ITRS OP5 MONITOR & LOG ANALYTICS WEBSITE TERMS AND CONDITIONS

PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING SERVICES FROM OP5. BY USING THE SERVICES PROVIDED BY OP5, CUSTOMER AGREES TO AND ACCEPTS THE TERMS OF THIS AGREEMENT AND ACKNOWLEDGES IT HAS READ AND UNDERSTANDS THIS AGREEMENT. IF CUSTOMER DOES NOT ACCEPT THE TERMS OF THIS AGREEMENT, THEN IT MUST NOT USE OP5 SERVICES.

This Agreement, including all schedules attached hereto (the “Agreement”), is entered into between Op5 and the user of the Services (“Customer”). This Agreement takes effect from the earlier of: (i) the Customer downloading the Software; and (ii) the commencement of any of the Services (the “Effective Date”).

1. Scope
1.1. This Agreement establishes a framework that enables Op5 to offer Services (both on an evaluation and paid subscription basis). The parties agree that the terms of this Agreement will govern all use by Customer of Services provided by Op5. Specific and additional terms and conditions apply to each of the Services provided under this Agreement.

2. Order of precedence & Definitions
2.1. Any conflict between the provisions of this Agreement, an Order Acknowledgement and an SOW shall be resolved in the following order: 
(i) for Software Subscriptions, the Order Acknowledgment takes precedence over all other terms of the Agreement; and
(ii) for the Professional Services: (a) any SOW takes precedence over all terms, (b) then the Order Acknowledgment; (c) then the specific Professional Services terms in Schedule 2; and (d) finally, other terms of the Agreement.
2.2. “Customer Support Ticket” means any written or electronically written request for any Support by a Customer.
2.3. “Documentation” means the standard technical and user documentation supplied by Op5 for the Software as applicable, in the form of manuals and functional descriptions in printed or electronic form, as amended and updated from time to time.
2.4. “Error” means a failure in the Software to operate substantially in accordance with the Documentation, as defined in the ITRS Software Maintenance Policy.
2.5. “EULA” means any end user license agreement and/or applicable use policy applicable to SaaS, as amended by Op5 from time to time.
2.6. “Evaluation Period” means an evaluation period for the Software as defined in Clause 3.1.
2.7. “ITRS Software Maintenance Policy” means the policy attached at Schedule 1, as amended and updated from time to time.
2.8. “Minor Release” means a significant new release or enhancement to the existing Software. Minor Releases are denoted by the middle numeral e.g. Minor Release 5.5.X versus Minor Release 5.6.X.
2.9. “Modified Code” means any modification, addition and/or development of code scripts deviating from the predefined product code tree(s)/modules developed by Op5 for production deployment or use. Configuration of Software options which are intended to be altered is not considered a modification of the Software.
2.10. “New Customer” means any customer that has not previously used the Services in the preceding three (3) years.
2.11. “Op5” shall mean Op5 AB and any other ITRS group companies.
2.12. “Order Acknowledgement” shall mean Op5’s written acceptance of any order placed with Op5 by the Customer. The Order Acknowledgement will list the specific Services that Op5 has agreed to license or provide to the Customer.
2.13. “Partner” means an Op5 partner whose product Op5 is licensed to re-sell to Customers pursuant to this Agreement.
2.14. “Partner Software” means the part of the Partner’s software that is the Partner’s own independently developed proprietary software and is not subject to open source licence terms.
2.15. “Production Environment” means the environment in which the Licensee may deploy software for its business purposes, which is not a Test or Development Environment. 
2.16. “Professional Services” means the consultancy services to be provided by Op5, subject to the additional terms in Schedule 2 and as may be detailed in a separate SOW.
2.17. “Proprietary Software” means the part of the Software that is Op5’s own independently developed proprietary software and is not subject to open source licence terms or Partner Software.
2.18. “SaaS” means the Software licensed by Op5 to a Customer on a “software as a service” basis.
2.19. “Services” shall mean the evaluation during the Evaluation Period, Software Subscription, Support, Professional Services and training.
2.20. “Software” shall mean the products licensed by Op5 as “ITRS Op5 Monitor” and “ITRS Log Analytics”, including all modifications, additions or further enhancements delivered by Op5 and/or the Partner.
2.21. “Software Subscription” shall mean paid subscriptions for the Proprietary Software and Partner Software as detailed in the Order Acknowledgment.
2.22. “SOW” means a separate statement of works detailing the Professional Services provided in accordance with the Order Acknowledgement.
2.23. “Subscription Term” means the period of the Software Subscription (as stated in the Order Acknowledgment) and any subsequent renewal periods and shall commence on the date stated in the Order Acknowledgement. 
2.24. “Support” means the provision of telephone or web-based technical assistance by Op5 to Customer’s technical contact(s) with respect to installation, Errors and technical product problems, in accordance with the ITRS Software Maintenance Policy.
2.25. “Support Plan” means the support plan (either Standard Support or Standard Support with additional Weekend Support) included in the Software Subscription selected by the Customer and accepted by Op5 in an Order Acknowledgement as described in the ITRS Software Maintenance Policy. 
2.26. “Test or Development Environment” means an environment in which the Software may be used in connection with development, testing or pre-production staging only. 
2.27. “Unit” shall mean the measurement of Software usage as defined in the current product specifications.
2.28. “Version” means a major new release or enhancement to the existing Software. Versions are denoted by the numeral to the left of the decimal point e.g. Version 4.0 compared to Version 5.0.
2.29. ”Working Hours” means the hours between 9:00am and 5:30pm in the local time zone of each of the ITRS offices listed in Schedule 1, paragraph 2.1 below, excluding weekends, bank holidays and other public holidays as defined by law in the jurisdiction of the relevant offices.
2.30. Unless otherwise required by the context, words in plural shall also mean and include those in singular and vice versa.

