OVERWATCH RESEARCH – GENERAL LICENCE TERMS
1.1 This page sets out the general licence terms (General Terms) which apply to any Service which Overwatch licences or provides to any Licensee.
1.2. The parties’ agreement for the licence and use of the Services is made up of (i) the SLA; (ii) these General Terms; (iii) the Commercial Terms (excluding the SLA); and (iv) any other written document signed and agreed in writing between the parties. Together the above documents shall constitute and be known as the Agreement and apply to the contract between the parties to the exclusion of any other terms that Licensee may seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
1.3. When construing the meaning of the Agreement, the documents listed in clause 1.2 shall be interpreted in a reverse order of priority in the event of any inconsistency or conflict, with documents appearing later in the list taking priority over documents appearing earlier in the list.
1.4. These General Terms are published on Overwatch’s website. Licensee should print or save a copy of these General Terms for its records.
1.5. Any order placed by Licensee shall only be deemed to be accepted upon Overwatch’s signature of, or email agreement to, the Commercial Terms at which point, and on which date, the Agreement shall come into existence.
1.6. Overwatch may amend these General Terms from time to time as set out in clause 18.1. This version one of these General Terms was most recently updated on 18 February 2020.
1.7. The pricing in any Commercial Terms issued by Overwatch shall be valid for a period of 60 days from the date of issue, if not agreed and returned by Licensee, at which point the offer outlined in the Commercial Terms shall lapse.
2. INTERPRETATION AND DEFINITION
2.1. The definitions and rules of interpretation in this clause apply in the Agreement. Affiliate shall mean any entity that directly or indirectly controls, is controlled by, or is under common control with a party. In this context, “control” shall mean (1) ownership by one entity of greater than fifty percent (50%) of the voting equity of another entity or (2) power of one entity to direct the management or policies of another entity, by contract or otherwise. Agreement has the meaning given to it in clause 1.2.
Authorised Users means those employees, representatives, consultants of Licensee and any of its Affiliates only, who are authorised by Licensee to use the Subscription Services and its ancillary documentation for the benefit of Licensee, who shall each have unique user identifications and passwords for the Subscription Services, and for whom the Licensee has paid for subscriptions as part of the Subscription Services (as specified in the Commercial Terms). Business Day means any day which is not a Saturday, Sunday, bank or public holiday in Northern Ireland or the jurisdiction in which Licensee is registered or incorporated. Confidential Information means all confi dential information (however recorded or preserved) disclosed by a party or its Representatives to the other party and that party’s Representatives whether before or after the date of the Agreement in connection with the Agreement, including but not limited to: (a) the existence and terms of the Commercial Terms; (b) any information that would be regarded as confidential by a reasonable business person relating to: (i) the business, affairs, customers, clients, suppliers, or plans, intentions, or market opportunities of the disclosing party; and (ii) the operations, processes, product information, know-how, designs, trade secrets or software of the disclosing party; and (c) any information developed by the parties in the course of carrying out the Agreement.
Effective Date means the date specified for commencement of the Agreement in the Commercial Terms. Free Services means the Subscription Services or other services or features made available by Overwatch to Licensee during any Trial Period on a free of charge basis. General Terms has the meaning given to it in clause 1.1.
Initial Term means the initial term set out in the Commercial Terms, exclusive of any Trial Period (which shall be 12 months where no period is specifi ed).
Intellectual Property Rights means patents, utility models, rights to inventions, copyright and related rights, trademarks and service marks, trade names and domain names, goodwill, rights in get up or trade dress 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, including all applications for (and 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 subsist or will subsist, now or in the future, in any part of the world. Licensee means the licensee identified in the Commercial Terms. Licensee Data means the data, content and images inputted by Licensee and its Authorised Users when using the Subscription Services.
Licensee Equipment means a functioning desktop, laptop or tablet device with internet access, and software facilitating access to a modern internet browser, namely, Google Chrome, Mozilla Firefox, Safari, Samsung Internet or Microsoft Edge in the most recent versions (or such other versions as Overwatch indicates that it supports from time to time), respectively.
Licence Fee means the licence fee set out in the Commercial Terms. Open-Source Software: open-source software as defined by the Open Source Initiative (http://opensource.org) or the Free Software Foundation (http://www.fsf.org).
Out-of-scope Charges means the service charges for any Out-of- scope Services. Out-of-scope Services means any bespoke professional services to be provided by Overwatch to Licensee (as agreed from time to time or set out in the Commercial Terms), other than the Support Services or the Subscription Services, including, technical assistance, training and Licensee on-boarding. Overwatch means Overwatch Limited, a company incorporated in Northern Ireland under registered company number NI068866, whose registered office address is at 27-28 The Promenade, Portstewart, Northern Ireland, BT55 7AE.
Overwatch Data means all information and data that Overwatch incorporates into the Subscription Services.
Payment Terms means the payment terms for payment of the Licence Fee, Out-of-scope Charges and any other charges as agreed between the parties. If no payment terms are specified in the Commercial Terms, the default shall be that all Out-of-scope Charges may be invoiced at the end of the relevant calendar month during which they were provided and such invoices shall be payable within 30 days of demand, and that all Licence Fee shall be payable for the Initial Term and any successive Renewal Periods in full in advance.
