1. SUPPLIER SERVICES
1.1 Equipment and operations:
(a) Subject to Clause 2.3, the Supplier shall carry out the Works at the Premises and ensure that the Equipment continues to be operational and compliant with applicable Law.
(b) The Supplier shall use reasonable endeavours to ensure that the Client’s plant and equipment at the Premises which does not need to be used or accessed in connection with the Locational Services is not interfered with by the Supplier or any Subcontractors.
1.2 Regulatory Compliance: In respect of the Works, the Supplier will adhere to (and will procure that its Subcontractors adhere to) all applicable Laws, any reasonable health and safety policies for the Premises notified to it in advance by the Supplier, and electricity and other codes and engineering recommendations.
1.3 Client’s option to carry out Works:
(a) The Client shall be entitled to notify the Supplier that it wishes to carry out the Works. In that event, the Client shall ensure that the Works are carried out by a contractor approved by the Supplier (whose approval shall not be unreasonably withheld). All such Works shall be executed at the risk and cost of the Client and the Supplier shall not be liable for any defect of deficiency in the Locational Services or to the Premises or anything in the Premises to the extent that it results from:
(i) defective materials or equipment furnished by the contractor engaged by the Client for performance of the Works; and/or
(ii) the negligent performance by such contractor in carrying out the Works; and/or
(iii) the Works being other than in conformance in all material respects with the Supplier’s or its contractors’ written specifications, manuals or instructions (as provided to the Client).
(b) If the Supplier considers that a defect or deficiency in the Works is attributable to any cause set out in Clause 2.3(a), the Supplier shall promptly give a notice to the Client and the Client shall be entitled to rectify, or procure the rectification of, the defect or deficiency either through its own contractor or a contractor appointed by the Supplier. Such rectification shall be carried out at the Client’s cost. If the Client fails to carry out such rectification, the Supplier shall, at its option, either:
(i) notify the Client of the reduction in the level of its obligations that will be applicable in respect of the Services; or
(ii) carry out the rectification work that it reasonably considers is required and recharge the cost to the Client who shall pay such amount (together with applicable taxes) within ten (10) Business Days of a demand.
2. CLIENT OBLIGATIONS
2.1 Notification of events: The Client agrees to notify the Supplier as soon as reasonably possible of any circumstance which could affect the ability of the Equipment to collect data.
2.2 Access and assistance: The Client agrees to allow the Supplier and its Subcontractors to access any relevant parts of the Premises during working hours for all purposes in connection with the Works and provide reasonable assistance as occupier of the Premises during the Works, including providing such information and completing such documents, declarations and applications as are reasonably required by the Supplier and its Subcontractors in relation to the Works and/or Locational Services.
2.3 Exclusivity: Save where expressly agreed between the Client and the Supplier in writing, the Client shall not enter into any contractual obligations with any person to the extent such activity would adversely affect the ability of the Supplier to provide the Locational Services.
2.4 Hazardous Substances: The Client shall ensure that there are no Hazardous Substances at the Premises in circumstances which would present a risk to the health and safety of any representative of the Supplier during the course of the Works or the Locational Services.
2.5 Meter Readings: Where the Supplier installs a meter at the Premises for the purposes of the Locational Services, the Supplier shall ensure that the meter installed is capable of giving the Supplier minute by minute meter readings for each Premises in real time and the Client agrees that such information can be accessed by the Supplier throughout the period of the Locational Services.
2.6 Equipment:
(a) Title to all Equipment installed on the Premises shall remain with the Supplier (or where applicable its Subcontractor) notwithstanding their installation at the Premises.
(b) The Client shall not to attempt to adopt, take ownership of, dispose of, access, interfere with, attempt to reverse engineer or otherwise tamper with the Equipment nor purport to authorise others to do so at any time whatsoever and the Client agrees to indemnify the Supplier for any damage to property, loss (including loss of profit), penalties or costs arising or suffered by the Supplier or any Subcontractor arising out of breach by the Client of this provision.
(c) In case of termination of this Agreement, the Client shall allow the Supplier or its Subcontractor to remove the Equipment by or after the termination date.
3. DATA PROTECTION
3.1 Definitions:
(a) Agreed Purposes: any personal data to be held only for the performance by each Party of its obligations under this Agreement, and the promotion of the Locational Services and/or the Software Support Services.
(b) Controller, data controller, processor, data processor, data subject, personal data, processing and appropriate technical and organisational measures: as set out in the Data Protection Legislation in force at the time.
(c) Data Protection Legislation: all legislation and regulatory requirements in force from time to time relating to the use of personal data and the privacy of electronic communications, including, without limitation (i) any data protection legislation from time to time in force in the UK including the Data Protection Act 2018 or any successor legislation, as well as (ii) the General Data Protection Regulation ((EU) 2016/679) (GDPR) and any other directly applicable European Union regulation relating to data protection and privacy (for so long as and to the extent that the law of the European Union has legal effect in the UK).
