This document sets out the terms and conditions (“Terms”) between (1) the Client, whose details are set out on the Service Agreement (“Client/you”) and (2) Odicci. These Terms and the Privacy Policy govern your use of the Odicci system and Services. By using our Site and Services, you confirm that you accept these Terms and the Privacy Policy and that you agree to abide and be bound by them. YOU MAY NOT USE THE SITE AND SERVICE UNLESS YOU AGREE TO BE BOUND BY THESE TERMS AND THE PRIVACY POLICY.

 

1 Interpretation

1.1 In these Terms the capitalised terms set out below shall have the following meanings:

Associated Company” means a company belonging to the same group as either party;

“Charges” means Odicci’s charges for the Services as set out in the Service Agreement together with such other additional charges as may be agreed between the parties from time to time, including purchases made by the Client through the Software;

Codes” means all applicable legislation, regulations, directions, rules, codes of practice and guidelines applicable to database marketing in the countries in which the Client operates and/or in which audiences using the Services are located (including, without limitation, the Committee of Advertising Practice Code (CAP Code), DMA best practice guides, the Mobile Marketing Association (as is relevant) as may be revised or adopted in relation to marketing best practice ;

Data Processing Addendum” means the addendum to these Terms found at https://www.odicci.com/data-processing-agreement/;

Data Protection Laws” means: (a) in relation to the Client all data protection and/or privacy laws, principles and agreements and all electronic marketing laws, principles and agreements applicable to the country (and state where applicable) in which the Client signing a Service Agreement is located and all countries (and states where applicable) in which recipients of Messages sent via the Services are located, including but not limited to the CAN-SPAM Act 2003 and Canada’s anti-spam legislation (CASL); (b) in relation to Odicci all data protection and/or privacy laws, principles and agreements and all electronic marketing laws, principles and agreements applicable to the country (or state where applicable) in which the Odicci entity signing a Service Agreement is located;

Odicci” means: Odicci Limited, whose registered office is at Suite 510, Hayes 3, 11 Millington Road, Haye, UB3 4AZ (registered in England and Wales under company number 10584678 and VAT number GB 310 1169 63); or

Initial Term” means the fixed term, minimum term or initial term set out in the Service Agreement;

Intellectual Property” means any and all patents, copyrights (including future copyrights), design rights, trade marks, Trade Mark, service marks, domain names, trade secrets, know-how, database rights, and all other intellectual property rights, whether registered or unregistered, and including applications for any of the foregoing and all rights of a similar nature which may exist anywhere in the world and provided by or owned by Odicci, or its Associated Companies;

Material” means written documentation and content, verbal, electronic and other information, databases, computer software, Software, designs, drawings, pictures or other images (whether still or moving), the Site, sounds or any other record of any information in any form belonging to Odicci but for the avoidance of doubt does not include material belonging to the Client;

Experiences” means digital experiences including sweepstakes, giveaways, promotions, landing pages, social hubs, contests, polls, surveys, product feedback forms, reviews, signups, countdowns, video galleries and other promotional or advertising campaigns created with the Odicci platform and displayed using the Services by Clients to audiences, including, but not limited to micro-sites.

Messages” means communications and content sent using the Services by Clients to recipients, including, but not limited to, emails and SMS.

Service Agreement” means the Service Agreement confirming the Level of Services you are purchasing and incorporating these Terms;

Privacy Policy” means Odicci’s privacy policy available at https://www.odicci.com/privacy-policy/ ;

Renewal Period” means twelve (12) months;

Services” means the provision of the Odicci data processing services and Software for use by the Client according to the Service Agreement whereby: (a) Odicci provides the Software to collect personal data; (b) Odicci provides the facilities for the Client to send Messages to data subjects who have expressly consented to the Client sending them such Messages, and (c) Odicci provides facilities for the Client to export personal data together with such other services agreed between Odicci and the Client from time to time or ancillary to the Services;

Site” means Odicci’s website at www.odicci.com;

Software” means Odicci’s data management and manipulation software;

Trade Mark” means the ‘Odicci’ unregistered trademark and logo and any future registration of either of these marks or any similar mark or branding of Odicci or of any Associated Companies or third parties provided or used as a part of these Services or any application for registration anywhere in the World;

Working Day” means Monday to Friday excluding statutory holidays in the country in which Odicci is located; and

Working Hours” means 9.00 to 18.00 on a Working Day in the time zone in which Odicci is located.

