Ohalo End User Licence Agreement

Grant of Licences

• Licence from Ohalo. During the Term, Ohalo grants to End User a non-exclusive, non-transferable, non-sublicensable licence to use the Products and Professional Services purchased by End User on the End User’s premises or devices in accordance with the Agreement. Such use is limited to End User’s direct beneficial business purposes only.

• Open Source Software. The Products may in part contain open-source software and End User will in turn be bound additionally by any terms that travel with the relevant open-source software licences. These can be made available upon request.

• Licence from End User. End User grants to Ohalo, its licensors and each of their Affiliates a non-exclusive, royalty -free licence to use, copy, transmit, index and store End User Data solely: (a) to the extent necessary to perform their obligations or enforce their rights, including under this Agreement; (b) for improvement and development of Ohalo’s Products and Professional Services; or (c) where required or authorised by law.

Licence Restrictions

1. End User will not, directly or indirectly:
   

   1. Use the Products, Product Support, and Customer Support in violation of any applicable law or Ohalo’s standard published policies then in effect, in connection with unlawful material, in a manner that would cause material risk to the security and operations of Ohalo or any of its customers or to the continued normal operation of other Ohalo customers;

   2. Modify, adapt, translate, or create derivative works based on the Products or Professional Services, reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Products, except to the extent that End User is expressly permitted to and Ohalo is not allowed to restrict End User under applicable law;

   3. Copy, use, distribute, republish, download, display, transmit, sell, rent, lease, host or sub-license the Product and Professional Services other than as permitted under this Agreement;

   4. Use the Products for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels; or

   5. Share its login IDs and passwords.

2. The Products may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Ohalo or by third-party providers, or because of other causes beyond Ohalo's reasonable control, but Ohalo shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.

3. Ohalo may suspend any use of the Products by End User if Ohalo has reasonable cause to believe that their use may be (or alleged to be) in breach of this Agreement, and End User fails to remedy such breach (if capable of remedy) within thirty (30) days of being given notice to do so.

Third-party Access and Security

1. Third-party Access. End User may allow a third-party contractor to operate, use or access the Products and Professional Services solely on End User’s behalf, on the following conditions: (a) use or access by the third-party contractor is only for End User’s direct beneficial business purposes; (b) upon request, End User must provide Ohalo and its licensors with the identity of the contractor and the purpose for the contractor’s use or access to the Products and Professional Services; and (c) End User is responsible for ensuring that third-party contractor complies with the terms of this Agreement. End User is responsible for and liable for the acts or omissions of such third-party as if they were End User’s acts or omissions.

   
   

2. Equipment. End User shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Products, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, "Equipment").

   
   

3. Security. End User shall be responsible for maintaining the security of the Equipment, End User accounts, passwords (including but not limited to administrative and user passwords) and files, and for all use of End User accounts or the Equipment with or without the End User’s knowledge or consent.

Services and Support

1. Ohalo will use commercially reasonable efforts to provide End User with the Products in accordance with the Service Level Terms set out in Schedule 1 to this Agreement.

   
   

2. Ohalo will provide End User with reasonable technical support services in accordance with Schedule 2 to this Agreement.

Payment of Fees

This clause applies only if End User orders the Products and Professional Services directly from Ohalo. If End User orders the Products and Professional Services from an Ohalo Partner, payment terms are agreed between End User and the Ohalo Partner.

1. Payment. All Fees will be invoiced on the applicable Start Date of the Order Form and/or the Services Provisioning Order and the payment terms are Net 30 days from the date of the invoice. All invoices will be delivered electronically to End User. End User must pay the Fees without any set-off, counter-claim, abatement, or other similar deduction to withhold payment of any amount due to Ohalo.

   
   

2. Additional Fees. If End User’s use of the Products exceeds the capacity that End User has purchased on the Order Form or Services Provisioning Order and incurs additional Fees, End User agrees to pay the additional Fees which Ohalo will invoice End User for.

