The definitions and rules of interpretation in this clause 1 apply in this agreement.
Agreement: the contract between Ometis and the Customer for the supply of Software and Maintenance and/or Support and/or Hosting and/or Training and/or Professional Service Days.
Charges: the sums payable to Ometis set out in the Sales Order.
Confidential Information: information (whether or not recorded in documentary form, or stored on any magnetic or optical disk or memory) relating to the business, products, pricing, affairs and finances of a Party for the time being confidential to that Party and trade secrets including, without limitation, technical data and know-how relating to the business of the Party or any of its business contacts, whether specifically identified as confidential or not.
Customer: means the person or company who places an order with Ometis which Ometis accepts.
Head Licence: the terms on which Qlik supplies the Software and Maintenance to Ometis which can be found at https://www.qlik.com/us/-/media/files/legal/license-agreements/qlik/qula-english.pdf.
Hosting: the provision of a cloud-based user environment which provides the IT infrastructure for the purpose of hosting software and data delivering reports.
IPR: all and any intellectual property rights including but not limited to patents, rights to Inventions, copyright and related rights, trademarks, trade names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to preserve the confidentiality of information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which may now or in the future subsist in any part of the world.
Inventions: inventions, ideas and improvements, whether or not patentable, and whether or not recorded in any medium.
Maintenance: Qlik’s Enterprise Support Coverage level of Support and Maintenance details of which can be found at https://www.qlik.com/us/-/media/files/legal/license-agreements/additional-terms/qlik-support-policy.pdf
Ometis: Ometis Limited, company number 7095283 whose registered office is at 42 Lytton Road, Barnet, Hertfordshire, EN5 5BY.
Parties or Party: Ometis and the Customer or either as the context requires.
Professional Service Day or Days: the consultancy services of one or more consultant for seven hours between 8am and 6pm.
Proposal: means the Ometis proposal relevant to the Agreement.
Qlik is: QlikTech UK Limited registered number 05292408.
Qlik’s Support Policy: the policy that can be found at https://www.qlik.com/us/-/media/files/legal/license-agreements/additional-terms/qlik-support-policy.pdf or any substitute for that policy introduced by Qlik.
Sales Order: Ometis’ standard for Sales Order addressed to the Customer relevant to this Agreement
Software: means the Qlik software listed in the Sales Order.
Support: Ometis Pro-Active Support.
Term: the period of years or months set out on the Sales Order beginning on the date Ometis accepts the Customer’s offer made in in the Sales Order.
Training: the training listed in the Sales Order which is selected from standard Ometis training courses.
The headings in this agreement are inserted for convenience only and shall not affect its construction.
A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.
The Customer will pay the Charges to Ometis together with all reasonable out of pocket expenses, including any travel costs.
When this Agreement automatically renews at the end of the Term the Charges for Software and Maintenance will increase to Qlik’s published rates, and the charges for Support and Hosting will increase either to reflect either the increased costs incurred by Ometis in providing those services or to reflect the rise in the Retail Price Index, whichever is the higher.
All Charges and expenses will be due and payable at the times set out in the Sales Order and time for payment of all sums due under the Agreement is of the essence.
If no dates appear in the Sales Order then all annual and monthly charges are due at the beginning of each year or month and are payable 14 days after the date of Ometis’ invoice, and all other charges are due immediately and payable within 14 days of the date of Ometis’ invoice.
Where there is a suspension of Services and/or delay in delivery of Software and/or Services through the Customer’s instructions or lack of instructions or lack of relevant Customer assistance, Ometis reserves the right to recover any extra reasonable expenses and costs incurred by Ometis as a result of such failures or delays and these shall be payable by the Customer upon receipt of Ometis’ invoice for such expenses and costs.
Where Ometis agrees to accept payment by instalments and any one of those payments is more than 7 days late then the whole of the balance of the sums remaining due under the Agreement becomes immediately due and payable.