1.2 Subject to clause 17, any reference in these terms to ‘writing’ or related expressions includes but shall not be limited to a reference to email, communications via websites and comparable means of communication.

1.3 Except where the context requires otherwise: the singular includes the plural and vice versa; a reference to one gender includes all genders, and words denoting persons include firms and corporations and vice versa.

 

2 Supply of the Services

2.1 Odicci shall provide the Services to the Client for the term set out in clause 13.1 in accordance with these Terms and the Privacy Policy. These Terms shall come into force and govern the provision of the Services by Odicci and the use of the Services by the Client from the date set out on the Service Agreement signed by the Client.

2.2 Odicci use third parties to host the Odicci application servers for the provision of the Services. The Client hereby consents to Odicci using data centres located in the EU. Clients can request their data be held at rest at one of these locations. A list of locations can be found at www.odicci.com/trust/ (as updated from time to time).

2.3 Odicci does not warrant that the Services will be uninterrupted, error, bug or virus free. The Services will be available with 98% uptime in any calendar month, excluding scheduled maintenance and emergency maintenance. The Client’s sole remedy for any failure by Odicci to meet the availability as stated herein shall be a service credit for the relevant calendar month calculated on the following basis:

Percentage Uptime Percentage Credit

97% – 98% 5%

95% – 96.9% 10%

88% – 94.9% 20%

<88% 40%

Any service credits must be requested within 30 days from the end of the relevant calendar month in which the credit is being claimed.

2.4 It may be necessary for Odicci to temporarily suspend the Services in whole or in part from time to time to carry out maintenance of the Services. Odicci will use its reasonable endeavours to provide the Client with at least 48 hours notice of temporary suspensions of the Services and to undertake any scheduled and planned maintenance or repair work outside of Working Hours in order to minimise disruption to the Services provided to the Client. Such communications will be made via email or via such other mechanisms as Odicci deems appropriate. However, Odicci reserves the right to carry out urgent maintenance or repair work at any time. Services may also be suspended in whole or in part where Odicci or any third party host is obliged to comply with an order, instruction or request of the government, a court or other competent administrative authority or an emergency service organisation. Odicci accepts no responsibility or liability to the Client for any direct or indirect loss or damage that may arise under this clause 2.4.

2.5 Odicci cannot guarantee the display of Experiences to any recipient under the Services as this is dependant upon suitable internet availability and connectivity. Odicci will use reasonable endeavours to assist the Client with methods to maximise the display of Experiences, however, Odicci makes no representations or warranties whatsoever about the speed or number of connections that will be received by recipients. Odicci accepts no responsibility or liability to the Client for any direct or indirect loss or damage that may arise under this clause 2.5.

2.6 Odicci will ensure that Clients will have access to Odicci’s support team, where support may be provided by either email or phone.

 

3 Charges, Invoicing and Payment

3.1 Payment of all invoices is due thirty (30) days from date of invoice. The Client shall pay the Charges in accordance with these Terms, in the currency in which Charges are set out in the Service Agreement. Client shall also be responsible for the payment of currency conversion charges incurred by Odicci.

3.2 After expiry of the Initial Term, Odicci may alter the level of Charges or the payment terms by giving the Client 30 (thirty) days’ written notice. Within 30 (thirty) days of receiving such notice, the Client must notify Odicci in writing if it does not accept the changes, otherwise, the changes will be deemed accepted. If the Client gives notice of any objection as aforementioned the parties shall attempt to mutually agree with the changes to be made to the Terms and if the parties cannot agree within 30 (thirty) days of the notice of objection being served, either party may terminate these Terms by giving the other 90 (ninety) days notice in writing.

3.3 All Charges quoted to the Client for the provision of the Services are exclusive of any applicable tax, for which the Client shall be additionally liable at the applicable rate from time to time.