   
   

3. Change of Fees. If any of the Products or Professional Services are eligible for a renewal Term, Ohalo reserves the right to increase the fees and applicable charges and to institute new charges and fees for each renewal License Term.

   
   

4. Failure to pay. If End User fails to make any payment due to the Ohalo under this Agreement by the due date for payment, End User shall pay interest on the overdue amount at the rate of 3% per annum above Barclay Bank's base lending rate from time to time or the maximum rate permitted by applicable law (if lower). Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. End User shall pay the interest together with the overdue amount.

   
   

5. Disputes. If End User believes in good faith that Ohalo has charged End User incorrectly, End User must contact Ohalo in writing no later than sixty (60) days after the date of the invoice, specifying the error, in order to receive an adjustment or credit. Enquiries should be directed to Ohalo’s customer support department. End User must pay the undisputed portions of Ohalo’s invoice.

   
   

6. Taxes. Fees in the Order Form and Services Provisioning Order do not include taxes. Ohalo may invoice End User for any applicable taxes and End User must pay these taxes.

Intellectual Property

1. Ohalo Property. All Ohalo Property is and will remain the sole and exclusive property of Ohalo and its licensors (as applicable) and will be returned to Ohalo promptly at Ohalo’s request, together with any copies thereof. Except for the express limited rights granted under this Agreement, no right, title or interest in or to any of the Ohalo Property is granted, transferred or otherwise provided by this Agreement. Ohalo and its licensors reserves all rights not expressly granted to End User.

   
   

2. If End User acquires any Intellectual Property Rights in or relating to Ohalo Property by operation of law, or otherwise, these rights are deemed to be and are hereby irrevocably assigned to Ohalo or its licensors, as the case may be, without further action by either party. Any goodwill derived from the use by End User of Ohalo’s Intellectual Property Rights inures to the benefit of Ohalo or its licensors, as the case may be.

   
   

3. End User Data. As between Ohalo and End User, End User owns (or where applicable, must ensure it has a valid licence to) the End User Data.

Compliance with Applicable Laws

1. End User represents and warrants that it will use the Products and Professional Services only in compliance with all applicable laws and regulations.

   
   

2. Ohalo represents and warrants that in providing the Products and Professional Services, it will comply with all applicable laws and regulations.

Confidentiality

1. No Use or Disclosure. The receiving party will only use Confidential Information for the purposes of or as permitted under this Agreement (including by Ohalo to improve the Products) and will not reproduce, disseminate, or disclose Confidential Information to any person, except to its officers, directors, Affiliates, employees and authorised representatives (e.g., temporary employees, consultants, and contractors) who need to know the Confidential Information for the purposes of this Agreement and are bound by written confidentiality obligations at least as stringent as those in this Agreement.

   
   

2. Protection of Information. The receiving party will protect Confidential Information with the same degree of care as it protects its own information of similar sensitivity, but with no less than reasonable care. The receiving party will promptly notify the disclosing party upon becoming aware of a breach or threatened breach of confidentiality and will cooperate with any reasonable request of the disclosing party in enforcing its rights.

   
   

3. Permitted Disclosure. The receiving party may disclose Confidential Information: (a) as approved in a writing signed by the disclosing party; or (b) as necessary to comply with any applicable law or valid legal process or government regulation but only after it notifies the disclosing party (if legally permissible) and gives the disclosing party all assistance reasonably required by the disclosing party to enable the disclosing party to seek a protective order or otherwise contest / limit such required disclosure, at the disclosing party’s expense.

Professional Services

1. Deliverables. Ohalo grants to End User a non-exclusive, non-sublicensable and non-transferable license to use the materials developed and provided by Ohalo or its licensors in performing the Professional Services (“Deliverables”) solely for use of the Products for End User’s direct beneficial business purposes. This does not limit or modify any licence that may have been granted to End User for the Products.