Purpose means approved Authorised Users accessing the Subscription Services to undertake in-vivo tracking and management of pre-clinical laboratory workflows, in accordance with the Agreement, only. Renewal Period has the meaning given to it in clause 13.1. Representatives means, in relation to a party, its employees, offi cers, representatives and advisers.
Sensitive Information means credit or debit card numbers; personal financial account information; national insurance or social security numbers or equivalents; passport numbers; driver’s licence numbers or similar identifiers; passwords; details of racial or ethnic origin; physical or mental health condition or information; or other employment, financial or health information, including any information defined under relevant data protection legislation in force in the UK as ‘Sensitive Personal Data’ (or any analogous term which may apply from time to time), or any information subject to the US Health Insurance Portability and Accountability Act, the Payment Card Industry Data Security Standards, and other regulations, laws or industry standards designed to protect similar information as amended or applicable worldwide from time to time. Services means the Subscription Services, Out-of-scope Services, Support Services and any other services provided by Overwatch to Licensee from time to time.
Site means the premises from which Licensee carries out its business as notified to Overwatch in writing from time to time.
SLA means the service level agreement in respect of support and maintenance of the Subscription Services, included within the Commercial Terms.
Software means the computer program known as Overwatch and accessed via the Subscription Services at https:// app.overwatchresearch.com/login, or such other portal as Overwatch may specify from time to time.
Specification means Overwatch’s specification for the Subscription Services, available at: https://overwatchresearch.com/legal/specification
Term means the term beginning on the Effective Date, and continuing for the Initial Term, and any Renewal Periods, unless and until the Agreement is terminated in accordance with its terms. Trial Period means a free-of-charge trial licence period, if offered to Licensee in the Commercial Terms.
2.2. Clause and paragraph headings shall not affect the interpretation of the Agreement.
2.3. Unless the context otherwise requires: (a) words in the singular shall include the plural and in the plural shall include the singular; (b) a reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time; and (c) any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
2.4. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns.
2.5. References to clauses are to clauses of these General Terms, unless clearly expressed otherwise.
2.6. Where these General Terms refer to “use of”, or a “licence to”, the Software, or include any similar expression, this shall mean a licence to access the Subscription Services. Obligations relating to use of the Software shall be construed as use of the Software via the Subscription Services.
2.7. Terms defined anywhere in the Agreement shall have that meaning throughout the Agreement, unless some contrary intention is expressed.
3.1. Overwatch will make access to the Subscription Services available within 5 days of the signature of the Agreement.
4.1. In consideration of the Licence Fee paid by Licensee to Overwatch, receipt of which Overwatch hereby acknowledges, and subject to Licensee’s compliance with the terms of the Agreement, Overwatch grants a non-exclusive, non-transferable, non sub-licensable right to permit the number of Authorised Users specified in the Commercial Terms to use the Subscription Services to access the Software during the Term, solely for the Purpose.
4.2. Licensee may not use the Subscription Services other than as specified in clause 3.1 without the prior written consent of Overwatch, and Licensee acknowledges that additional fees may be payable on any change of use approved by Overwatch.
4.3. Licensee undertakes that: (a) it shall be responsible for compliance by Authorised Users (who must be aged 16 or over to use the Subscription Services) with the terms of the Agreement, and that the restrictions on Licensee set out within the Agreement shall, unless the context requires otherwise, equally apply to any such persons; (b) the number of Authorised Users shall not exceed the number specified in the Commercial Terms; (c) it will not allow or suffer any one Authorised User’s account to be used by more than one individual unless it has been reassigned in its entirety to another individual, in which case the prior individual shall no longer have any right to access or use that account; and (d) each Authorised User shall keep a secure and confidential password for their use of the Subscription Services. Licensee shall pay for broadening the scope of the licences granted under the Agreement to cover the unauthorised use, an amount equal to the fees which Overwatch would have levied (in accordance with its normal commercial terms then current) had it licensed any such unauthorised use on the date when such use commenced.
4.4. Licensee shall not: (a) other than to the extent rights to do so cannot be excluded by law, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or its documentation (as applicable) in any form or media or by any means; nor attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; (b) access all or any part of the Software in order to build a product or service which competes with the Software; (c) use the Software to provide services to third parties; (d) save as permitted under the Agreement, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Software available to any third party except the Authorised Users; (e) attempt to obtain, or assist third parties in obtaining, access to the Software, other than as provided under the Agreement; (f) interfere with or disrupt the integrity or performance of the Software or third party data contained therein; or (g) attempt to gain unauthorised access to the Software or their related systems or networks, including with a view to making alterations to, or modifications of, the whole or any part of the Software, or permitting the Software or any part of it to be combined with, or become incorporated in, any other programs.
4.5. Licensee shall not access, store, distribute or transmit any viruses, or any material during the course of its use of the Subscription Services that: (a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; (b) facilitates illegal activity; or (c) causes damage or injury to any person or property, and Overwatch reserves the right, without liability to Licensee, to disable Licensee’s access to any material that breaches the provisions of this clause.