3.4 No payment shall be deemed paid until Odicci receives payment in cleared funds from the Client.

3.5 If the Client fails to pay Odicci any Charges due pursuant to these Terms, then Odicci shall be entitled to: (a) charge interest (both before and after any judgement) on the outstanding amount at the rate of 3% above the base rate of Barclays Bank plc from time to time, accruing on a daily basis and compounded quarterly, from the due date until the outstanding amount is paid in full; and (b) recover from the Client any amount incurred by Odicci utilising any third party debt agency due to the Client’s failure to pay any Charges due

3.6 If the Client fails to pay any sums due to Odicci and if 5 (five) days after being sent a payment reminder notice by Odicci any sums remain unpaid, Odicci reserves the right to:

(a) disable the account; and

(b) temporarily suspend the provision of the Services to the Client until such time as all outstanding invoices have been settled in full in cleared funds, whereupon the Services will be reinstated.

Before reinstating the Services, Odicci may require the Client to pay a fee for reinstating the Services (as notified to the Client by Odicci) and/or set up a direct debit mandate for payment of future Charges.

3.7 In the event of an invoice being disputed by the Client for valid and reasonable grounds, Odicci may agree to continued provision of the Services whilst discussions take place to resolve the basis of the dispute in accordance with the provisions of clause 15.1, provided that the undisputed portion of any relevant invoice is paid. If the Customer disputes any portion of an invoice based upon usage of the Services, the Client accepts that Odicci’s records of such usage are correct unless proven otherwise by an independent expert.

 

4 Data & Data Protection

4.1 Each party undertakes to comply with its obligations under relevant applicable Data Protection Laws and the Data Processing Addendum.

4.2 The Client is the data controller and Odicci is the data processor in respect of any personal data that Odicci processes in the course of providing Services. Personal data is derived from data provided by the Client and is not checked or monitored by Odicci. Odicci has no liability or responsibility whatsoever howsoever arising directly or indirectly to the Client for the accuracy, content or use of such personal data under this clause 4.2, provided that such use is in accordance with the instructions of the Client and Odicci’s obligations set out in these Terms.

4.3 Odicci has no responsibility or liability for the back up of Client data and although Odicci make daily back-ups, the Client remains responsible for making its own back-ups, particularly but not limited to when the Client adds a significant amount of data to the Services over a period of 24 hours.

4.4 Odicci shall not use any Client data or Materials except in connection with the provision of Services to the Client:

  1. as set out in these Terms; or
  2. as required by law, regulation or regulatory body or any court of competent jurisdiction.

4.5 The Client shall:

  1. ensure that it is appropriately registered with any applicable data protection authority
  2. take appropriate organisational and technical measures against unauthorised or unlawful processing;
  3. obtain where appropriate express, specific and informed consent when obtaining personal data from data subjects;
  4. keep full records of its customers opt-in/opt-out choices regarding unsolicited Messages;
  5. if located or operating in the EEA, only transfer personal data outside the EEA with, and only to the extent of, any express and informed written consent of the relevant data subject.

 

5 Client’s Obligations

5.1 The Client warrants that it shall not:

(a) use the Services in any way so as to bring the Services or Odicci into disrepute;

(b) use the Services in a manner which is unlawful, harmful, threatening, abusive, harassing, tortious, indecent, obscene, libellous, menacing or invasive of another person privacy;

(c) use the Services in a manner which infringes the Intellectual Property, proprietary or personal rights of any third party, including data subjects;

(d) misuse the Site by introducing viruses, trojans, worms, logic bombs or other material which is technologically harmful;

(e) attempt to gain unauthorised access to the Site or Services, the server on which the Site or Services are stored or any server, computer or database connected to the Site or Services; or

(f) attack the Site or Services via a denial-of-service attack or a distributed or malicious denial-of-service attack.

All content and material, which You but not limited to; upload, publish, transmit, distribute or otherwise make available via our Services, must comply with our Acceptable Use Policy (“AUP”) available at https://Odicci.com/aup.

5.2 The Client warrants that it shall:

(a) comply and ensure that its use of the Services complies with all Codes applicable to the country in which the Client is registered and targeted audiences reside;

(b) provide all reasonable assistance required by Odicci to enable Odicci to comply with any requirements or conditions imposed by such Codes;

(c) provide, Odicci, relevant authority, user group or regulator of the Codes with all information or material reasonably requested in order to carry out any investigation in connection with the Client’s use of the Services; and

5.3 Odicci has no responsibility or liability whatsoever howsoever arising directly or indirectly to the Client for the content of any Experiences published using the Services or Messages being sent to recipients in breach of the Client of its obligations contained in this clause 5.3.