Without prejudice to any other rights, interest shall by charged on any overdue or unpaid Charges that are due and payable at the rate of four per cent (4%) over the base lending rate of Lloyds Banking Group Plc per month, from the due date until the relevant Charges are paid in full to Ometis.
Ometis acts as a specialist supplier of Qlik products and by this Agreement sublicences the Software to the Customer.
All Software and Maintenance will be supplied by Ometis to the Customer subject the Head Licence and the Support Policy. Both the Head Licence and the Support Policy will be deemed to be adapted to this Agreement so that Ometis will stand in place of Qlik in both the licence and the Support Policy save that where the terms of the Head Licence are specifically contradicted by this Agreement the terms of this Agreement will prevail.
Ometis grants the Customer a sub licence to use the Software and will provide Maintenance on the same terms as the Head Licence and the Support Policy.
In respect of the Software and Maintenance the Customer shall not be entitled to receive any greater benefit under the Agreement than shall be received by Ometis under the Head Licence from Qlik.
The Customer acknowledges and agrees that no IPR in the Software will pass to the Customer from Ometis.
Throughout the term Ometis will provide support.
Throughout the Term Ometis will provide Hosting.
Hosting will be provided to Ometis by a third party appointed by Ometis from time to time (“the Hosting Provider”). Ometis will supply Hosting to the Customer on the same terms as the Hosting is supplied to Ometis by the Hosting Provider including any clauses limiting liability, which terms are available on request, unless those terms are specifically contradicted by this Agreement in which case the terms of this Agreement will prevail.
Ometis will deliver the Training to the Customer.
Ometis will provide to the Customer the Professional Service Days set out in the Sales Order.
By agreeing to buy the Professional Service Days the Customer contracts to buy the time offered by Ometis and no more. The parties acknowledge and agree that any references to specific reports or projects in the discussions and correspondence that led up to the Sales Order, including but not limited to any formal proposal or project specifications, does not commit Ometis to delivering those reports or projects, nor does it commit the Customer to use the Professional Service Days to deliver those reports or projects.
The Customer acknowledges and agrees that the provision of the Professional Service Days is dependent upon its reasonable co-operation and assistance and that any failures or delays in the Customer’s provision of such assistance may have a detrimental effect upon the provision of the Professional Service Days.
The Customer will provide Ometis with full, safe and uninterrupted access, including remote access, to the Customer’s premises (during normal working hours), systems, facilities and the Software as may be reasonably required for the purpose of delivering the out the Professional Service Days.
The Customer will ensure that Ometis’ personnel who attend the Customer’s premises shall be provided with a safe and secure working environment and in compliance with all health and safety laws and regulations (or relevant equivalent).
Where the Professional Services include any services to be provided to the Customer by a third party, including but not limited to communications lines and third party software, such services and their costs will be subject to the relevant third party terms and conditions.
Any times or dates in this Agreement are estimates only. Time is not of the essence in this contract other than in relation to payment. Ometis will do its best to honour any dates or times but is not committed or contractually obliged to do so.
The Software and Maintenance, Support, and Hosting supplied under this Agreement will be supplied for the Term set out in the Sales Order and the Agreement will automatically renew for successive one year terms unless the Customer provides written notice that it does not wish to renew at least sixty (60) days before the end of the Term or the end of any subsequent year.
If any payment under this Agreement is late Ometis may at its option either terminate the Agreement or suspend its obligations under this Agreement until all the of the sums due to it from the Customer whether under the Agreement or any other agreement have been paid.
If, in Ometis’ reasonable judgement, the Customer’s financial condition no longer justifies the payment terms agreed with the Customer Ometis may suspend or terminate the Agreement and any other agreements unless the Customer pays all sums due to Ometis under this Agreement or any other agreement within 3 days of receiving notice from Ometis that it is required to do so.