(d) Permitted Recipients: The Parties to this Agreement, the employees of each Party, any third parties engaged to perform obligations in connection with this Agreement, and their solicitors.
(e) Shared Personal Data: the personal data to be shared between the Parties under this Agreement. Shared Personal Data shall be confined to the following categories of information relevant to the following categories of data subject:
Name and Contact Details
Any information that identifies any person.
3.2 Shared Personal Data: The provisions which follow set out the framework for the sharing of personal data between the Parties as data controllers. Each Party acknowledges that one Party (the Data Discloser) will regularly disclose to the other Party (the Data Recipient) Shared Personal Data collected by the Data Discloser for the Agreed Purposes. Each Party shall:
(a) ensure that it has all necessary consents and notices in place to enable lawful transfer of the Shared Personal Data to the Data Recipient for the Agreed Purposes;
(b) give full information to any data subject whose personal data may be processed under this Agreement of the nature such processing. This includes giving notice that, on the termination of this Agreement, personal data relating to them may be retained by or, as the case may be, transferred to one or more of the Data Recipients, their successors and assigns;
(c) process the Shared Personal Data only for the Agreed Purposes;
(d) not disclose or allow access to the Shared Personal Data to anyone other than the Permitted Recipients;
(e) ensure that all Permitted Recipients are subject to written contractual obligations concerning the Shared Personal Data (including obligations of confidentiality) which are no less demanding than those imposed by this Agreement;
(f) ensure that it has in place appropriate technical and organisational measures, , to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data; and
(g) not transfer any personal data received from the Data Discloser outside the UK unless the transferor ensures that (i) the transfer is to a country approved under the applicable Data Protection Legislation as providing adequate protection; or (ii) there are appropriate safeguards or binding corporate rules in place pursuant to the applicable Data Protection Legislation; or (iii) the transferor otherwise complies with its obligations under the applicable Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; or (iv) one of the derogations for specific situations in the applicable Data Protection Legislation applies to the transfer.
3.3 Compliance: Each Party shall comply with the Data Protection Legislation and agrees that any material breach of the Data Protection Legislation shall, if not remedied within 30 days of written notice from the other Party, give grounds to the other Party to terminate this Agreement with immediate effect.
3.4 Mutual assistance: Each Party shall assist the other in complying with all applicable requirements of the Data Protection Legislation. In particular, each Party shall:
(a) consult with the other Party about any notices given to data subjects in relation to the Shared Personal Data;
(b) promptly inform the other Party about the receipt of any data subject access request;
(c) provide the other Party with reasonable assistance in complying with any data subject access request;
(d) not disclose or release any Shared Personal Data in response to a data subject access request without first consulting with and obtaining the consent of the other Party.
(e) assist the other Party, at the cost of the other Party, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(f) notify the other Party without undue delay on becoming aware of any breach of the Data Protection Legislation;
(g) at the written direction of the Data Discloser, delete or return Shared Personal Data and copies thereof to the Data Discloser on termination of this Agreement unless required by law to store the personal data.
3.5 Anonymised data: The Supplier shall be entitled to anonymise personal data obtained in the course of performance of the Locational Services and/or Software Services and to sell to third parties or otherwise deal with, as it sees fit, such anonymised data.
4. PAYMENT
4.1 Payment Mechanism: Payment for the Locational Services and the Software Services shall be as set out in the Form.
4.2 Late payment: The Supplier may charge interest on any amount which has not been paid by its due date. Such interest shall accrue on a daily basis at the rate of 4% above the base lending rate of the Bank of England from time to time in force.
4.3 VAT on invoices: Where registered for VAT, the invoicing Party will show any applicable VAT separately on its invoices. All quoted sums and rates given under the Agreement are unless expressly stated otherwise, stated exclusive of VAT which shall be payable in addition (where applicable) at the appropriate rate.
5. APPOINTMENT OF SUBCONTRACTORS
5.1 Supplier’s right to appoint Subcontractors: The Client acknowledges and agrees that the Supplier may engage Subcontractors to provide all or part of the Works to enable the provision of the Locational Services.
6. SUBSCRIPTION TO OAK PLATFORM
6.1 Grant of licence: Subject to the Client purchasing the User Subscriptions, the restrictions set out in this Clause 7 and the other terms and conditions of this Agreement, the Supplier hereby grants to the Client a non-exclusive, non-transferable right, without the right to grant sublicences, to permit the Authorised Users to use the Software Services and the Documentation during the Service Period solely for the Client’s internal business operations.