5.4 Odicci monitors Experiences created by the Client. If Odicci considers in its reasonable opinion that the Client is creating Experiences in breach of clause 5.1 to 5.3 above, Odicci may at absolute discretion (taking into account the Client’s track record of the use of the Services):

(a) suspend the provision of Services;

(b) block Client’s access to the Services for such time as in each case is reasonable; and

5.5 Odicci will usually provide the Client with prior notice of any suspension or blocking unless immediate action is necessary for the circumstances. Odicci accepts no responsibility or liability to the Client for any direct or indirect loss or damage that may arise under this clause 5.5.

5.6 Where Odicci suspends or blocks access to the Services pursuant to clause 5.5 above, a member of the Odicci compliance team shall contact the Client to:

(a) inform the Client of the action taken or proposed action (where applicable) giving rise to the suspension;

(b) explain why the access to the Services is suspended or blocked;

(c) to inform the Client of the remedial actions that the Client needs to take to rectify the issues with the Client’s use of the Services;

(d) inform the Client of any applicable de-listing fee payable to Odicci (if necessary and determined in Odicci’s sole discretion); and

(e) to agree on the timescale for the Client to take the necessary remedial actions.

Odicci shall only reactivate the Services once the Client has taken the remedial actions. If the Client fails to take the remedial actions within the timescale agreed, Odicci reserves the right to terminate these Terms upon giving notice to the Client and the Client shall become immediately liable to pay all outstanding fees for the remainder of the unexpired term.

5.7 The Client will keep its password and other access details for use with the Services confidential and restricted to those members of staff who need to know such details and shall ensure all such staff are aware of the confidential nature of such information and treat it accordingly. The Client shall notify Odicci immediately if it believes that such information is no longer secret. The Client is solely responsible for all activities resulting from the use of the Client’s password or account. The Client will not permit any person to access the Services for any unauthorised purpose that would constitute a breach of these Terms.

5.8 Without prejudice to its other rights in these Terms Odicci reserves the right to prevent the publishing of any Experiences forming part of the Services or any other item or material made available via the Services by the Client at any time and without notice, where the content is in Odicci’s reasonable opinion a breach of these Terms. Odicci accepts no responsibility or liability to the Client for any direct or indirect loss or damage that may arise under this clause 5.8.

5.9 The Client is not permitted to conduct vulnerability scanning, or any form penetration testing against the Odicci Services or application servers.

 

6 Ownership & Use of the Intellectual Property Rights

6.1 The Client acknowledges and Odicci warrants that:

(a) Odicci is the proprietor of the Intellectual Property and Materials; and

(b) the Intellectual Property and Materials do not infringe the intellectual property rights of any third party.

6.2 Subject to clause 11.4, Odicci shall indemnify the Client against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by the Client arising from a breach of clause 6.1. This indemnity shall not cover the Client to the extent that a claim under it results from use of Client’s Intellectual Property.

6.3 Odicci hereby grants to the Client a personal, non-exclusive and non-transferable licence to Use the Intellectual Property and/or Materials for the duration of these Terms strictly in accordance with these Terms only. The Client shall not be entitled to use the Intellectual Property and/or Materials for any other purpose than the use of the Services, including, without limitation, that the Client shall have no right to copy, translate, reproduce, adapt, reverse engineer, decompile, disassemble, create derivate works, modify, sell, rent, lease, transfer, assign, sub-license, make any representations, warranties or guarantees with regard to the Intellectual Property and/or Materials in whole or part except as permitted by law.

6.4 The Client shall only use the Intellectual Property and/or Materials or any Odicci branding in the form stipulated by Odicci from time to time and shall observe all directions given by Odicci as to colours and size and representations of the Trade Mark and branding and their manner and disposition on the Client’s products, packaging, labels, wrappers and any accompanying leaflets, brochures or other materials.

6.5 The use of the Intellectual Property and/or Materials by the Client shall at all times be in keeping with and seek to maintain its distinctiveness and reputation as determined by Odicci and the Client shall cease any use to the contrary as Odicci may require.

6.6 The Client shall not use any mark or name confusingly similar to the Trade Mark in respect of any of its Services or use the Trade Mark as part of any corporate business or trading name or style. Odicci may use the Client’s trademarks for publicity purposes only in a form and manner approved by the Client in writing in advance. Odicci may not refer to the Client in Odicci’s marketing and advertising communications, without first obtaining consent.