   
   

2. IP Rights. Ohalo retain all rights, title and interest (including intellectual property rights) in and to the Deliverables. To the extent that End User participates in the creation or modification of any Ohalo Property or Deliverables, End User waives and assigns to Ohalo all rights, title and interest (including intellectual property rights) in the Ohalo Property or Deliverables. Ohalo is free to use the residuals of Confidential Information for any purpose, where “residuals” means that Confidential Information disclosed in non-tangible form that may be retained in the memories of representatives of Ohalo or its licensors.

   
   

3. Subcontractors. End User agrees that Ohalo may use subcontractors in the performance of the Professional Services. Where Ohalo subcontracts any of its obligations concerning the Professional Services, Ohalo will remain responsible for its obligations to End User under this Agreement.

Warranties and Disclaimers

1. Ohalo will use reasonable efforts consistent with prevailing industry standards to maintain the Products and Professional Services in a manner which minimizes errors and interruptions in the Products and Professional Services.

   
   

2. Ohalo and its licensors do not warrant that the Product and Professional Services will be uninterrupted or error free; nor do they make any warranty as to the results that may be obtained from use of the Product and Professional Services. Except as expressly set forth in this Agreement, the Products and Professional Services are provided "as is" and Ohalo and its licensors disclaim all warranties, express or implied to the extent permitted by law, including, but not limited to, implied warranties of sale, fitness for a particular purpose and non-infringement of third parties' rights.

   
   

3. End User shall allow Ohalo and its licensors to audit its use of the Products, provided that such audits are: (a) not conducted more than once per quarter; (b) kept to the minimum required; (c) not conducted outside of the End User’s business hours; (iv) with all costs borne by Ohalo and /or its licensors.

Data Protection

1. Compliance. Ohalo will comply with the Data Processing Addendum and applicable data protection laws in connection with its role as data processor. End User will comply with the Data Processing Addendum and applicable data protection laws in connection with its role as data controller. End User agrees not to disclose or transfer to Ohalo or its licensors any personal data in violation of any applicable laws, including applicable data protection laws.

   
   

2. Data Protection Indemnity. Indemnifying Party, at its expense, will indemnify and defend the Indemnified Party against any Third-party Claim arising from the Indemnifying Party’s failure to comply with the applicable data protection laws in its role as defined in clause 10.1. The indemnifying Party will pay all administrative fines or penalties imposed by a regulatory authority, damages, costs and expenses, including reasonable legal fees (whether by settlement or final award) incurred by the indemnified Party directly from any such Third-party Claim.

   
   

3. Exception. Indemnifying Party will have no liability or obligation to defend any claim under this clause 10 to the extent that such claim arises from any act or mission of Indemnified Party that impedes or prevents Indemnifying Party’s ability to comply with applicable data protection laws or the Data Processing Addendum.

Infringement of Intellectual Property Rights

1. IP Infringement Indemnity. Ohalo, at its expense, will indemnify and defend End User against any Third-party Claim to the extent that it alleges that the Products, as of the delivery date, infringes any copyright or misappropriates any trade secret. Ohalo will pay all damages, costs and expenses, including legal fees (whether by settlement or final award) incurred by End User directly from any such Third-party Claim. These payment obligations will not apply to damages, costs, and expenses, including legal fees (whether by settlement or final award) to the extent such payment obligation results from:

   1. infringing or illegal End User Data;

   2. use of the Products in combination with any software, hardware, network, technology or system not supplied by Ohalo, if the Products would not be infringing without this combination;

   3. any modification or alteration of the Products other than by Ohalo;

   4. End User’s continued use of the allegedly infringing Product after being notified to cease usage or to use a modification or replacement;

   5. End User’s violation of this Agreement or applicable law; or

   6. failure to implement an update, upgrade or fix that Ohalo has provided where such implementation may avoid infringement.