6.2 Client’s undertaking: In relation to the Authorised Users, the Client undertakes that:
(a) the maximum number of Authorised Users that it authorises to access and use the Software Services and the Documentation shall not exceed the number of User Subscriptions it has purchased from time to time;
(b) it will not allow or suffer any User Subscription to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access or use the Software Services and/or Documentation;
(c) each Authorised User shall keep a secure password for their use of the Software Services and Documentation, that such password shall be changed no less frequently than 12 months and that each Authorised User shall keep their password confidential;
(d) it shall maintain a written, up to date list of current Authorised Users and provide such list to the Supplier within 5 Business Days of the Supplier’s written request at any time or times;
(e) it shall permit the Supplier or the Supplier’s designated auditor to audit the Software Services in order to establish the name and password of each Authorised User and the Client’s data processing facilities to audit compliance with this Agreement. Each such audit may be conducted no more than once per quarter, at the Supplier’s expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Client’s normal conduct of business;
(f) if any of the audits referred to in Clause 7.2(e) reveal that any password has been provided to any individual who is not an Authorised User, then without prejudice to the Supplier’s other rights, the Client shall promptly disable such passwords and the Supplier shall not issue any new passwords to any such individual.
6.3 Viruses: The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Software Services that:
(a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
(b) facilitates illegal activity;
(c) depicts sexually explicit images;
(d) promotes unlawful violence;
(e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
(f) is otherwise illegal or causes damage or injury to any person or property;
and the Supplier reserves the right, without liability or prejudice to its other rights to the Client, to disable the Client’s access to any material that breaches the provisions of this clause.
6.4 Restrictions: The Client shall not:
(a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the Parties and except to the extent expressly permitted under this Agreement:
(i) 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 Documentation (as applicable) in any form or media or by any means; or
(ii) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
(b) access all or any part of the Software Services and Documentation in order to build a product or service which competes with the Software Services and/or the Documentation; or
(c) use the Software Services and/or Documentation to provide services to third parties; or
(d) except as expressly permitted under this Agreement, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Software Services and/or Documentation available to any third Party except the Authorised Users, or
(e) attempt to obtain, or assist third parties in obtaining, access to the Software Services and/or Documentation, other than as provided under this Clause 7; or
(f) introduce or permit the introduction of, any Virus or Vulnerability into the Supplier’s network and information systems.
6.5 Unauthorised access and use: The Client shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Software Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify the Supplier.
6.6 Rights limited to Client: The rights provided under this Clause 7 are granted to the Client only and shall not be considered granted to any group member of the Client.
6.7 Additional User Subscriptions: The Client may, from time to time during the Service Period, purchase additional User Subscriptions and the Supplier shall grant access to the Software Services and the Documentation to such additional Authorised Users in accordance with the provisions of this Agreement.
6.8 Client’s notifications: If the Client wishes to purchase additional User Subscriptions, the Client shall notify the Supplier in writing. The Supplier shall evaluate such request for additional User Subscriptions and respond to the Client with approval or rejection of the request (such approval not to be unreasonably withheld). Where the Supplier approves the request, the Supplier shall activate the additional User Subscriptions within [7] days of its approval of the Client’s request.
6.9 Client’s payment obligations: If the Supplier approves the Client’s request to purchase additional User Subscriptions, the Client shall, within 30 days of the date of the Supplier’s invoice, pay to the Supplier the relevant fees for such additional User Subscriptions and, if such additional User Subscriptions are purchased by the Client part way through the Service Period or any Renewal Service Period (as defined in Clause 12.2) (as applicable), such fees shall be pro-rated from the date of activation by the Supplier for the remainder of the Service Period or then current Renewal Period (as applicable).
6.10 Availability of Software Services: The Supplier shall use commercially reasonable endeavours to make the Software Services available 24 hours a day, seven days a week, except for:
(a) planned maintenance carried out during the maintenance window of [1.30 am to 7.30 am UK time]; and
(b) unscheduled maintenance performed outside Normal Business Hours, provided that the Supplier has used reasonable endeavours to give the Client at least [[6] Normal Business Hours’] notice in advance.
6.11 Support services: The Supplier will, as part of the Software Services, provide the Client with the Supplier’s standard customer support services during Normal Business Hours in accordance with the Supplier’s Support Services Policy in effect at the time that the Software Services are provided. The Supplier may amend the Support Services Policy in its sole and absolute discretion from time to time. The Client may purchase enhanced support services separately at the Supplier’s then current rates.
6.12 Third party products and services: The Client acknowledges that the Software Services may enable or assist it to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites and that it does so solely at its own risk. The Supplier makes no representation, warranty or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by the Client, with any such third party. Any contract entered into and any transaction completed via any third-party website is between the Client and the relevant third party, and not the Supplier. The Supplier recommends that the Client refers to the third party’s website terms and conditions and privacy policy prior to using the relevant third-party website. The Supplier does not endorse or approve any third-party website nor the content of any of the third-party website made available via the Software Services.