4.6. Licensee shall not (i) use or launch any automated system, including, "robots," "spiders," or "offline readers," that sends more request messages to Overwatch’s servers in a given period of time than a human can reasonably produce in the same period by using a conventional browser; (ii) use the Subscription Services in any manner that damages, disables, overburdens, or impairs Overwatch’s websites or interferes with any other party's use of the Subscription Services; (iii) attempt to gain unauthorized access to the Subscription Services; (iv) access the Subscription Services other than through the interface provided by Overwatch; or (v) use the Subscription Services for any purpose or in any manner that is unlawful or prohibited by this Agreement.
4.7. Licensee may not use the Subscription Services if Licensee is legally prohibited from receiving or using same under the laws of the country in which Licensee are resident or from which Licensee proposes to access or use same. Licensee further agrees not to use the Subscription Services to collect, manage or process Sensitive Information. Overwatch will not accept any liability that may arise from such use.
4.8. Licensee shall use best endeavours to prevent any unauthorised access to, or use of, the Subscription Services and/or their documentation and, in the event of any such unauthorised access or use, promptly notify Overwatch.
4.9. Licensee acknowledges that it has no right to have access to the Software in source code form or in unlocked coding or with comments.
4.10. Licensee must ensure that its use of the Subscription Services and all Licensee Data is at all times compliant with the terms of the Agreement, all applicable laws and regulations (nationally and internationally) and Licensee warrants that: (i) it has obtained all necessary rights, releases and permissions to process all Licensee Data using the Subscription Services and (ii) Licensee Data and its transfer to and use by Overwatch as authorized by Licensee under the Agreement do not violate any laws (including without limitation those relating to export control and electronic communications) or rights of any third party, including without limitation any intellectual property rights, rights of privacy, or rights of publicity, and any use, collection and disclosure authorized herein is not inconsistent with the terms of any applicable privacy policies. Other than its security obligations under clause 11.4, Overwatch assumes no responsibility or liability for Licensee Data, and Licensee shall be solely responsible for Licensee Data and the consequences of using, disclosing, storing, or transmitting it, including ensuring that its use of the Subscription Services complies with relevant laws.
4.11. Each party represents and warrants to the other that it has full power and authority to enter into the Agreement, that the person signing the Agreement on its behalf is authorised to do so, and that the Agreement is binding upon it and enforceable in accordance with its terms.
4.12. Overwatch agrees to provide the Support Services to Licensee in accordance with the terms of the SLA.
4.13. Licensee shall: (a) provide Overwatch with all reasonably necessary co-operation in relation to the Agreement, and all necessary data and access to information (in a reasonably timely manner) as may be reasonably required by Overwatch to provide the Services, and (b) be responsible for procuring and maintaining its network connections and telecommunications links, and maintaining appropriate Licensee Equipment.
4.14. During the Term, and for a period of twelve (12) months thereafter, Licensee shall not, and shall not attempt to, build, develop or utilise any product or service which competes with or is substantially similar to the Software created by Overwatch. This obligation shall cease to apply only where there is no longer a commercial relationship between the parties, and Licensee can demonstrate that (a) an independent third party has licensed or sold the Software (or something similar to it) to it on arms’ length terms, and (b) such competing solutions do not incorporate or contain, are not based upon, and do not rely in any way upon any Confidential Information disclosed by Overwatch to Licensee, or to which Licensee otherwise gained access, pursuant to the Agreement or any previous contract between the parties.
5. UPGRADES AND MAINTENANCE RELEASES
5.1. Overwatch may, from time to time at its discretion, generally upgrade, amend and improve the Software as it reasonably sees fit and Licensee acknowledges that such upgrades, amendments and improvements may affect its use of the Software, subject to the terms of the SLA, provided that they shall not fundamentally change the nature of the Software, or amend any of the key functionality of the Software as outlined in the Specification.
5.2. There shall be no additional cost to Licensee as such updates (if any) are generally made available to its customers, but any specific upgrades requested by Licensee, which are technically feasible and agreed by Overwatch, will constitute Out-of-scope Services.
6. FEES AND PAYMENT
6.1. Overwatch shall invoice the Licence Fee and any other fees agreed in the Commercial Terms to Licensee in accordance with the Payment Terms.
6.2. Licensee may request Out-of-scope Services from Overwatch at any time, and Overwatch will notify Licensee that such services are outside scope at the time they are requested. Fees for such Out-of- scope Services shall be in accordance with the rates specified in the SLA. Once agreed and performed Licensee shall be invoiced for such Out-of-scope Services in accordance with the Payment Terms.
6.3. For Out-of-scope Services performed on-Site (where requested by Licensee), Licensee will reimburse Overwatch its reasonable and vouched costs for all expenses incurred in connection with the Out- of-scope Services, above and beyond the rates specified in the Commercial Terms.
6.4. All amounts and fees stated or referred to in the Agreement: (a) shall be payable in the currency denominated in the Commercial Terms; and (b) are non-cancellable and non-refundable; and (c) are exclusive of value added tax, any relevant local sales or use taxes, local taxes, applicable duties, electronic delivery taxes, excise taxes, levies and import fees (together Taxes), (if any) for which Licensee shall be responsible.
6.5. Overwatch shall invoice Licensee for the applicable Taxes (defined below), without a mark-up as a pass-through expense, collect the Taxes from Licensee and pay the Taxes due on the Subscription Services, where Overwatch is legally required to do so. Where Taxes are paid by Overwatch, Overwatch will provide an invoice showing the Taxes included. Where any Taxes are paid directly to a tax Regulatory Authority or government by Licensee, Licensee shall not deduct this amount from any amount due to Overwatch. The requirements of this provision shall not apply to any employment- related taxes, duties, income taxes or withholding and shall only apply to Taxes applicable to the Services.