2. Mitigation. If any Third-party Claim which Ohalo is obligated to defend has occurred or in Ohalo’s determination is likely to occur, Ohalo may, at its option: (a) replace or modify the Products so that it avoids such claim; or (b) if such remedies in (a) are not available on commercially reasonable terms, terminate the affected Order Form (or part of it) for the infringing Products and refund a pro-rata portion of any prepaid unused Fees for the infringing Products.

Other Claims

1. Third-party Claims. End User will, at its expense, indemnify and defend Ohalo and its licensors against any Third-party Claim to the extent it arises from any alleged breach of this Agreement arising from End User’s use of the Products or Professional Services. End User will pay all damages, costs and expenses , including legal fees (whether by settlement or final award) incurred by Ohalo and its licensors directly from any such Third-party Claim.

Conditions of Indemnification

1. Procedures. Each Indemnifying Party will have no liability for any claim under clauses 11, 12 and 13 that arises from any failure of Indemnified Party to:
   1. promptly notify Indemnifying Party in writing of any potential or actual Third-party Claim, to the extent that Indemnifying Party is prejudiced by this failure;
   2. provide Indemnifying Party with the sole and exclusive right to control the defence and settlement of the Third-party Claim;
   3. provide Indemnifying Party with all reasonable assistance requested by Indemnifying Party in the defence or settlement of such Third-party Claim; or
   4. refrain from making admissions or statements or settling any claim without Indemnifying Party’s prior written approval.
2. Sole Remedy. The remedies in clauses 11, 12 and 13 are Indemnifying Party’s entire liability and Indemnified Party’s sole and exclusive remedies regarding the subject matter giving rise to any claim under clauses 11, 12 and 13.

Limitation of Liability

1. Nothing in this Agreement excludes or limits either Party’s liability for: (a) death or personal injury caused by its negligence; (b) fraudulent misrepresentation; (c) in respect of the End User, payment of Fees; or (d) any other liability which may not lawfully be excluded or limited.

2. Subject to clause 7.1, neither Party will be liable (whether from breach of contract, tort (including negligence), breach of statutory duty or otherwise) arising under or in connection with this Agreement for:
   
   loss of profits;
   loss of sales or business;
   loss of agreements or contracts;
   loss of anticipated savings;
   loss of or damage to goodwill;
   loss of use or corruption of software, data or information; or
   any indirect or consequential loss.
   
   This clause applies regardless of: (a) whether such damages were foreseeable; (b) whether or not the applicable Party was advised of the possibility of such damages; and (c) the legal or equitable theory (contract, tort or otherwise) upon which the claim is based.
3. Subject to clauses 15.1 and 15.2, Ohalo’s maximum liability arising out of or relating to each Order Form, Services Provisioning Order and this Agreement or its subject matter (whether from breach of contract, tort (including negligence), breach of statutory duty or otherwise) is limited to an amount equal to the total of the Fees paid by the End User under the relevant Order Form or Services Provisioning Order in the twelve (12) months prior to the date on which the claim arose.

Term and Termination

1. Term. This Agreement applies to each of the Products and Professional Services from the effective date of the Order Form and/or Services Provisioning Order until the expiration of the applicable license term for the Product or the term for Professional Services, unless renewed or terminated earlier in accordance with this Agreement (“Term”).

   
   
2. Termination for Cause. Either party may, on written notice to the other party, immediately terminate this Agreement, or at Ohalo’s discretion, suspend provision of all or part of the Products or Professional Services, if the other party:

   1. materially breaches any term of this Agreement and fails to remedy such breach (if capable of remedy) within thirty (30) days of being given notice to do so; or

   2. becomes insolvent, makes composition with its creditors, has a receiver or administrator of its undertaking or the whole or a substantial part of its assets appointed, or an order is made, or an effective resolution is passed, for its administration, receivership, liquidation, winding-up or other similar process, or has any distress, execution or other process levied or enforced against the whole or a substantial part of its assets (which is not discharged, paid out, withdrawn or removed within twenty eight (28) days), or is subject to any proceedings which are equivalent or substantially similar to any of the foregoing under any applicable jurisdiction, or ceases to trade or threatens to do so.