6.13 Limitations: The Supplier:
(a) does not warrant that:
(i) the Customer’s use of the Software Services will be uninterrupted or error-free; or
(ii) the Software or the Software Services will be free from Vulnerabilities or Viruses;
(b) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Client acknowledges that the Software Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
6.14 Third party agreements: This Agreement shall not prevent the Supplier from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this Agreement.
6.15 Supplier warranties: The Supplier warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this Agreement relating to the Software Services.
6.16 Archiving: The Supplier shall follow its archiving procedures for Client Data as set out in its Back-Up Policy available at https://oak-network.com/backup-data-retention-policy or such other website address as may be notified to the Client from time to time, as such document may be amended by the Supplier in its sole discretion from time to time. In the event of any loss or damage to Client Data, the Client’s sole and exclusive remedy against the Supplier shall be for the Supplier to use reasonable commercial endeavours to restore the lost or damaged Client Data from the latest back-up of such Client Data maintained by the Supplier in accordance with the archiving procedure described in its Back-Up Policy. The Supplier shall not be responsible for any loss, destruction, alteration or disclosure of Client Data caused by any third party (except those third parties sub-contracted by the Supplier to perform services related to Client Data maintenance and back-up for which it shall remain fully liable.
6.17 Client’s obligations: The Client shall:
(a) provide the Supplier with all necessary co-operation and all necessary access to such information as may be required by the Supplier in order to provide the Software Services, including but not limited to Client Data, security access information and configuration services;
(b) carry out all other responsibilities set out in this Agreement in a timely and efficient manner;
(c) ensure that the Authorised Users use the Software Services and the Documentation in accordance with the terms and conditions of this Agreement and shall be responsible for any Authorised User’s breach of this Agreement;
(d) obtain and shall maintain all necessary licences, consents, and permissions necessary for the Supplier, its contractors and agents to provide the Software Services;
(e) ensure that its network and systems comply with the relevant specifications provided by the Supplier from time to time; and
(f) be, to the extent permitted by law and except as otherwise expressly provided in this Agreement, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to the Supplier’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Client’s network connections or telecommunications links or caused by the internet.
6.18 Delays: In the event of any delays in the Client’s provision of such assistance as agreed by the parties, the Supplier may adjust any agreed timetable or delivery schedule as reasonably necessary.
6.19 Client Data: The Client shall own all right, title and interest in and to all of the Client Data that is not personal data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Client Data.
6.20 Liabilities and warranties: Except as expressly and specifically provided in this Agreement:
(a) the Client assumes sole responsibility for results obtained from the use of the Software Services and the Documentation by the Client, and for conclusions drawn from such use. The Supplier shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Supplier by the Client in connection with the Software Services, or any actions taken by the Supplier at the Client’s direction;
(b) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement; and
(c) the Software Services and the Documentation are provided to the Client on an “as is” basis.
7. INTELLECTUAL PROPERTY
7.1 IPR owned by Supplier: As between the Client and the Supplier, all Intellectual Property Rights and all other rights in the assets provided or developed by (or on behalf of) the Supplier under this Agreement (including the Software Services and the Documentation)_shall be owned by the Supplier. Except as referred to in Clause 7.1, the Supplier shall not be deemed to have granted, or agreed to grant a licence (or any other right) to the Client, in respect of any of its Intellectual Property Rights by any term of this Agreement.
7.2 Supplier’s confirmation: The Supplier confirms that it has all the rights in relation to the Software Services and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this Agreement.
8. CONFIDENTIALITY
8.1 Parties’ obligations: This Agreement and its subject matter shall remain confidential between the Parties and the provisions of this Clause 9.1 shall survive any termination of this Agreement. Neither Party shall without the other’s prior written consent (save as is necessary to enable it to perform this Agreement) use confidential information in any medium whatsoever relating to the other’s business or affairs, or disclose it to any third party except to Third Parties, the disclosing Party’s own professional representatives, contractors, funders or advisers on a confidential basis or as required by Law.
9. FORCE MAJEURE
9.1 Meaning of Force Majeure Event: Force Majeure Event shall mean any event beyond the reasonable control of the Party seeking to rely on it and which is unavoidable including, but not limited to, the following events: epidemics, storms, floods, hurricanes, tempest, acts of God, state or public enemy, wars, revolutions, uprisings, hostilities, civil disturbances, blockades, embargoes, government restraints or similar disruptions or interferences with trade, riots, civil war, insurrection, invasion, explosions, fires and, in the case of the Supplier, any such event which is affecting a Subcontractor’s ability to provide the Works. Strikes, lockouts and shutdowns of a Party or any of its Group (or of any person engaged by any of them) shall not be a Force Majeure Event for that Party.