6.6. If Overwatch has not received payment of any amount due and owing under the Agreement within ten (10) days after the due date, having notified Licensee of such non-payment, and without prejudice to any other rights and remedies of Overwatch: (a) Overwatch may, without liability to Licensee, disable Licensee’s and any Authorised Users’ passwords, accounts and access to all or part of the Subscription Services and suspend the provision of any other Services and Overwatch shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and (b) interest shall accrue on such due amounts at an annual rate equal to 4% over the then current base lending rate of HSBC plc at the date the relevant invoice was issued, compounded monthly, commencing on the due date and continuing until fully paid, whether before or after judgment, where Overwatch is not satisfied that Licensee has not acted reasonably and in good faith in disputing any amount due and owing. If any Subscription Services are suspended for non-payment, Overwatch may charge a re-activation fee to re-activate same.
7.1. No party shall make, or permit any person to make, any public announcement concerning the Agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
7.2. Except as necessary to perform the responsibilities under or pursuant to the Agreement, neither party shall use the trade name of the other party or any of its personnel, Affiliates or subsidiaries or their trademarks or logos in connection with any product, service, promotion or advertising without the prior written consent of the other party, provided always that Overwatch shall be free to use the then current general Licensee corporate logo, together with the generally applicable Licensee brand name, as part of a generic list of its customers included on its website and its other general marketing collateral, provided always that this shall only consist of a generic reference to Licensee as a current or past customer of Overwatch, and shall not include any further detail (including any of Licensee’s Confidential Information). Where Licensee is a member of Overwatch’s “Influencer” programme, or any similar programme which Overwatch implements from time to time, Licensee agrees and accepts that Overwatch shall be entitled to publish the agreed marketing press release, case study details and other agreed marketing materials approved between the parties on a public basis (on its website and in other Overwatch marketing collateral) in connection with the advertising and marketing of Overwatch’s Services.
8.1. Neither party shall export, directly or indirectly, any technical data acquired from the other party under the Agreement (or any products, including software, incorporating any such data) in breach of any applicable laws or regulations (Export Control Laws), including United States export laws and regulations, to any country for which the government or any agency thereof at the time of export requires an export licence or other governmental approval without first obtaining such licence or approval.
8.2. Each party undertakes: (a) contractually to oblige any third party to whom it discloses or transfers any such data or products to make an undertaking to it in similar terms to the one set out above; and (b) if requested, to provide the other party with any reasonable assistance, at the reasonable cost of the other party, to enable it to perform any activity required by any competent government or agency in any relevant jurisdiction for the purpose of compliance with any Export Control Laws.
9. OVERWATCH’S WARRANTIES
9.1. Overwatch warrants that the Subscription Services will conform in all material respects to the Specification for a period of 90 days from the date of the Agreement (Warranty Period). If, within the Warranty Period, Licensee notifies Overwatch in writing of any defect or Fault in the Subscription Services in consequence of which it fails to conform in all material respects to the Specification, and such defect or fault does not result from Licensee, or anyone acting with the authority of Licensee, having amended the Subscription Services or used it outside the terms of the Agreement for a purpose or in a context other than the purpose or context for which it was designed or in combination with any other software or hardware not provided or approved by Overwatch, or otherwise arising due to something outside Overwatch’s reasonable control, Overwatch shall, at its option, do one of the following: (a) repair the Subscription Services; (b) replace the Subscription Services; or (c) terminate the Agreement immediately by notice in writing to Licensee and provide a pro-rata refund any of the Licence Fee paid by Licensee as at the date of termination, based on the number of months remaining in the licence. The foregoing shall be subject to any limitation set out in the SLA, and provided Licensee provides all the information that may be necessary to assist Overwatch in resolving the defect or Fault, including a documented example of any defect or Fault, or sufficient information to enable Overwatch to re-create the defect or Fault, and/or remote access to the Licensee’s interface for the Subscription Services to allow Overwatch to assess same. Such correction or substitution constitutes Licensee's sole and exclusive remedy for any breach of such undertaking.
9.2. Licensee accepts responsibility for the selection of the Subscription Services to achieve its intended results and acknowledges that the Subscription Services have not been developed to meet its individual requirements.
9.3. Overwatch’s Software may from time to time feature Open-source Software and third party software components which are subject to open source and third party licence terms. Accordingly, any terms and conditions set out at https://overwatchresearch.com/legal/open-source as updated from time to time (without further notice) shall apply to Licensee’s use of the Subscription Services in addition to the provisions set out elsewhere in the Agreement. No such terms shall impose any payment obligations on Licensee. Licensee acknowledges that any Open-Source Software and third-party software provided by Overwatch is provided “as is” and expressly subject to the disclaimer in clause 9.4.
9.4. All other conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into the Agreement or any collateral contract, whether by statute, common law or otherwise, are hereby excluded, including the implied conditions, warranties or other terms as to satisfactory quality, fitness for purpose or the use of reasonable skill and care.