      
      
3. Effect of Termination. Upon termination or expiration of this Agreement:

   1. the licence and associated rights for the Products and Professional Services will immediately terminate;

   2. End User must, at its expense return or delete (at Ohalo’s option) all copies of the Products, related documentation and any Confidential Information of Ohalo or its licensors which End User may have in its possession or control.

      
      

4. Survival. The termination of this Agreement will not: (a) prejudice any accrued rights or liabilities of either party as at the date of termination; or (b) affect any provisions of this Agreement which by their nature survive termination or expiration, including licence restrictions and compliance with laws.

General

1. Further Assurances. Each Party will give to the other the information and assistance and execute the documents which may be reasonably required to give full effect to the terms of this Agreement, including such agreements, information and documents required under applicable laws or administration regulations.
2. Force Majeure. If due to circumstances beyond the reasonable control of a Party, such Party cannot perform its obligations under this Agreement (other than payment obligations), the rights and obligations of such Party, to the extent and for the time said circumstances prevent performance, will be temporarily suspended. If either Party intends to rely upon this clause, it will give prompt notice to the other.
3. Injunctive Relief. Actual or threatened breach of certain clauses of this Agreement (including provisions on intellectual property (including ownership), licence, data protection and confidentiality) may cause immediate, irreparable harm that is difficult to calculate and cannot be remedied by the payment of damages alone. Either Party will be entitled to seek preliminary and permanent injunctive relief and other equitable relief for any such breach.
4. Publicity. Neither Party will use the name or branding of the other Party in publicity, advertising, or similar activity, without the prior written consent of the other, except that Ohalo may use End User's name and branding on our website or in customer listings as part of our marketing efforts, in accordance with any branding guidelines provided to Ohalo.
5. Expenses. Any expenses, costs and charges incurred by the End User in the performance of its obligations under this Agreement shall be paid by the End User unless Ohalo has expressly agreed beforehand in writing to pay such expenses, costs and charges.
6. Assignment. End User may not sub-license, assign or transfer any of its rights or obligations under this Agreement without the prior written consent of Ohalo. Ohalo may assign or transfer any of its rights and obligations under this Agreement at its discretion as part of a group reorganization, change in control or trade sale. Any attempted assignment in breach of this clause will be invalid.
7. No Agency. Nothing in this Agreement is intended to create an agency, partnership, joint venture, employment, trust or any fiduciary relationship and neither party has authority to bind the other.
8. Notice. Any notice given under this Agreement must be in writing by email to the following addresses (or addresses notified in writing by either Party): to Ohalo: [email protected] ; and to End User: at the End User’s email address stated on the Order Form.
9. Modification and Waiver. This Agreement may not be varied or amended except in writing signed by both parties. The waiver by either Party of any breach of any provisions of this Agreement does not waive any other breach.
10. Severance. If any provision of this Agreement is held invalid or unenforceable, the remainder of the provision and this Agreement will continue in full force and effect.
11. Third Party Rights. Save as expressly set out in this Agreement, a person who is not a Party to this Agreement or a permitted assignee has no rights under the Agreement (Rights of Third Parties Act 1999) to enforce any term of this Agreement.
12. Entire Agreement. This Agreement sets out the final, complete and exclusive agreement between the parties relating to the subject matter. It cancels and supersedes all previous agreements, understandings, proposals, discussions, representations, both oral and written relating to such subject matter. Any terms in End User’s purchase order, or any other related documentation submitted by or on behalf of End User, do not form part of this Agreement and are void.
13. Governing Law and Jurisdiction. This Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales. Each Party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Agreement or its subject matter or formation.
14. Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed an original, but all of which together will constitute the same agreement. If one version or executed counterpart is in a language other than English, the English version will control.
15. Order of Precedence. If there is any conflict between the documents, the order of precedence is set out below in descending order of control: (a) the Order Form and the Services Provisioning Order; (b) the Data Processing Addendum; and (c) this End User Licence Agreement.