9.2 Effect of Force Majeure Event: Neither Party shall in any circumstances be liable to the other Party for any delay or non-performance of its obligations under this Agreement to the extent that such delay or non-performance is due to a Force Majeure Event. The date for performance of any affected obligations will be suspended for a period equal to the delay caused by the Force Majeure Event.
9.3 Notification: If a Party is delayed in or prevented from performing its obligations under this Agreement by a Force Majeure Event, such Party shall give notice in writing of such delay or prevention to the other Party specifying the nature and extent of the Force Majeure Event immediately on becoming aware of it and use all reasonable endeavours to mitigate the effects of the Force Majeure Event on the performance of its obligations under this Agreement.
10. LIABILITY
10.1 Purpose: This Clause 11 sets out each Party’s entire financial liability (including any liability for the acts or omissions of employees, agents and Subcontractors) to the other Party in respect of any breach of this Agreement, any use made of all or part of the Locational Services and any representation, statement, act or omission (including negligence) arising under or in connection with this Agreement.
10.2 Limit of liability: The Supplier’s total liability arising out of or in connection with this Agreement whether arising in contract, (including negligence), misrepresentation, breach of statutory duty or otherwise shall be limited to £10,000.
10.3 Exclusions: Without prejudice to Clauses 11.5, the Supplier shall be under no liability in respect of:
(a) any defect in the Locational Services arising from reliance on any information supplied by the Client; and/or
(b) any loss or damage arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure by the Client to follow the instructions (whether oral or in writing) of the Supplier or any Subcontractor and/or any misuse, alteration or repair of any Equipment without the Supplier’s prior approval; and/or
(c) any adverse effects of temperature, humidity and ventilation conditions created by installation and operation of the Equipment at the Premises.
10.4 Client’s acknowledgement: The Client acknowledges that the Supplier and its Subcontractors will have access to electrical appliances at the Premises in order to optimise savings on energy consumption. The Client acknowledges that the Supplier shall rely on information provided by the Client regarding perishable and non-perishable contents contained in the Client’s appliances at the Premises and the Client agrees and acknowledges that the Supplier shall not be liable for any loss or damage to perishable items.
10.5 Consequential loss etc: Subject to Clause 11.6, the Supplier shall not be liable to the Client for any reason whatsoever (contractual or non-contractual), for loss of profit, loss of revenue, loss of use, loss of contracts or for any indirect, economic, special or consequential loss or damage, costs, expenses or other claims for compensation whatsoever which arise out of or in connection with this Agreement or the use of the Locational Services by the Client.
10.6 Matters not excluded: Nothing in the Agreement limits or excludes liability for:
(a) wilful default (being any act or failure to act by a Party which was intended to cause a breach of that Party’s obligations under this Agreement or which was in reckless disregard or wanton indifference to such obligations):
(b) fraud (including fraudulent misrepresentation); and/or
(c) anything for which a Party cannot limit or exclude or attempt to limit or exclude its liability under applicable Law;
10.7 Processing of data: The Supplier will collect and process data from Equipment as part of providing the Locational Services and may inform the Client of any matters of concern. Any such information is provided in good faith and the Supplier accepts no liability for any consequences or losses suffered by the Client in any way connected with the supply or failure to supply such information.
10.8 Insurance: During the Service Period, each Party shall maintain in force, with a reputable insurance company, public liability insurance in an amount not less than £5 million and shall, on the other Party’s request, produce both the insurance certificate giving details of cover and the receipt for the current year’s premium.
11. TERM
11.1 Commencement and term: The Agreement shall come into force on the Commencement Date and continue for the Minimum Term and thereafter for the remainder of the Service Period unless terminated by either Party giving not less than one month’s notice, such notice to expire at any time.
11.2 Renewals: In the event that no notice of termination has been received by the Supplier at least 30 days before expiry of the Service Period or any Renewal Service Period (as defined below), the Service Contract shall continue for a further period equivalent to the Service Period (each a “Renewal Service Period”) and so on for subsequent Renewal Service Periods. In such circumstance, the total payment to be paid by the Client for each Renewal Service Period will be an amount equal to the amount paid in the last Renewal Service Period (or, in the case of the first Renewal Service Period, the amount paid in the original Service Period) plus an additional amount (up to a maximum of 15%) which the Supplier shall determine in its discretion. The Supplier may discuss alternative terms with the Client in such circumstances, but any such discussions shall be strictly without prejudice to the provisions of this clause and unenforceable unless agreed in writing and signed by both Parties.