Ometis may terminate or suspend this Agreement if;
Without prejudice to any other remedy either party has the right to, terminate the Agreement and/or suspend all or any of its obligations under this Agreement if the other commits a material breach of the Agreement that is not remedied 30 days after receipt of a notice from the other party.
Upon termination all rights of the Customer under the Agreement shall cease, the Customer shall immediately pay all sums due to Ometis under the Agreement prior to the date of termination.
The accrued rights of the Parties as at such termination and/or any provision expressly stated to survive, or implicitly surviving termination shall not be affected or prejudiced.
The Customer shall maintain relevant policies of insurance providing an adequate level of cover in respect of all risks which may be incurred including death or personal injury, loss of or damage to property in relation to Ometis’ staff or contractors while on the Customer’s premises and in relation to the Customer’s and/or Ometis’ equipment whilst at the Customer’s premises.
The Customer shall provide written evidence to Ometis within 5 working days of a written request to demonstrate that the appropriate insurance cover is in place.
The Parties acknowledge and agree that the ownership and rights in any IPR of the other Party and any third party remain with the relevant Party and such third party respectively and that no such IPR shall transfer under this Agreement or otherwise in any way or for any purpose. Neither Party will breach the IPR of the other Party or any third party in the provision or use of the Software and/or Professional Services as applicable.
Each Party agrees that all Confidential Information of the other Party will be kept confidential, used solely for the purposes of the Agreement and will not be disclosed or be allowed to be disclosed by the receiving Party.
These confidentiality undertakings, restrictions and obligations shall not apply to the Confidential Information which:
All Confidential Information will be returned to the Party who disclosed it or, at that Party’s request, will be destroyed, together with any copies (including extracts thereof and any computer or other records) promptly at the earlier of the disclosing Party’s request or upon the expiration or earlier termination of the Agreement.
These confidentiality provisions shall survive expiry or termination of the Agreement and shall continue for a period of three years from the completion of the completion of the supplies or works done under this Agreement.
The following definitions apply:
The Parties agree that the Customer shall be the Controller and Ometis shall be the Processor regarding any Customer Personal Data processed by Ometis under this Agreement.
14.3. Ometis shall:
Ometis shall promptly and fully notify the Customer in writing of any notices in connection with the processing of any Customer Personal Data, including any personal data breach or subject access requests under the Data Protection Laws, and provide such information and assistance as the Customer may reasonably require.
Ometis shall delete or return all Customer Personal Data to the Customer after the end of the provision of the Professional Services, save where it is required to retain such data for compliance with applicable European Union or Member State law.
The Customer shall not, for the duration of the Agreement and for 3 months after any termination of the Agreement directly or indirectly induce or attempt to induce any employee or consultant of Ometis who has been engaged in the provision, receipt, review or management of the Software and Maintenance, Support, Hosting, Training and and/or Professional Services or otherwise in connection with this Agreement to leave the employment of or terminate their relationship with Ometis.
Ometis shall not, for the duration of the Agreement and for 3 months after any termination of the Agreement directly or indirectly induce or attempt to induce any employee or consultant of the Customer who has been engaged in the provision, receipt, review or management of the Software and Maintenance, Support, Hosting, Training and/or Professional Services or otherwise in connection with this Agreement to leave the employment of or terminate their relationship with the Customer.
Background to the limits and exclusions on the Ometis’ liability. Ometis has obtained insurance cover in respect of certain aspects its own legal liability for individual claims not exceeding £10,0000 per claim for Professional Indemnity for Technology Companies and £5,000,000 of Public and Products Liability. Summaries of those policies and the cover they provide are available on request. The limits and exclusions in this clause reflect that insurance cover and the Customer is responsible for making its own arrangements for the insurance of any excess liability or in relation to any other types of loss.
Scope of this clause. Software and Maintenance are supplied to Ometis subject to Qlik’s standard licence terms and are supplied by Ometis to the Customer subject to those terms which include clauses limiting liability. When Hosting and other software are supplied to Ometis on terms that include clauses excluding or limiting the suppliers’ liability or limiting any warranties given to Ometis then Hosting and that software are supplied by Ometis to the Customer subject to those same terms.