6.7 The Client shall as soon as it becomes aware thereof give Odicci in writing full particulars of any use or proposed use by any other person, firm or company of a trade name, trademark or get up of goods or mode of promotion or advertising which amounts or might amount either to infringement of Odicci’s rights in relation to the Intellectual Property and/or Materials or to passing off.

6.8 If the Client becomes aware that any other person, firm or company alleges that the Intellectual Property and/or Materials is invalid or that use of the Intellectual Property and/or Materials infringes any rights of another party or that the Intellectual Property and/or Materials is otherwise attacked or attackable the Client shall as soon as reasonably possible give Odicci full particulars in writing thereof and shall make no comment or admission to any third party in respect thereof.

6.9 Odicci shall have the conduct of all proceedings relating to the Intellectual Property and/or Materials and shall in its sole discretion decide what action if any to take in respect of any infringement or alleged infringement of the Intellectual Property or passing off or any other claim or counterclaim brought or threatened in respect of the use or registration of the Intellectual Property. The Client shall not be entitled to bring any action relating to the Intellectual Property in its own name but shall reasonably assist Odicci upon Odicci’s reasonable request. Odicci agrees to reimburse the Client’s reasonable expenses incurred in complying with clauses 6.7, 6.8 and 6.9.

 

7 Confidentiality

7.1 Subject to clause 7.2, neither party shall disclose at any time during the Term or for a period of ten (10) years after Termination, to any third party any information relating to the other party including information relating to:

(a) Intellectual Property, software, the Software, materials, Materials, products, systems, operations, processes, plans or intentions, product information, know-how and market opportunities; and

(b) business, identity and affairs and the business, identity and affairs of its directors, officers, employees, customers and potential customers or personal data relating to customers, suppliers, agents, or subcontractors and the like, which comes into the possession of the other party as a result of or in connection with the performance of these Terms.

7.2 The provisions of clause 7.1 shall not apply to any information which:

(a) is in or enters the public domain other than by a breach of clause 7.1; or

(b) is in the possession of the receiving party without restriction in relation to disclosure before the date of its receipt in connection with these Terms; or

(c) is obtained from a third party who is lawfully authorised to disclose such information and is provided to the receiving party without any obligation of confidentiality;

(d) is authorised in advance for release by the disclosing party; or

(e) may be required to be disclosed under applicable legislation or the order of a court or other competent authority.

 

8 Promotions

8.1 Odicci cannot be held responsible for the prizes, products or services offered to users through any promotion implemented on the Odicci platform.

8.2 Odicci offers the Client the chance, if they desire it, to use the platform for randomly selecting promotion winners. The platforms allows you to choose the winners and/or alternates of a promotion.

8.3 Under no circumstances can Odicci be held responsible for any misuse of, or malfunction relating to, the platform for generating random winners.

8.4 The Client is responsible for complying with Facebook, Instagram, Twitter and Google’s promotion guidelines, and for conforming to the current legislation in the countries and/or territories affected by said promotion or contest.

8.5 The Client is responsible for the content and running of said promotion.

8.6 The Client is responsible for all the information, inserted and associated, of users who register for the promotion.

8.7 The Client should indicate in the promotion’s Terms and Conditions or Privacy Policy what use will be made of a participant’s details and said administrator should obtain the consent of participants for treatment of their personal details.

 

9 Interruption of Services

We reserve the right if it is necessary for us to interrupt the Services, to modify, suspend, or discontinue providing the Services or any part thereof with or without notice. We will do our best to give you reasonable notice where this is possible and when we judge the downtime is such as to justify telling you.

 

10 Publicity Right

You grant us the right to use your name and/or company logo on our Site and in our client’s list.

 

11 Statistical Information

You consent to and agree that ODICCI is allowed to compose statistical and performance data in relation to your use of the Service we provide to you and make such information available to the public, provided that such information does not contain Client and/or Customer Data and/or identify Client and Customer confidential information. ODICCI retains all intellectual property rights to such information.

 

12 Limitation of Liability and Indemnity

12.1 This clause 11 sets out the entire financial liability of either party to the other (including any liability for the acts or omissions of a party’s employees, agents, consultants, and subcontractors) in respect of:

(a) any breach of these Terms;

(b) any use of the Services or any part of them; and

(c) any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Terms.