12. TERMINATION
12.1 General termination rights: Either Party may terminate this Agreement with immediate effect by giving written notice to the other Party if:
(a) the Client fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment;
(b) the other Party commits a material breach of any other term of this Agreement and (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
(c) the other Party repeatedly breaches any of the terms of this Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Agreement;
(d) the Client 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 (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 (IA 1986) as if the words “it is proved to the satisfaction of the court” did not appear in sections 123(1)(e) or 123(2) of the IA 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the IA 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
(e) the Client 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 any of its creditors other than (being a company) 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) the other Party applies to court for, or obtains, a moratorium under Part A1 of the IA 1986;
(g) 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 the other Party (being a company, limited liability partnership or partnership) 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;
(h) an application is made to court, or an order is made, for the appointment of an administrator, or a notice of intention to appoint an administrator is given or an administrator is appointed, over the other Party (being a company, partnership or limited liability partnership);
(i) the holder of a qualifying floating charge over the assets of that other Party (being a company or limited liability partnership) has become entitled to appoint or has appointed an administrative receiver;
(j) a person becomes entitled to appoint a receiver over all or any of the assets of the other Party or a receiver is appointed over all or any of the assets of the other Party;
(k) the other Party (being an individual) is the subject of a bankruptcy petition, application or order;
(l) 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;
(m) 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(d) to clause 13.1(l) (inclusive);
(n) the other Party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or
(o) the aggregate liability of the other Party reaches the cap set out in Clause 11.2 without the other Party agreeing on request to refresh such aggregate liability cap.
12.2 Termination right for prolonged Force Majeure: If a Force Majeure Event continues for a period of 30 (thirty) days or more following notification in a manner which substantially affects the ability of the relevant Party to comply with its material obligations under this Agreement, the Party not affected by the Force Majeure Event may terminate this Agreement by giving not less than 10 (ten) days ‘ prior written notice to the other Party.
12.3 Supplier right to terminate: The Supplier may immediately upon giving notice to the Client terminate this Agreement if:
(a) the Client ceases to be in commercial occupation of the Premises; or
(b) there is a persistent failure of Availability of the Premises (in excess of three (3) times in aggregate) when it has been agreed that it will be Available;
12.4 Client right to terminate: The Client may, by giving the Supplier not less than one hundred and twenty days (120) days’ notice, terminate this Agreement if the Client wishes to withdraw from the Agreement for any reason. In such event the Client shall pay any remaining fees due for such period and allow the Supplier to collect the Equipment during the notice period.
12.5 Consequences of termination of the Agreement:
(a) Upon termination of this Agreement:
(i) the Supplier shall be entitled to remove all Equipment from the Premises and the Client shall provide the Supplier (and its Subcontractors) with such access and co operation as the Supplier (and its Subcontractors) may reasonably require to carry out such removal;
(ii) any outstanding amounts payable to the Supplier shall become immediately due and the Supplier shall be entitled to issue an invoice to the Client in respect of those amounts;
(iii) notwithstanding such termination, the Supplier shall remain entitled to issue statements and invoices to the Client in respect of amounts, adjustments, reconciliations and corrections relating to the period up to the termination date;
(iv) termination shall not affect any rights, remedies or obligations of the Parties that have accrued or become due prior to termination;
(v) all licences granted under this Agreement shall immediately terminate and the Client shall immediately cease all use of the Software Services and/or the Documentation;
(vi) each Party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other Party;
(vii) the Supplier may destroy or otherwise dispose of any of the Client Data in its possession unless the Supplier receives, no later than ten days after the effective date of the termination of this Agreement, a written request for the delivery to the Client of the then most recent back-up of the Client Data. The Supplier shall use reasonable commercial endeavours to deliver the back-up to the Client within 30 days of its receipt of such a written request, provided that the Client has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Client shall pay all reasonable expenses incurred by the Supplier in returning or disposing of Client Data.
12.6 Terms surviving termination: The following Clauses shall survive termination of this Agreement: 8, 9, 11, 13, 14, 16 and 17 .
13. NOTICES
13.1 Notices to be in writing: A notice or communication given to a Party under or in connection with this Agreement shall be in writing and sent to the Party at the address or email address given in this Agreement or as otherwise notified in writing to the other Party.
13.2 Delivery: This Clause 14.2 sets out the delivery methods for sending a notice to a Party under this Agreement and, for each delivery method, the date and time when the notice is deemed to have been received or given (provided that all other requirements of this clause have been satisfied and subject to the provision in Clause 14.3).
(a) if delivered by hand, at the time the notice is left at the address;
(b) if sent by pre-paid first class post or other next working day delivery service providing proof of delivery, at 9.00am on the Business Day after posting; or
(c) if sent by email, at the time of transmission.