9.5. Licensee acknowledges and agrees that the Subscription Services are available with only limited functionality when accessed through a tablet device, and that they are not available through any mobile device.
10. LIMITS OF LIABILITY
10.1. Except as expressly stated in clause 10.2, Overwatch shall not in any circumstances have any liability for any losses or damages which may be suffered by Licensee (or any person claiming under or through Licensee), whether the same are suffered directly or indirectly or are immediate or consequential, and whether the same arise in contract, tort (including negligence) or otherwise howsoever, which fall within any of the following categories: (i) special damage even if the other party was aware of the circumstances in which such special damage could arise; (ii) loss of profits; (iii) loss of anticipated savings; (iv) loss of business opportunity; (v) loss of goodwill; (vi) loss or corruption of data, provided that this clause 10.1(a) shall not prevent claims for loss of or damage to Licensee’s tangible property that fall within the terms of clause 10.1(b) or any other claims for direct financial loss that are not excluded by any of categories (i) to (vi) inclusive of this clause 10.1(a); (a) the total liability of Overwatch, whether in contract, tort (including negligence) or otherwise and whether in connection with the Agreement or any collateral contract (excluding any breach of the Licensee’s confidentiality) shall in no circumstances exceed a sum equal to the Licence Fee paid or payable over the period of 12 months immediately preceding the date of the relevant claim; and (b) Licensee agrees that, in entering into the Agreement, either it did not rely on any representations (whether written or oral) of any kind or of any person other than those expressly set out in the Agreement or (if it did rely on any representations, whether written or oral, not expressly set out in the Agreement) that it shall have no remedy in respect of such representations and (in either case) Overwatch shall have no liability in any circumstances otherwise than in accordance with the express terms of the Agreement.
10.2. The exclusions in clause 9.5 and clause 10.1 shall apply to the fullest extent permissible at law, but nothing in the Agreement shall exclude Overwatch’s liability for: (a) death or personal injury caused by its negligence, or that of its officers, employees, contractors or agents; (b) fraud or fraudulent misrepresentation; (c) any other liability which may not be excluded by law.
10.3. All dates supplied by Overwatch under the Agreement shall be treated as approximate only and shall not be of the essence. Overwatch shall not in any circumstances be liable for any loss or damage arising from any delay beyond such approximate dates.
10.4. All references to “Overwatch” in this clause 10 shall, for the purposes of this clause, be treated as including all employees, subcontractors of Overwatch and its Affiliates, all of whom shall have the benefit of the exclusions and limitations of liability set out in this clause.
10.5. Overwatch shall have no liability to Licensee whatsoever in respect of anything arising during the Trial Period, which limitation the parties agree to be reasonable having regard to the free of charge nature of the Trial Period.
10.6. Licensee acknowledges that Overwatch does not warrant that the Software is compliant with any regulatory or legal requirements to which Licensee may be subject, and that Overwatch cannot be held responsible or liable for human error and negligent or fraudulent use of the Subscription Services.
11. INTELLECTUAL PROPERTY RIGHTS
11.1. Any Licensee Data is and shall remain the property and Confidential Information of Licensee, and it shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of such and the means by which it acquired same. This shall be provided that Overwatch shall have a lien over all Licensee Data in the event of non-payment by Licensee (as outlined in clause 6.6 and 13.7) and reserves the right to withhold Licensee’s access to any Licensee Data if and to the extent Licensee owes money to Overwatch pursuant to the Agreement.
11.2. Licensee acknowledges that all Intellectual Property Rights in the Services, Software and their documentation belong and shall belong to Overwatch, as well as in any Overwatch trademarks (word marks, picture marks or integrated marks) and associated unregistered trademarks and tradenames used by Overwatch, and Licensee shall have no rights in or to the Services other than the right to use same in accordance with the terms of the Agreement.
11.3. Overwatch encourages Licensee provide feedback on the Subscription Services or Out-of-scope Services. Licensee agree that all such feedback (to the extent it does not contain any data specifically relevant to Licensee’s business) will be non-confidential and non-proprietary and that Overwatch own all rights to use and incorporate them into the Subscription Services or Out-of-scope Services, without payment or attribution to Licensee.
11.4. Overwatch endeavour to maintain appropriate administrative, physical and technical safeguards for protection of the security, confidentiality and integrity of Licensee Data in accordance with reasonable industry standards. However, Licensee understands and acknowledges that use of the Subscription Services necessarily involves transmission of Licensee Data over networks that are not owned, operated or controlled by Overwatch, and that Overwatch cannot be held responsible for any Licensee Data lost, altered, intercepted or stored across such networks. Overwatch does not guarantee that its security procedures will be error-free, that transmissions of Licensee Data will always be secure or that unauthorized third parties will never be able to defeat Overwatch’s security measures or those of Overwatch’s third-party service providers.
11.5. Overwatch undertakes at its own expense to defend Licensee or, at its option, settle any claim or action brought against Licensee alleging that the possession or use of the Subscription Services (or any part thereof) in accordance with the terms of the Agreement infringes the UK Intellectual Property Rights of a third party (Claim) and shall be responsible for any reasonable losses, damages, costs (including legal fees) and expenses incurred by or awarded against Licensee as a result of or in connection with any such Claim. For the avoidance of doubt, this clause 11.5 shall not apply where the Claim in question is attributable to possession or use of the Subscription Services (or any part thereof) by Licensee other than in accordance with the terms of the Agreement, use of the Subscription Services in combination with any hardware or software not supplied or specified by Overwatch (if the infringement would have been avoided by the use of the Subscription Services not so combined), or use of a non-current release of the Subscription Services.