12.2 Other than where expressly stated, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from these Terms.

12.3 Nothing in these Terms limits or excludes the liability of either party:

(a) for death or personal injury resulting from negligence; or

(b) for any damage or liability incurred as a result of fraud or fraudulent misrepresentation;

(c) or any other liability which cannot be excluded by applicable law.

12.4 Subject to clauses 12.2, 12.3, 12.5 and where expressly stated:

(a) neither party shall be liable to the other under these Terms for any loss of profits, loss of business; depletion of goodwill and/or similar losses; loss of goods; loss of contract; loss of use; loss or corruption of data or information; or any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses; and

(b) each party’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution arising in connection with the performance, or contemplated performance, of these Terms, including any indemnity or contribution, shall be limited to the Charges paid or payable under the Initial Term or then-current Renewal Term, in total in respect of any single claim or series of connected claims brought by either party under these Terms.

12.5 The Client shall indemnify Odicci against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by Odicci arising out of a breach of clause 5. This indemnity shall not cover Odicci to the extent that a claim under it results from Odicci’s negligence or wilful misconduct.

12.6 If any third party makes a claim, or notifies an intention to make a claim, against either party which may reasonably be considered likely to give rise to a liability under any indemnity (a “Claim”), The indemnifying party shall:

(a) as soon as reasonably practicable, give written notice of the Claim to the indemnifying party, specifying the nature of the Claim in reasonable detail; and

(b) not make any admission of liability, agreement or compromise in relation to the Claim without the prior written consent of the indemnifying party (such consent not to be unreasonably withheld), provided that the indemnifying party may settle the Claim (after giving prior written notice of the terms of settlement (to the extent legally possible) to the claiming party.

12.7 Nothing in this clause shall restrict or limit either party’s general obligation at law to mitigate a loss it may suffer or incur as a result of an event that may give rise to a claim under this clause 11.

 

13 Force Majeure

Neither party shall be responsible to the other in circumstances where some or all of the obligations (except for the obligation for the payment of Charges) under these Terms cannot be performed due to circumstances outside the reasonable control of the defaulting party including, without limitation, an Act of God, change in legislation, fire, explosion, flood, accident, strike, lockout or other industrial dispute, war, terrorist act, riot, civil commotion, failure of public power supplies, third party hacking, viruses, trojans, worms, logic bombs or other material attacking the Site, a denial-of-service attack, a distributed or malicious denial-of-service attack, failure of communication facilities, unavailability of the internet. However, if such circumstances persist for more than 14 (fourteen) days, the non-defaulting party may terminate these Terms and all Charges due to Odicci up to the date of termination shall become immediately due and payable.

 

14 Term, Suspension and Termination

14.1 Odicci shall provide the Services set out in the Service Agreement and as purchased by the Client through the Software to the Client for the Initial Term. For the avoidance of doubt, any purchases made through the Software shall run coterminous with those set out in a Service Agreement. Upon expiry of the Initial Term, these Terms shall automatically renew for successive Renewal Periods, unless a party terminates:

(a) by giving at least 30 (thirty) days’ notice prior to the expiry of the Initial Term or any Renewal Period (or as otherwise may be directed by Odicci); or

(b) in accordance with clauses 14.3 or 14.4 below.

14.2 Odicci may immediately and without notice suspend the provision of Services to the Client if the Client’s account remains inactive for a period of 13 months or more.

14.3 Either party may terminate these Terms on giving written notice if:

(a) either party commits a material breach of these Terms and (if capable of remedy) the breaching party fails to remedy the breach within 14 (fourteen) days after being required by written notice so to do; or

(b) either party becomes insolvent or bankrupt, enters into an arrangement with creditors, has a receiver or administrator appointed or its directors or shareholders pass a resolution to suspend trading, wind up or dissolve that party other than for the purposes of amalgamation or reconstruction or it ceases, or threatens to cease, trading.

14.4 The period during which Odicci may suspend the Services under these Terms will continue until the circumstances giving rise to Odicci’s right to suspend the Services ceases to subsist or until these Terms are terminated by either party. In the event that Odicci suspends the provision of Services to the Client, the Client will continue to be obliged to pay all Charges owing or due for the period when the Service is suspended.