13.3 Deemed receipt: If deemed receipt under Clause 14.2 would occur outside business hours in the place of receipt, it shall be deferred until business hours resume. In this Clause 14.3 business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
13.4 Legal proceedings: This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
14. ASSIGNMENT
14.1 Supplier’s right to assign etc: The Supplier may freely assign, novate, charge and /or otherwise transfer its rights and /or obligations under this Agreement to:
(a) any of the Supplier’s Group companies;
(b) any of its Subcontractors;
(c) any funder of the Supplier; and/or
(d) any special purpose company established by the Supplier or any funder pursuant to any financing, private equity financing and/or refinancing,
and the Client shall promptly execute any documents reasonably required by the Supplier to effect such assignment, novation, charging or other transfer.
14.2 Client’s right to assign etc: The Client be entitled to assign its rights but shall not be entitled to transfer, subcontract or delegate any of its obligations under this Agreement without the Supplier’s prior written consent (such consent not to be unreasonably withheld or delayed).
15. DISPUTE RESOLUTION
15.1 Technical/Financial disputes: Any dispute or difference arising between the Parties which is of a technical or financial nature shall be referred to an independent expert for determination, in which case:
(a) if the Parties are unable to agree on the appointment of the expert, in the case of a technical matter, he shall be appointed by the President of the Institution of Engineering and Technology and in the case of a financial matter, he shall be appointed by the President of the Institute of Chartered Accountants in England and Wales, at the request of either Party;
(b) the person appointed shall act as an expert not as an arbitrator;
(c) the fees and expenses of the expert shall be borne in the proportions determined by him; and
(d) a determination or certification by an expert under the Agreement is, in the absence of manifest error, conclusive and binding on both Parties.
15.2 Non-technical/financial disputes: Subject to Clause 16.1, if any dispute arises out of or in connection with this Agreement shall be subject to the exclusive jurisdiction of the English courts.
16. PROVISIONS RELATING TO THIS AGREEMENT
16.1 Entire agreement: This Agreement constitutes the entire agreement between the Parties regarding the subject matter of this Agreement and supersedes all earlier agreements of any kind regarding the same all of which are hereby terminated and shall cease to have effect in all respects, and there are no collateral or supplemental agreements relating to this Agreement other than those (if any) executed contemporaneously with this Agreement.
16.2 Successors and assigns: This Agreement shall be binding on and endure for the benefit of each Party’s successors and permitted assigns.
16.3 Party’s right to waive: In its sole and absolute discretion, any Party may waive (in whole or in part) any provision of, or any of its rights under, this Agreement or any related document, and may do so unconditionally or subject to any terms which it thinks fit.
16.4 Variation and waiver: Any variation of this Agreement, or any waiver connected with this Agreement, shall be void for all purposes unless:
(a) in the case of a variation, it is agreed to in writing signed by on behalf of each of the Parties; or
(b) in the case of a waiver, it is set out in writing signed by or on behalf of the Party granting the waiver.
16.5 No loss of rights: Except as specifically stated in a variation or waiver signed in accordance with Clause 17.4, no Party shall lose, or be precluded (permanently or temporarily) from exercising, any right or remedy which is conferred on it by this Agreement or any right or remedy which it has in connection with this Agreement under the general law as a result of any delay, acquiescence or lack of diligence on its part in seeking relief or by any act or course of conduct by it which would otherwise imply that it was affirming this Agreement (or a related agreement) after a breach by the other Party, nor shall any single or partial exercise of any right or remedy preclude the exercise of any other right or remedy.
16.6 Third party rights: No Person shall have any rights under the Contracts (Rights of Third Parties) Act 1999.
17. INTERPRETATION
17.1 Definitions.
The following terms shall have the following meanings:
Authorised Users: those employees, agents and independent contractors of the Client who are authorised by the Client to use the Software Services and the Documentation, as further described in Clause 7.
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Client: the organisation whose details are set out in the Form and described as such.
Client Data: the data inputted by the Client, Authorised Users, or the Supplier on the Client’s behalf for the purpose of using the Software Services or facilitating the Client’s use of the Software Services.
Commencement Date: the date that data begins to be collected by the Supplier following the installation of the Supplier’s sensor technology.
Confidential Information: all confidential information and data which is acquired from or made available (directly or indirectly) by the disclosing Party, or by any member of the disclosing Party’ s Group or the disclosing Party’s representatives or subcontractors, including but not limited to any information or document relating to the disclosing Party’s (or any of its Group’s) business, operations, processes, product information, know-how, trade secrets, market opportunities, Clients or suppliers (whether relating to this Agreement or otherwise) either orally, in writing, or in whatever form obtained or maintained.
Documentation: the document made available to the Client by the Supplier online via [https://oak-network.com/support] or such other web address notified by the Supplier to the Client from time to time which sets out a description of the Software Services and the user instructions for the Software Services.