SCHEDULE 1

SERVICE LEVEL TERMS

1. The Supported Products shall have a minimum availability of 95%, measured monthly, excluding holidays and weekends and scheduled maintenance.

2. If End User requests maintenance during the hours set out in paragraph A, any uptime or downtime calculation will exclude periods affected by such maintenance.

3. Any downtime resulting from outages or performance and security issues of third party connections, datasources, utilities, infrastructure or other reasons beyond Ohalo’s control will also be excluded from any such calculation under paragraph A.

4. For any month where the total availability is less than that mentioned in paragraph A, Ohalo will credit End User 1 day for each day Product is unavailable for a period of 6 or more consecutive hours.

5. Downtime shall begin to accrue as soon as End User (with notice to Ohalo) recognises that downtime is taking place, and continues until the availability of the Supported Products is restored.

6. In order to receive Downtime Credit, End User must notify Ohalo in writing within 24 hours from the time of downtime, and failure to provide such notice will forfeit the right to receive Downtime Credit.

7. Downtime Credits are applied as additional days added to the next contract Term, may not be redeemed for cash, and shall not be cumulative beyond a total of one (1) week in any one (1) calendar month in any event.

8. Downtime Credits cannot be earned if the installed Product is past its EOL Date or no longer supported for any other reason.

9. Ohalo’s blocking of data communications or other Supported Products in accordance with its policies shall not be deemed to be a failure of Ohalo to provide adequate service levels under this Agreement.

10. Downtime Credits cannot be earned after the 24th hour of Downtime notification if Ohalo is still awaiting End User’s submission of Diagnostics and Usage Information.

SCHEDULE 3

CUSTOMER SUPPORT TERMS

1. There are 3 levels of Customer Support; Standard, Hypercare, and Extended Hypercare.

2. Hypercare and Extended Hypercare are paid services.

3. Hypercare includes predefined services to assist with initial onboarding of the Product.

4. Extended Hypercare includes Hypercare.

5. Ohalo will provide Standard Customer Support for the duration of the End User’s contract.

6. Customer Support is provided during normal business hours (8 A.M. to 5 P.M.) in the region where Ohalo Customer Support staff is located closest to End User.

7. Ohalo will aim to respond to any requests for Customer Support within twenty-four (24) hours of receipt of their request.

8. Requests for Customer Support must be made to [email protected].

9. Customer Support does not include End User site visits.

10. In the event that Ohalo must travel to End User’s site to provide Customer Support, the End User shall be charged on a daily basis in accordance with Ohalo’s current list prices.

11. Hypercare and Extended Hypercare include Standard Customer Support.

12. End Users may only purchase Hypercare during the first twenty-four (24) weeks of the start of their license agreement.

13. End Users may purchase Extended Hypercare any time however, Extended Hypercare subscription does not extend End User’s license to use the Product.

14. Hypercare and Extended Hypercare are not renewable services.

15. End User agrees to share Diagnostics and Usage Information during each incident of Customer Support.

ANNEX A

Personal Data processing purposes and details

Subject matter of Processing: Personal Data imported by End User or on its behalf into Ohalo’s systems or services from End User’s internal data sources or third-party data providers or collected by Ohalo in connection with the use of the Products and Professional Services.

Duration of Processing: Term of the Agreement

Nature of Processing: Ohalo will Process the Personal Data in accordance with End User’s Processing instructions provided in accordance with this Agreement.

Business Purpose: to provide the Products and Services by Ohalo to End User as described in the Agreement

Personal Data Categories: as determined and controlled by End User in its sole discretion and may include identification and contact data (e.g. name, date of birth, email address, telephone number, title, address), commercial and transaction information (e.g. payment information, customer support details, details of products used) or IT information (e.g. IP address, cookie data, location data).

Data Subject Types: as determined and controlled by End User in its sole discretion and may include End User’s employees, vendors, prospects, customers and business partners.