11.6. If any third party makes a Claim, or notifies an intention to make a Claim against Licensee, Overwatch’s obligations under clause 11.5 are conditional on Licensee: (a) as soon as reasonably practicable, giving written notice of the Claim to Overwatch, specifying the nature of the Claim in reasonable detail; (b) not making any admission of liability, agreement or compromise in relation to the Claim without the prior written consent of Overwatch (such consent not to be unreasonably conditioned, withheld or delayed); (c) giving Overwatch and its professional advisers access at reasonable times (on reasonable prior notice) to any relevant personnel, premises, accounts, documents and records within the power or control of Licensee, so as to enable Overwatch and its professional advisers to examine them and to take copies (at Overwatch’s expense) for the purpose of assessing the Claim; and (d) be deemed to have given to Overwatch sole authority to avoid, dispute, compromise or defend the Claim, provided that Licensee shall be permitted to participate in any Claim by appointing a counsel of its own choosing and at its own expense, and that Overwatch shall have all reasonable and due regard to the representations of Licensee or its counsel in the conduct of any such defence.
11.7. If any Claim is made, or in Overwatch’s reasonable opinion is likely to be made, against Licensee, Overwatch may at its sole option and expense: (a) procure for Licensee the right to continue to use the Subscription Services (or any part thereof) in accordance with the terms of the Agreement; (b) modify the Subscription Services so that it ceases to be infringing; (c) replace the Subscription Services with non-infringing Services; or (d) terminate the Agreement immediately by notice in writing to Licensee and provide a pro-rata refund of the Licence Fees paid by Licensee as at the date of termination based on the number of months remaining in the licence, if applicable on return of the Subscription Services and all copies thereof, provided that if Overwatch modifies or replaces the Subscription Services, the modified or replacement Services must comply with the warranties contained in clause 9.1 and Licensee shall have the same rights in respect thereof as it would have had under those clauses had the references to the date of the Agreement been references to the date on which such modification or replacement was made.
11.8. Notwithstanding any other provision in the Agreement, clause 11.5 shall not apply to the extent that any claim or action referred to in that clause arises directly or indirectly through the possession or use of any third-party software or through the breach of any third- party additional terms by Licensee.
11.9. This clause 11 constitutes Licensee’s exclusive remedy and Overwatch’s only liability in respect of Claims and, for the avoidance of doubt, is subject to clause 10.1.
12.1. The provisions of this clause shall not apply to any Confidential Information that: is or becomes generally available to the public (other than as a result of its disclosure by the receiving party or its Representatives in breach of this clause); (c) was available to the receiving party on a non-confidential basis before disclosure by the disclosing party; (d) was, is or becomes available to the receiving party on a non-confidential basis from a person who, to the receiving party’s knowledge, is not bound by a confidentiality agreement with the disclosing party or otherwise prohibited from disclosing the information to the receiving party; or (e) is developed by or for the receiving party independently of the information disclosed by the disclosing party, as evidenced by written records (where applicable and reasonably available).
12.2. Each party shall keep the other party’s Confidential Information confidential and shall not: (a) use such Confidential Information except for the purpose of exercising or performing its rights and obligations under or in connection with the Agreement (Permitted Purpose); or (b) disclose such Confidential Information in whole or in part to any third party, except as expressly permitted by this clause 12.
12.3. A party may disclose the other party’s Confidential Information to those of its Representatives who need to know such Confidential Information for the Permitted Purpose and who shall be bound in writing to observe terms of confidentiality substantially similar to those obligations of confidentiality contained in this clause, provided that: (a) it informs such Representatives of the confidential nature of the Confidential Information before disclosure; and (b) at all times, it is responsible for such Representatives’ compliance with the confidentiality obligations set out in this clause.
12.4. A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction provided that, to the extent it is legally permitted to do so, the receiving party (a) has given prompt advance written notice, if permissible and reasonable under the circumstances, of such requirement to disclosing party, and (b) has reasonably cooperated with disclosing party to pursue reasonable legal remedies to object to such disclosure and/or to maintain the Confidential Information in confidence.
12.5. A party assigning any or all of its rights under the Agreement may disclose to a proposed assignee any information in its possession that relates to the Agreement or its subject matter, the negotiations relating to it and the other party which is necessary to disclose for the purposes of the proposed assignment, provided such disclosures are made subject to obligations of confidentiality, and that the party proposing to disclose is responsible and liable for adherence to same by the party to whom it is disclosing such Confidential Information.
12.6. Each party reserves all rights in its Confidential Information. No rights or obligations in respect of a party’s Confidential Information other than those expressly stated in the Agreement are granted to the other party, or to be implied from the Agreement.