Equipment: any equipment provided by or installed at the Premises by the Supplier (or on its behalf by a Subcontractor) in order for the Locational Services to be provided to the Client.
Force Majeure Event: the meaning set down in Clause 10.1.
Form: the form (online or physical) signed by the Supplier and the Client which forms part of the Agreement.
Group: in relation to any company, that company and any other company which, at the relevant time, is that company’s Holding Comp any or Subsidiary, or the Subsidiary of any such Holding Company and “member of a Group” has a corresponding meaning.
Hazardous Substances: any substance which when encountered or disturbed could have an adverse effect on human health, habitability of a site or the environment.
Holding Company and Subsidiary: the meanings given to those expressions by Section 1159 of the Companies Act 2006.
Intellectual Property Rights: patents, designs, trademarks, service marks, trade names, logos, get-up, domain names, copyright (including rights in computer software), data base rights, rights in performances, moral right, confidential information and know-how, whether registered or not including applications for registration and all similar forms of protection anywhere in the world.
Law: the laws of England and Wales and, where applicable, the European Union and any other laws, regulations, regulatory policies, guidelines or industry codes that apply to the provision of the Supplier’s Equipment and/or Locational Services.
Locational Services: the services operated by (or on behalf of) the Supplier using the Premises, as listed in the Form. From time to time, the scope of the Locational Services may be amended or extended by written agreement between the Supplier and the Client, at which point the provision of such amended or extended services shall become subject to the provisions of this Agreement.
Minimum Term: the period set out in the Form (and as updated in respect of any future Premises).
Normal Business Hours: 8.00 am to 6.00 pm UK time, each Business Day.
Notice: a notice given in accordance with Clause 14.
Party: each of the Supplier and the Client.
Payments: those amounts payable by the Client from time to time as set out in the Form.
Premises: the Client’s premises in respect of which the Locational Services are provided as detailed on the Form. If additional Premises are added to the scope of this Agreement from time to time, the Form will be updated to reflect the details of such additional Premises and such revised premises shall be the Premises for the purposes of this Agreement.
Service Period: the period set out in the Form (and as updated in respect of any future Premises).
Software Services: the subscription services provided by the Supplier to the Client under Clause 7 via [https://oak-insights.com] or any other website notified to the Client by the Supplier from time to time, as more particularly described in the Documentation.
Subcontractor: any subcontractor engaged by the Supplier from time to time to provide certain Works to the Supplier to enable (or assist) it to provide the Locational Services (or part thereof) to the Client.
Software: the online software applications provided by the Supplier as part of the Software Services.
Supplier: The Oak Network UK Limited and/or any of its subsidiaries from time to time.
Support Services Policy: the Supplier’s policy for providing support in relation to the Software Services as made available at [https://oak-network.com/support] or such other website address as may be notified to the Client from time to time.
User Subscriptions: the user subscriptions purchased by the Client as set out in the Form which entitle Authorised Users to access and use the Software Services and the Documentation in accordance with this Agreement.
Utility Supplier: a person that has contracted with the Client to provide electricity, gas or another utility to the Premises.
Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
Vulnerability: a weakness in the computational logic (for example, code) found in software and hardware components that when exploited, results in a negative impact to the confidentiality, integrity, or availability, and the term Vulnerabilities shall be construed accordingly.
Works: the installation of Equipment at the Premises prior to the Supplier commencing delivery of the Locational Services.
17.2 References to enactments. Any reference in any terms to an enactment includes a reference to:
(a) that enactment as amended or re-enacted, with or without amendment, whether before this Agreement or not; or
(b) any enactment which that enactment re-enacts, whether with or without amendment; or any subordinate legislation under the enactment referred to or under any such enactment as is described in Clauses 1.2(a) or 1.2(b)
and a reference to things done or failing to be done under or for the purpose of any enactment shall be construed accordingly.
17.3 References to Clauses etc. References in these Terms to Clauses means the clauses of these Terms.
17.4 Singular, plural and genders. Words importing the singular include the plural and vice versa and words importing a gender include every gender.
17.5 Headings. Headings are only for convenience and shall not affect the meaning of the provisions of these Terms.
17.6 General Words. General words shall not be given a restrictive meaning by reason of the fact that they are followed by particular examples intended to be embraced by the general words or introduced by the word “other” and preceded by words indicating a particular class of acts, matters or things.
17.7 References to documents. References to, or to a provision of, a document are references to it as amended or supplemented or replaced, whether before the date of this Agreement or otherwise.
17.8 References to periods. References to day, weeks, months and years mean, respectively, calendar days, weeks, months and years.
17.9 A reference to any “Party” shall include that Party’s personal representatives, successors and permitted assigns and Affiliates.
