other customers and/or their respective Authorised Users or non-performance by suppliers, Open ECX’s subcontractors or agents and the acts, decrees, legislation, regulations, policy or restrictions of any government or public authority.
13.3 Where the Force Majeure Event affects the Open ECX Platform the Customer accepts that access to the Open ECX Platform may be unavailable or restricted during the continuance of the Force Majeure Event. Where the Force Majeure Event affects Services, the Customer’s right to receive such Services is deemed to be suspended for the period that the Force Majeure Event continues, and Open ECX shall have an extension of time for performance for the duration of that period. Open ECX shall use its reasonable endeavours to bring the Force Majeure Event to a close or to find a solution by which its obligations under a Contract may be performed despite the Force Majeure Event.
14. NOTICES
14.1 Each notice given under or in relation to a Contract must be in writing and either delivered by hand or sent by pre-paid first class post to the recipient’s nominated address, or sent by email to the recipient’s nominated email address.
14.2 Open ECX’s nominated postal address for notices is Open ECX Limited, Blackfriars House, Parsonage, Manchester, M3 2JA and its nominated email address is enquiries@OpenECX.co.uk. In either case, the communication must be marked for the attention of Nathan Ollier, CEO.
14.3 The Customer’s nominated postal address and email address for notices shall be deemed to be as set out in the most recent Order Form submitted to and accepted by Open ECX.
14.4 Each party may update its nominated contact details by notice to the other from time to time.
14.5 A notice shall be deemed to have been received:
14.5.1 in the case of a delivery made in person, when delivered;
14.5.2 in the case of first class post, two working days after posting; and
14.5.3 in the case of email, at the time of sending if between 9am and 4:30pm on a working day, at 9am on that day if sent before 9am on a working day or otherwise at 9am on the next working day (provided in each case that no email delivery failure notification is received).
14.6 This clause 14 does not apply to the service of legal proceedings or other documents in any legal action.
15. GENERAL
15.1 A Contract constitutes the entire agreement between the parties and supersede and extinguish all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. Each party acknowledges and accepts that, in entering into a Contract, it has not relied upon any representation, undertaking or promise except as set out in the Contract.
15.2 Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in a Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in a Contract.
15.3 The failure or delay of either party to enforce or to exercise, at any time or for any period of time, any term of or any right, power or privilege arising pursuant to a Contract does not constitute and shall not be construed as a waiver of such term or right, remedy, power or privilege and shall in no way affect either party's right later to enforce or exercise it, nor shall any single or partial exercise of any right, remedy, power or privilege preclude any further exercise of the same or the exercise of any other remedy, right, power or privilege.
15.4 The invalidity or unenforceability of any provision of or any part of a provision of or any right arising pursuant to a Contract shall not in any way affect the remaining provisions or rights, which shall be construed as if such invalid or unenforceable part did not exist.
15.5 The Customer may not assign, transfer, sub-contract or otherwise part with a Contract or any right or obligation under it, except to any company or entity that is a member of the Customer's group, without Open ECX’s prior written consent (not to be unreasonably withheld or delayed).
15.6 Open ECX reserves the right to make changes to the terms of a Contract as it deems necessary from time to time upon notice to the Customer solely in order to reflect:
15.6.1 technical and/or operational matters; and/or
15.6.2 changes to applicable laws, regulations or industry practice,
in each case providing that such changes do not result in any material reduction in performance or functionality of the Open ECX Platform or any Services.
15.7 An Order Form may be executed in any number of counterparts, each of which when executed shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement. No counterpart shall be effective until each party has executed at least one counterpart.
15.8 Nothing in a Contract shall confer any rights upon any person who is not a party to the Contract, whether under the Contracts (Rights of Third Parties) Act 1999, or otherwise.
15.9 Each Contract (including any associated non-contractual disputes or claims) is governed by English law and the parties hereby accept the exclusive jurisdiction of the English courts in relation to any dispute arising under or in connection with a Contract.