14.5 Any termination of these Terms for any reason shall be without prejudice to any other rights or remedies a party may be entitled to at law or under these Terms and shall not affect any accrued rights or liabilities of either party nor the coming into force or the continuance in force of any provision of these Terms which is expressly or by implication intended to come into or continue in force on or after such termination including but not limited to the warranties and indemnities contained in these Terms.

 

15 Effects of termination

15.1 Where a Service Agreement is terminated by either party before the end of the Initial Term or then-current Renewal Term (except were terminated by the Client due to a material breach of these Terms by Odicci), all remaining Charges for the Initial Term or then-current Renewal Term (as applicable) shall be immediately payable.

15.2 Following termination: (a) Odicci shall have no obligation to retain any Client data. If the Client wishes to export any data, it should do so prior to the effective date of termination. Where the Client requires Odicci to export any data on its behalf a charge may be applied for this additional service; (b) the Client shall immediately cease using the Intellectual Property and the Materials, and (c) any provision which expressly or by implication is intended to come into or remain in force on or after termination shall continue in full force and effect.

 

16 Disputes

16.1 In the event of any dispute between the parties to these Terms the parties shall within 10 (ten) days of a written request from a party to the other, meet in a good faith effort to resolve the dispute without recourse to proceedings. If the dispute is not resolved as a result of such meeting, any party may (at such meeting or within 14 (fourteen) days from its conclusion) propose to the other in writing that structured negotiations be entered into with the assistance of a neutral advisor (the “Neutral Adviser”). If the parties are unable to agree on the appointment of a Neutral Adviser or the Neutral Adviser is unable or unwilling to act, either party may within fourteen days from the date of the proposal to appoint a Neutral Advisor or within 14 (fourteen) days of notice to any party that he or she is unable or unwilling to act, apply to appoint a Neutral Adviser. The parties shall within 14 (fourteen) days of the appointment of the Neutral Adviser meet with him or her in order to agree with a programme for the exchange of any relevant information and the structure to be adopted for the negotiations. All negotiations connected with the dispute shall be conducted in confidence and without prejudice to the rights of the parties in any future proceedings. If the parties accept the Neutral Adviser’s recommendations or otherwise reach agreement on the resolution of the disputes, such agreement shall be set down in writing and, when signed by their duly authorised representative, shall be binding on the parties. Failing agreement, either of the parties may invite the Neutral Adviser to provide a non-binding opinion in writing. Such opinion shall be provided on a without prejudice basis and shall not be used in evidence in any proceedings commenced pursuant to the terms of these Terms without the prior written consent of the parties.

 

17 Assignment

17.1 Neither party shall assign the whole or any part of these Terms without the prior written consent of the other party, such consent not to be unreasonably withheld, however, Odicci shall be entitled to assign these Terms to any entity that purchases the shares or assets of that party as the result of a merger, takeover or similar event, unless such acquiring entity is a competitor of the non-assigning party.

 

18 Communication & Notices

18.1 Notices or proceedings relating to a dispute shall be given by post addressed to the other party at its registered office or principal place of business as may at the relevant time have been notified. Other notices required to be given by either party to the other under the terms of these Terms may be given in writing by post or by email. Where such notice is given by email it shall be sent to the registered email address provided to Odicci by the Client.

18.2 Any such notice shall be deemed to have been received:

(a) if delivered personally, at the time of delivery;

(b) if sent by post within the United Kingdom, 2 (two) Working Days after posting; and

(c) if sent to any other country within 5 (five) Working Days after posting; provided that if deemed receipt occurs before 9am or after 5pm on a Working Day then the notice shall be deemed to have been given on the next Working Day.

 

19 General

19.1 Except where otherwise expressly stated herein, these Terms constitute the entire agreement between the parties relating to the subject matter of these Terms and, supersedes any previous agreement or understanding whatsoever whether oral or written relating to the subject matter of these Terms. In the event of any conflict between these Terms and the terms contained in the Service Agreement, the Service Agreement shall prevail.

19.2 Odicci may at its reasonable discretion, change or modify the Terms or Services to comply with a change in any applicable law upon giving the Client 30 (thirty) days’ notice of the same either by email or notification on the website. Within a further 14 (fourteen) days from the expiry of such 30 (thirty) days’ notice, the Client may notify Odicci in writing that it wishes to terminate these Terms with effect from the date of any proposed change to the Terms or Services. Odicci may then choose to either accept the notice of termination from the Client, alter the Terms or Service or withdraw its notice to the Client. If no such notice is received from the Client, the Client shall be deemed to have accepted the changes made by Odicci.