3. Evaluation Licence
3.1. Op5 grants all New Customers a royalty-free, non-exclusive, revocable licence to evaluate the Software for thirty (30) days in order to decide if they should purchase a Software Subscription, subject to the following conditions and also the exclusions in Clause 3.2 (the “Evaluation Period”):
3.1.1. the Evaluation Period shall commence on the earlier of the date that the New Customer: (i) downloads the Software; or (ii) commences use of the Software, and subject to Clause 3.1.4, shall terminate after thirty (30) days or, if sooner, on commencement of a Software Subscription;
3.1.2. Customer shall use the Software in a Non-Production Environment only and shall not derive financial, commercial or operational benefit from its use;
3.1.3. Customer may make such copies of the Software as are necessary to evaluate the Software on its systems but may not make any back-up or archival copies without Op5’s prior written agreement;
3.1.4. notwithstanding Clause 3.1.1, either party may terminate the Evaluation Period immediately on written notice to the contact address provided by the other party;
3.1.5. on termination of the Evaluation Period other than on commencement of a Software Subscription, the provisions of Clause 13.6 shall apply.
3.2. Notwithstanding anything to the contrary in this Agreement, during the Evaluation Period only:
3.2.1. Customer shall indemnify Op5 from and against all losses, costs, expenses, liabilities, damages, claims, demands, proceedings or legal costs and judgments that Op5 incurs or suffers as a result of a breach of any of the terms set out in this Clause 3 in connection with its evaluation of the Software during the Evaluation Period;
3.2.2. where the Software includes only “GA” products, as denoted by Op5, Customer shall be entitled to contact Op5 Client Services in the usual manner, except that the only remedy available for any error (as the Software is for use in a Non-Production Environment only), is that any resolution will be considered for inclusion in the form of a future software update or updated documentation as applicable;
3.2.3. For the avoidance of doubt, the Customer shall have no right to contact Op5 Client Services during the Evaluation Period where the Software includes “non-GA” products (as denoted by Op5).
3.2.4. UNDER NO CIRCUMSTANCES SHALL OP5 BE LIABLE TO THE CUSTOMER FOR ANY DIRECT LOSS OR DAMAGE WHATSOEVER.
3.2.5. THE CUSTOMER AGREES THAT IT HAS SOLE RESPONSIBILITY FOR ITS USE OF THE SOFTWARE AND PROTECTING ITS DATA DURING THE EVALUATION PERIOD. SUBJECT TO CLAUSE 9.1, OP5 EXCLUDES ANY AND ALL LIABILITY, HOWSOEVER ARISING, IN RELATION TO OR IN CONNECTION WITH THE CUSTOMER’S USE OF THE SOFTWARE.