All other services or products supplied to the Customer by Ometis are supplied subject to this term limiting Ometis’ liability.
References to liability in this clause include every kind of liability arising under or in connection with this agreement including but not limited to liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
No limitations in respect of deliberate default. Neither party may benefit from the limitations and exclusions set out in this clause in respect of any liability arising from its deliberate default.
No limitation of the Customer’s payment obligations. Nothing in this clause 16 shall limit the Customer’s payment obligations under the Agreement.
Liabilities which cannot legally be limited. Nothing in this agreement limits any liability which cannot legally be limited, including but not limited to liability for:
Cap on Ometis’ Liability
Subject to clause 16.5 (no limitations in respect of deliberate default), and clause 16.7 (liabilities which cannot legally be limited) the Ometis’ total liability to the Customer:
1. for all loss or damage covered by its insurance for Public and Products Liability is limited to £5,000,000 for each claim;
2. for all loss or damage covered by its insurance cover for Professional Indemnity for Technology Companies is limited to £10,000,000 for each claim and3. for all other loss or damage shall not exceed the Charges.
Specific heads of excluded loss
Subject to clause 16.4 (no limitations in respect of deliberate default), clause 16.7 and clause 16.6 (liabilities which cannot legally be limited), the following types of loss are specifically excluded
Types of loss wholly excluded:
Loss of profits.
Loss of sales or business.
Loss of agreements or contracts.
Loss of anticipated savings.
Loss of use or corruption of software, data or information.
Loss of or damage to goodwill.
Indirect or consequential loss.
No liability for claims not notified within twelve months. Unless the Customer notifies Ometis that it intends to make a claim in respect of an event within twelve months of the date it became or ought to have become aware of the circumstances that give rise to the claim , then Ometis shall have no liability for that claim. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
Each Party shall maintain adequate procedures under the Bribery Act 2010 and shall not engage in any activity, practice or conduct which would constitute an offence under that Act and shall impose equivalent obligations on any person associated with such Party in connection with the Agreement. Breach of this clause shall be deemed to be a material breach of the Agreement.
Severance: If any provision (or part of a provision) of the Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intentions of the Parties.
Force Majeure: Neither party shall be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this agreement if such delay or failure result from acts of God, war, insurrection, Government regulations, embargoes, strikes, labour disputes, illness, flood, fire, tempest pandemic or epidemic or any events, circumstances or causes beyond its reasonable control. In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed. If the period of delay or non-performance continues for three months, the party not affected may terminate this agreement by giving 14 days’ written notice to the affected party.
No agency between the Parties: Nothing in the Agreement shall operate to create a partnership between the Parties, or authorise either Party to act as an agent for the other, and neither Party shall have the authority to act in the name of or on behalf of or otherwise bind the other in any way.
Third party rights: Qlik and its affiliates shall be a third-party beneficiary of this Agreement with respect to the Head Licence and the Support Policy and shall be entitled to directly enforce them.
With the exception of the rights in clause 18.4 nothing in these terms and conditions shall create any rights or other benefits in favour of any person other than the Parties pursuant to the Contracts (Rights of Third Parties) Act 1999.
TUPE: The Customer warrants, represents and undertakes to Ometis that no employees, workers or staff of the Customer shall transfer to Ometis under the Transfer of Employment (Protection of Employment) Regulations 2006 (TUPE) and the Customer shall indemnify Ometis in full for and against all claims, costs, expenses or liabilities whatsoever and howsoever arising, incurred or suffered by Ometis in connection with TUPE relating to a breach if its obligations under this clause 18.7.
Assignment: Neither Party shall assign, transfer, charge or deal in any other matter with any of its rights or obligations under the Agreement.
Governing Law: 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.
Jurisdiction: The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this agreement (including non-contractual claims) or its subject matter or formation.