19.3 Each party warrants to the other that it has the power and authority:

(a to enter into these Terms; and

(b) to perform its obligations under these Terms.

19.4 These Terms shall not be deemed to create any partnership or employment relationship between the parties.

19.5 Nothing contained in these Terms is intended to be enforceable by any third party pursuant to any rights that such third party may have under applicable law or otherwise.

19.6 No act, failure or delay to act, or acquiescence by Odicci or the Client in exercising any of its rights under these Terms shall be deemed to be a waiver of that right or in any way prejudice any right of Odicci or the client under these Terms, and no waiver by Odicci of any breach of these Terms by the Client shall be considered as a waiver of any subsequent breach of the same or any other provision. Any waiver or relaxation whether partly or wholly of any of the terms or conditions of these Terms shall be valid only if in writing and signed by or on behalf of Odicci and shall apply only to a particular occasion and shall not be continuing and further shall not constitute a waiver or relaxation of any other terms or conditions of these Terms.

19.7 If any provision of these Terms is held by any court or other competent authority to be unlawful, invalid or unenforceable in whole or in part, the provision shall, to the extent required, be severed from these Terms and rendered ineffective as far as possible without modifying the remaining provisions of these Terms, and shall not in any way affect any other circumstances of or the validity or enforcement of these Terms.

 

20 Jurisdiction and Applicable Law

20.1 Each party agrees to these Terms being subject to the applicable law of the country or state where the relevant Odicci entity is located, without regard to choice of law or conflict of law rules. Further, the courts of the country or state where the relevant Odicci entity is located shall have exclusive jurisdiction to determine any disputes arising under the Terms.

 

21 Compliance & Export Restrictions

21.1 Modern Slavery. Odicci undertakes and represents that:

  1. a) neither Odicci nor any of its officers, employees, agents or subcontractors has:

(i) committed an offence under the Modern Slavery Act 2015 (a MSA Offence); or

(ii) been notified that it is subject to an investigation relating to an alleged MSA Offence or prosecution under the Modern Slavery Act 2015; or

(iii) is aware of any circumstances within its supply chain that could give rise to an investigation relating to an alleged MSA Offence or prosecution under the Modern Slavery Act 2015;

  1. b) it shall comply with the Modern Slavery Act 2015 and Odicci’s Modern Slavery Policy (as applicable);
  2. c) it shall notify the Client immediately in writing if it becomes aware or has reason to believe that it or any of its officers, employees, agents or subcontractors have breached or potentially breached any of Odicci’s obligations under clause 21.1(b). Any such notice shall set out full details of the circumstances concerning the breach or potential breach of Odicci’s obligations.

21.2 Bribery. For the purposes of this clauses, means the Bribery Act 2010 and associated guidance published by the Secretary of State for Justice under the Bribery Act 2010. Odicci shall ensure that it and each person referred to in (a) to (c) below (inclusive) does not, by any act or omission, place Client in breach of any Bribery Laws. Odicci shall comply with all applicable Bribery Laws in connection with the performance of the Services, ensure that it has in place adequate procedures to prevent any breach of this clause 21.2 and ensure that:

(a) all of Odicci’s personnel and all direct and indirect subcontractors of Odicci;

(b) all others associated with Odicci; and

(c) each person employed by or acting for or on behalf of any of those persons referred to in (a) and (b) above), involved in performing the Services or with these Terms so comply.

Without limitation to the above, Odicci shall not in connection with the performance of the Services and/or these Terms make or receive any bribe (which term shall be construed in accordance with the Bribery Act 2010) or other improper payment or advantage, or allow any such to be made or received on its behalf, either in the United Kingdom or elsewhere, and will implement and maintain adequate procedures to ensure that such bribes or improper payments or advantages are not made or received directly or indirectly on its behalf.

Odicci shall immediately notify the Client as soon as it becomes aware of a breach of any of the requirements in this clause 21.2.

21.3 Export Restrictions. The Services, content, and other technology that Odicci makes available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied party list. The Client shall not permit users to access or use any Service or content in a U.S. embargoed country (currently Cuba, Iran, North Korea, Sudan or Syria) or in violation of any U.S. export law or regulation.