4. License and Ownership
4.1. Software. Op5 hereby licenses the Customer to use the Services as set out in the Order Acknowledgment, subject to payment of the Fees and the Customer’s compliance with the terms of this Agreement and any applicable EULA. All licence rights not explicitly granted to the Customer by Op5 are reserved by Op5.
4.2. Trademarks. This Agreement grants no right or license, expressed or implied, for the use of any Op5 or third-party trademarks, trade names or service marks. Customer grants Op5 a worldwide, royalty-free, non-exclusive, perpetual license to use, reproduce, publicly perform, distribute and display Customer trademarks and logos on the Op5 website, advertising, and marketing materials in order to identify Customer as a customer. Customer hereby consents to Op5 creating a case study based on the Customer’s use case for the Software and Professional Services for use in future Op5 marketing (the “Draft Case Study”). Customer shall have final editing rights of the Draft Case Study, provided however that any such reasonable edits must be received within one (1) month of Op5 issuing the Draft Case Study to Customer (the “Editing Period”). Where Customer fails to respond to and/or or request edits from Op5 within the Editing Period, Op5 shall be entitled to publish the Draft Case Study and use it in future marketing.

5. Payment
5.1. Payment. Fees for Services (the “Fees”) provided hereunder will be identified in the Order Acknowledgement and shall be paid (i) no later than thirty (30) days after Op5’s issuance of an invoice unless otherwise stated in said Order Acknowledgement, and (ii) in the currency quoted by Op5.
5.2. Quoted Fees do not include duties, out-of-pocket expenses, travel expenses, compensation for loss of time, customs, taxes or shipping costs. Customer will pay Op5 an amount equal to any taxes (meaning any form of sales, use, value added or other form of taxation and any fines, penalties, surcharges or interest, but excluding any taxes based solely on the net income of Op5) arising from or relating to this Agreement or an applicable Order Acknowledgement and which are paid by or are payable by Op5. If Customer is required to withhold or deduct any portion of the payments due to Op5, Customer will increase the sum payable to Op5 by the amount necessary so that Op5 receives an amount equal to the sum it would have received had Customer made no withholdings or deductions.
5.3. All Fees for a Service are due when the Service is forfeited in accordance with Clause 13.3 below.
5.4. If full payment has not been received within thirty (30) days of the invoice date Op5 reserves the right to: (i) terminate or suspend performance of all or part of the Services and/or provision of the Software; (ii) change its credit terms; and/or (iii) charge interest at the rate of six (6) percent per annum.
5.5. Customer agrees to pay, in addition to any balance due and the applicable interest, reasonable legal fees and/or court costs, including those of any bankruptcy proceeding, incurred by Op5 as a result of the collection of the balance due, whether or not an action is filed in the court.
5.6. Op5 may modify the Fees and/or any discount on renewal of any Subscription Term.
5.7. No Refunds. Except as otherwise provided in this Agreement, any and all payments for Services made by Customer pursuant to this Agreement are non-refundable.
5.8. Failure to pay. If payment is not received as provided in Clause 5.4, Op5 shall have a right to temporarily withdraw Support and cease issuing of new licence keys for the Software because of the Customer’s failure to pay.

6. Op5 Re-Sellers
6.1. Op5 has engaged a number of channel re-sellers (“Re-Sellers”) to promote, market and support certain Services. Op5 is not responsible for: (i) the actions of its Re-Sellers; (ii) any additional obligations Op5’s Re-Sellers may have imposed on the Customer; or (iii) any products or services that Re-Sellers supply to Customer under any separate agreements between a Re-Seller and Customer.