12.7. On termination or expiry of the Agreement, subject to clause 13.7, each party shall: (a) destroy or return to the other party all documents and materials (and any copies) containing, reflecting, incorporating or based on the other party’s Confidential Information; (b) erase all the other party’s Confidential Information from computer and communications systems and devices used by it, including such systems and data storage services provided by third parties (to the extent technically and legally practicable); and (c) upon request, certify in writing to the other party that it has complied with the requirements of this clause, provided that a recipient party may retain documents and materials containing, reflecting, incorporating or based on the other party’s Confidential Information to the extent required by law or any applicable governmental or regulatory authority. The provisions of this clause shall continue to apply to any such documents and materials retained by a recipient party.
13. DURATION AND TERMINATION
13.1. The Agreement shall commence on the Effective Date and shall continue for the Initial Term, unless terminated earlier in accordance with its terms. The Agreement shall automatically renew for successive periods of 12 months (each a Renewal Period) after expiry of the Initial Term unless and until either party provides the other with no less than 60 days’ written notice prior to the expiry of the then current Initial Term or Renewal Period (as the case may be) that it wishes to terminate the Agreement. If Overwatch proposes to increase the Licence Fee for any subsequent Renewal Period, it shall provide notice of the proposed increase of the Licence Fee no later than 70 days prior to the expiry of the Initial Term or the then current Renewal Period (as the case may be). Such increase will be deemed to have been accepted by Licensee unless Licensee provides written notice to Overwatch that it wishes to renegotiate the Licence Fee (in which case the Licence Fee shall be agreed by mutual agreement of the parties) no later than 10 days after receiving the revised Licence Fee quotation. The Initial Term and any subsequent Renewal Periods shall be together known as the Term.
13.2. Without affecting any other right or remedy available to it, either party may terminate the Agreement with immediate effect by giving written notice to the other party if: (a) the other party fails to pay any amount due under the Agreement on the due date for payment and remains in default not less than 21 days after being notified in writing to make such payment; (b) the other party commits a material breach of any other term of the Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified to do so; (c) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of Article 103 of the Insolvency (Northern Ireland) Order 1989; (d) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party; (e ) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party; (f) an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party; (g) the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver; (h) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party; (i) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within 14 days; (j) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 13.1(c) to clause 13.1(l) (inclusive); (k) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or (l) there is a change of control of the other party (within the meaning of section 1124 of the Corporation Tax Act 2010).
13.3. If Licensee’s website, or use of, the Subscription Services: (i) is being subjected to denial of service attacks or other disruptive activity, (ii) is being used to engage in denial of service attacks or other disruptive activity, (iii) is creating a security vulnerability for the Subscription Services or others, (iv) is consuming excessive bandwidth, or (v) is causing harm to Overwatch or others, then Overwatch may, with electronic or telephone notice to Licensee, suspend all or any access to the Subscription Services. Overwatch will try to limit the suspension to the affected portion of the Subscription Services and promptly resolve the issues causing the suspension of the Subscription Services. Nothing in this clause limits Overwatch’s right to terminate for cause as set out in clause 13.2 above, if applicable.
13.4. Where Licensee is offered a Trial Period in the Commercial Terms, Licensee shall be entitled to terminate the Trial Period at any time. Licensee makes no commitment to purchase Subscription Services from Overwatch by availing of any Free Services (unless otherwise agreed in the Commercial Terms). Overwatch may suspend, limit, or terminate the Trial Period and any Free Services for any reason at any time without notice.
13.5. Termination or expiry of the Agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination or expiry.
13.6. On expiry or termination of the Agreement for any reason: (a) the Licensee’s right to access or use the Subscription Services (save as provided in sub-clause (d) below) and any Overwatch Confidential Information shall immediately cease; (b) Overwatch may offer Licensee Free Services for a time limited period, in which case the Agreement shall continue to apply (but subject to the provisions around such Free Services) and Licensee’s Authorised User accounts shall remain open (subject always to Overwatch’s right to cancel or close same, and withdraw the offer of Free Services at any time); (b) Licensee shall return or destroy any Overwatch Confidential Information; and (c) the accrued rights of the parties as at expiry or termination, or the continuation after expiry or termination of any provision expressly stated to survive (including, without limitation, clauses 1, 2, 4.14, 6, 7, 10, 11, 12, 13.5, 13.6 and 14 to 24 (inclusive)) or implicitly surviving termination, shall not be affected or prejudiced; (d) as long as Licensee has paid all fees owed to Overwatch, if Licensee makes a written request within thirty (30) days after termination or expiration the Agreement, Overwatch will provide Licensee with temporary access to the Subscription Services to retrieve all Licensee Data then in Overwatch’s possession or control, for no longer than five (5) days. If Overwatch provide Licensee with temporary access to the account, Overwatch may charge a re-activation fee. Overwatch may withhold access to Licensee Data until Licensee pay any fees owed to Overwatch. Thirty (30) days after termination or expiration of Licensee’s Subscription (as extended by Overwatch at its sole discretion), Overwatch will have no obligation to maintain or provide Licensee the Licensee Data and may, unless legally prohibited, delete all Licensee Data in Overwatch’s systems or otherwise in Overwatch’s control; and (e) if Licensee has terminated the Agreement for cause, Overwatch will promptly refund any prepaid but unused fees covering use of the Subscription Services after termination. If Overwatch has terminated the Agreement for cause, Licensee will promptly pay all unpaid fees due through the end of the Subscription Term. Fees are otherwise non-refundable.