7. Software Subscriptions
7.1. Provision of Software Subscriptions. Subject to the terms of this Agreement, Op5 shall, during the agreed Subscription Term, provide Customer with the Software Subscription specified in the Order Acknowledgement and in accordance with the chosen Support Plan. The Subscription Term will commence on the date stated in the Order Acknowledgement or as otherwise agreed in writing with Op5.
7.2. Use of Software and Software Subscriptions.
7.2.1. Customer will use the Software Subscription and Software only for Customer’s internal use.
7.2.2. Distributing the Proprietary Software or any portion thereof for the benefit of a third-party is a material breach of the Agreement unless otherwise agreed by the parties. The parties acknowledge that the open source licences applicable to other individual software packages included within the Software may give the Customer the right to distribute packages to third parties (and this Agreement is not intended to interfere with Customer’s right under those individual licences).
7.2.3. The Software Subscription may be used under the terms of this Agreement by third parties acting on Customer’s behalf, such as contractors, subcontractors or outsourcing vendors provided: (i) Customer remains responsible for all the Customer’s obligations under this Agreement and for the activities and omissions of the third parties; and (ii) Customer obtains Op5’s written consent before Customer migrates the Customer’s Software Subscriptions and Software from the Customer’s premises and, in the case of a migration to a third-party cloud or hosting provider, Customer agrees to any additional terms that Op5 may from time to time require.
7.2.4. Any use of the Software Subscriptions other than in accordance with the Documentation is a material breach of this Agreement, such as: (i) only purchasing or renewing Software Subscriptions based on some, but not all, of the total number of Units of Software utilised by the Customer; (ii) providing Software access or Software support to third parties; (iii) using the Support to provide support to third parties; and/or (iv) using Support to support or maintain any third-party software other than the Software.
7.2.5. The use case determines which Software Subscription is required and what fees are charged. If Customer uses or deploys the Software in a manner contrary to a supported use case, Customer is responsible for purchasing the appropriate Software Subscription(s) to cover such usage.
7.2.6. By using any trial subscription(s), Customer represents that Customer will be using the Software Subscriptions for trial purposes only and Customer understands that Op5 is relying on the accuracy of Customer representation in providing Customer with access to the trial subscription(s). If Customer uses the Op5 trial subscription(s) for any other purposes, Customer is in violation of this Agreement and is required to pay the applicable subscription fees in addition to any and all other remedies available to Op5 under applicable law. Examples of such violations include, but are not limited to, using the Software Subscriptions provided under a trial subscription for production purposes, offering support to third parties, or complementing or supplementing third-party support with Software Subscriptions received through a trial subscription.
7.2.7. Op5 may at any time without notice or liability, limit availability to the Software Subscriptions in order to perform maintenance activities.
7.3. End of Availability. Op5 may, at its discretion, decide to retire Software and/or Software Subscriptions from time to time (“End of Availability”). Op5 shall post a notice of End of Availability, including the last date of general commercial availability of the affected Software and the timeline for discontinuing Software Subscriptions on Op5’s website. Op5 shall have no obligation to provide Software Subscriptions and/or Support for retired Software.
7.4. Purchase Requirements.
7.5. Except as otherwise provided for by Op5, Customer may purchase initial Software Subscriptions only for the most current, generally available release of the Software.
7.6. Customer must purchase and/or renew Software Subscriptions at the same support level for all of the Software in a given environment, such as Test, Development, or Production (i.e. Customer cannot purchase Weekend Support for only one licence in its lab and purchase Standard Support for the other licences in that environment).
7.7. Exclusions.
7.7.1. Software Subscriptions do not cover problems caused by the following: (i) unusual external physical factors such as inclement weather conditions that cause electrical or electromagnetic stress or a failure of electric power, air conditioning or humidity control; (ii) neglect; (iii) misuse; (iv) operation of the Software with other media not in accordance with the manufacturer’s specifications; (v) use other than ordinary and intended use; (vi) use of the Software that deviates from any operating procedures as specified in the applicable Documentation; (vii) third-party products, other than the interface of the Software with the third-party products; (viii) Modified Code; or (ix) any customised deliverables created by Op5, Re-Sellers or third-party service providers specifically for Customer as part of consulting services. Customer may request assistance from Op5 for such problems, for an additional fee.
7.7.2. In the event that Op5 suspects that a reported problem may be related to Modified Code, Op5, may, in its sole discretion: (i) request that the Modified Code be removed; and/or (ii) inform Customer that additional assistance may be obtained by Customer directly from various product discussion forums or by engaging Op5’s Professional Services group for an additional fee.
7.8. Customer Responsibilities. Op5’s obligations regarding Software Subscriptions are subject to the following:
7.8.1. Customer agrees to receive from Op5 communications via e-mail, telephone, and other formats, regarding Software Subscriptions (such as communications concerning support coverage, Errors or other technical issues and the availability of new releases of the Software and training options).
7.8.2. Customer is solely responsible for the use of the Software by its personnel and shall properly train its personnel in the use and application of the Software.
7.8.3. Customer shall promptly report to Op5 all problems with the Software and shall implement any corrective procedures provided by Op5 reasonably promptly after receipt.
7.8.4. Customer shall provide Op5 with all information, access, and full good faith cooperation reasonably necessary to facilitate the provision of the Software Subscriptions and will do anything that is identified in the relevant Order Acknowledgement as the Customer’s responsibility. Customer’s failure or delay in its performance of any of the foregoing relieves Op5 of its obligations under this Agreement to the extent that such obligations are dependent upon the Customer’s performance.
7.8.5. Customer shall provide Op5 a list of contacts (including names, email addresses and phone numbers) of those individuals authorised to open a Customer Support Ticket on the Customer’s behalf. These authorised contacts must have the access and authority to administer or configure the Software as required by the nature of the Customer Support Ticket.
7.8.6. Customer is solely responsible for protecting and backing up the data and information stored on the computers on which the Software is used and should confirm that such data and information is protected and backed up in accordance with any internal or regulatory requirements as applicable, before contacting Op5 for technical support. Op5 is not responsible for lost data or information in the event of errors or other malfunction of the Software or computers on which the Software is used.
7.8.7. Customer shall ensure that it has sufficient resources with relevant expertise to implement any recommendations made by Op5 as part of its provision of Support.
7.8.8. Customer is solely responsible for maintaining procedures external to the Software for reconstruction of lost or altered files, data or programs to the extent that it deems necessary and for performing any such reconstruction.
7.8.9. Customer is responsible for obtaining and maintaining appropriate equipment and ancillary services needed to connect to, access or otherwise use the Software, including, without limitation, computers, computer operating systems, data storage, network devices and web browsers.
7.9. Support Plan. The Customer acknowledges that it shall not be entitled to Weekend Support where it has only purchased Standard Support (both as defined in the ITRS Software Maintenance Policy).