14. ASSIGNMENT AND OTHER DEALINGS
14.1. The Agreement is personal to the parties and neither party shall assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Agreement without prior written consent of the other party except (a) to any Affiliate (and then only on the basis that such Affiliate has a credit rating as strong as that of the transferring party), or (b) as incident to the merger, consolidation, reorganization or acquisition of stock or assets or similar transaction relating to all or substantially all of the assets or a majority of the voting power of party's business. In the event of any assignment permitted under this provision, the assigning party shall provide the other party with reasonably prompt written notice of such assignment. The Agreement shall be binding on and shall benefit any and all successors, trustees, permitted assigns and other successors in interest of the parties.
No failure or delay by a party to exercise any right or remedy provided under the Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
Except as expressly provided in the Agreement, the rights and remedies provided under the Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
17. ENTIRE AGREEMENT AND COUNTERPARTS
17.1. The Agreement contains the whole agreement between the parties relating to the subject matter hereof and supersede all prior agreements, arrangements and understandings between the parties relating to that subject matter. Any additional or conflicting terms on any Overwatch invoice, or any Licensee purchase order or other document shall not apply.
17.2. Each party acknowledges that, in entering into the Agreement, it does not rely on any statement, representation, assurance or warranty (whether it was made negligently or innocently) of any person (whether a party to the Agreement or not) other than as expressly set out in the Agreement. Each party agrees that the only rights and remedies available to it arising out of or in connection with any such representation shall be for breach of contract. Overwatch’s obligations are not contingent on the delivery of any future functionality or features of the Subscription Services or dependent on any oral or written public comments made by Overwatch regarding future functionality or features of the Subscription Services.
17.3. The Commercial Terms may be executed in any number of counterparts, each of which will be considered an original, but all of which together will constitute the same agreement. The exchange of an executed Commercial Terms document (in counterparts or otherwise) by electronic transmission shall be sufficient to bind the parties to the terms and conditions of the Agreement.
18.1. Overwatch may update and change any part or all of these General Terms (other than those relating to fees and charges) at any time. If Overwatch update or change these General Terms or any other document comprising part of the Agreement, and the updated General Terms or constituent document will be posted at the URL at which Licensee originally accessed it and Overwatch will let Licensee know via email or through a pop up notification when using the Software. The updated document will become effective and binding within seven (7) days after notice of any update is so given. When Overwatch change any document, the "Last Updated" date and version reference in the relevant document (e.g. clause 1.6 of these General Terms) will be updated to reflect the date of the most recent version. Overwatch encourage Licensee to review the documents forming part of the Agreement periodically. If Licensee does not agree with a modification, Licensee must notify Overwatch in writing within seven (7) days after receiving notice of modification. If Licensee give Overwatch this notice, Licensee’s subscription will continue to be governed by the terms and conditions of the Agreement prior to modification for the remainder of Licensee’s current term. Upon renewal, the amended terms published by Overwatch will apply. This clause shall not apply where the parties have negotiated bespoke terms for licensing and provision of the Services.
18.2. Save as outlined in clause 18.1, no variation of the Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
19.1. If any provision or part-provision of the Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Agreement.
19.2. If any provision or part-provision of the Agreement is deemed deleted under clause 18.1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
20.1. Any notice given to a party under or in connection with the Agreement shall be in writing and shall be delivered: (a) by email (to the email address specified in the Commercial Terms in respect of the Licensee, or to [email protected] in the case of Overwatch; or (b) hand or by pre-paid first-class post or other next working day delivery service at the relevant party’s registered office (if a company) or its principal place of business (in any other case).
20.2. Any notice shall be deemed to have been received: (a) if delivered by hand, on signature of a delivery receipt; (b) if sent by next working day delivery service, at 9.00 am GMT on the second business day after posting or at the time recorded by the delivery service; or (c) if sent by email, at the time of transmission.
20.3. This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.
21. THIRD-PARTY RIGHTS
A person who is not a party to the Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Agreement, but this does not affect any right or remedy of a third party which exists, or is available, apart from that Act.
22. GOVERNING LAW, LANGUAGE AND JURISDICTION
22.1. Each party irrevocably agrees that the courts of Northern Ireland shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Agreement or its subject matter or formation (including non-contractual disputes or claims) and that the Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of Northern Ireland.
22.2. Overwatch might make versions of the Agreement available in languages other than English. If Overwatch do, the English version of the Agreement will govern Overwatch’s relationship and the translated version is provided for convenience only and will not be interpreted to modify the English version of this Agreement.
22.3. The Agreement is a contract for the provision of services and not a contract for the sale of goods. Where Licensee is based in the USA the provisions of the Uniform Commercial Code (UCC), the Uniform Computer Information Transaction Act (UCITA), or any substantially similar legislation as may be enacted, shall not apply to this Agreement. If Licensee is based outside the USA, the parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not govern the Agreement or the rights and obligations of the parties under it.
23. NO PARTNERSHIP OR AGENCY
23.1. Nothing in the Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
24. FORCE MAJEURE
Neither party shall be in breach of the Agreement nor liable for delay in performing, or failure to perform, any of its obligations under the Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control, including strikes, lock-outs or other industrial disputes, failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub- contractors. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for 90 days, the party not affected may terminate the Agreement by giving 30 days’ written notice to the affected party.