8. Services and Delays.
8.1. Delays. Where either:
8.1.1. Customer fails to fulfil any of its obligations in conjunction with Op5’s fulfilment of an Order Acknowledgement in a timely manner; or 
8.1.2. Events occur outside of Customer’s or Op5’s reasonable control,
and cause a delay to or otherwise affect Op5’s ability to perform its obligations under this Agreement, Op5 shall be entitled to adjust the timing of its delivery of the applicable Services.
8.2. No-rescheduling. Customer may not reschedule Professional Services without Op5’s written consent. If, with Op5’s approval, a Professional Service is rescheduled less than seven (7) days from the date of the original booking, Op5 shall have the right to invoice the Customer for any costs and losses resulting from the rescheduling.

9. LIMITATION OF LIABILITY AND DISCLAIMER OF DAMAGES
9.1. LIMITATION OF LIABILITY. NOTHING IN THIS AGREEMENT SHALL OPERATE SO AS TO EXCLUDE OR LIMIT THE LIABILITY OF EITHER PARTY TO THE OTHER FOR:
(a) DEATH OR PERSONAL INJURY ARISING OUT OF NEGLIGENCE;
(b) FRAUD; OR
(c) ANY OTHER LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED BY LAW.
9.2. OP5’S AGGREGATE AND CUMULATIVE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT AND ALL ORDER ACKNOWLEDGEMENTS, REGARDLESS OF THE FORM OF THE CAUSE OF ACTION, WHETHER IN CONTRACT, STATUTE OR OTHERWISE WILL BE LIMITED TO DIRECT DAMAGES AND WILL NOT EXCEED THE AMOUNT PAID BY CUSTOMER TO OP5 UNDER THE MOST RECENT ORDER ACKNOWLEDGEMENT(S) GIVING RISE TO LIABILITY DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO LIABILITY.
9.3. DISCLAIMER OF DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN OR ANY ORDER ACKNOWLEDGEMENT, IN NO EVENT WILL OP5 BE LIABLE TO CUSTOMER OR ITS GROUP COMPANIES FOR: (I) ANY CLAIM BASED UPON A THIRD-PARTY CLAIM; AND (II) ANY INCIDENTAL, CONSEQUENTIAL, OR INDIRECT LOSSES, WHETHER ARISING IN CONTRACT, TORT OR OTHERWISE.
9.4. FOR THE AVOIDANCE OF DOUBT AND FOR THE PURPOSES OF THIS AGREEMENT, INDIRECT LOSSES INCLUDE, BUT ARE NOT LIMITED TO, THE FOLLOWING TYPES OF LOSS AND/OR DAMAGE: LOSS OF DATA; LOSS OF PROFITS; LOSS OF SAVINGS; LOSS OR INTERRUPTION OF SERVICE; LOSS OF BUSINESS OR ANTICIPATORY PROFITS; LOSS OF USE OR DOWNTIME; LOSS OF OR CORRUPTION TO DATA OR OTHER INFORMATION; LOSS OF GOODWILL; OR LOSS OR DAMAGE TO SOFTWARE EVEN IF CUSTOMER OR ITS GROUP COMPANIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS AND/OR DAMAGE.

10. Confidentiality
10.1. Definition. Confidential information means all information or materials disclosed, during the term of this Agreement, by one party (“Discloser”) to the other party (“Recipient”) which are either: (i) in tangible form and marked confidential or similar; (ii) disclosed orally and described as confidential at the time of disclosure; or (iii) information which a reasonable person knew or should have known to be confidential (“Confidential Information”).
10.2. The following information shall be considered Confidential Information whether or not marked or identified as such: (i) licence keys; (ii) information regarding Op5’s pricing, product roadmaps or strategic marketing plans; and (iii) non-public materials relating to the Services.
10.3. Protection. Recipient may use Confidential Information of Discloser: (i) to exercise its rights and perform its obligations under this Agreement; or (ii) in connection with the parties’ ongoing business relationship. Recipient will not use any Confidential Information of Discloser for any purpose not expressly permitted by the Agreement and will disclose the Confidential Information of the Discloser only to the employees or contractors of the Recipients who have a need to know such Confidential Information for purposes of the Agreement and who are under a duty of confidentiality no less restrictive than the Recipient’s duty hereunder. Recipient will protect Confidential Information from unauthorised use, access, or disclosure in the same manner as Recipient protects its own confidential or proprietary information of a similar nature but with no less than reasonable care.
10.4. Exclusions. Confidential Information will not include information which: (i) is or later becomes publicly available without breach of this Agreement, or is disclosed by the Discloser without obligation of confidentiality; (ii) is known to the Recipient at the time of disclosure by the Discloser; (iii) is independently developed by the Recipient without use of the Confidential Information; (iv) becomes lawfully known or available to the Recipient without restriction from a source having the lawful right to disclose the information; (v) is generally known or easily ascertainable by parties of ordinary skill in the business of the Recipient; or (vi) is software code in either object code or source code form that is licensed under an open source license. The Recipient will not be prohibited from complying with disclosure mandated by applicable law if, where reasonably practicable and without breaching any legal or regulatory requirements, it gives the Discloser advance notice of the disclosure requirement.

11. Data Privacy.
11.1. In this Clause, the terms "controller", "processor", "data subject", "personal data", "processing" (and "process") and "special categories of personal data" shall have the meanings given in Applicable Data Protection Law.
11.2. For the avoidance of doubt, Op5 are not contracted to process any personal data on behalf of the Customer except as stated in this Clause. The extent of any processing of personal data carried out by Op5 for the Customer is limited to any processing of personal data that Op5 may conduct in connection with or incidental to its provision of the Services to the Customer (the "Customer Personal Data"), in which case the Customer (the controller) appoints and instructs Op5 as its processor to process the Customer Personal Data for that purpose. For the avoidance of doubt, Customer Support Tickets will be anonymised on the termination of any agreement with that Customer, but the content of the Customer Support Tickets will be retained by Op5.
11.3. The Customer should use all reasonable endeavours to anonymise any Customer Personal Data that is transferred to Op5 in respect of the Support Services (in which case this Clause 11 will not apply in respect of that anonymised data). The Customer shall not disclose (and shall not permit any data subject to disclose) any special categories of personal data to Op5 for processing.
11.4. Each party shall comply with the obligations that apply to it under the EU General Data Protection Regulation (Regulation 2016/679) and any and all applicable national data protection laws, once the implementation date has passed, as each such law may be amended or supplemented from time to time ("Applicable Data Protection Law"). 
11.5. Op5 shall not transfer the Customer Personal Data outside of a country, particularly a country within the European Economic Area ("EEA"), unless it has taken such measures as are necessary to ensure the transfer is in compliance with Applicable Data Protection Law. Such measures may include (without limitation) transferring the Customer Personal Data to a recipient in a country that the European Commission has decided provides adequate protection for personal data, to a recipient that has achieved binding corporate rules authorisation in accordance with Applicable Data Protection Law or to a recipient that has executed standard contractual clauses adopted or approved by the European Commission.
11.6. Op5 shall ensure that any person it authorises to process the Customer Personal Data shall protect the Customer Personal Data in accordance with Op5’s confidentiality obligations under this Agreement.
11.7. Op5 shall implement technical and organisational measures to protect the Customer Personal Data (i) from accidental or unlawful destruction, and (ii) loss, alteration, unauthorised disclosure of, or access to the Customer Personal Data in each due to a breach of Op5 security (a "Security Incident").  
11.8. The Customer consents to Op5 engaging third-party subprocessors to process the Customer Personal Data provided that: (i) Op5 maintains an up-to-date list of its subprocessors (the “Subprocessor List” details provided to the Customer on request), which it shall update with details of any change in subprocessors prior to any such change; (ii) Op5 imposes data protection terms on any subprocessor it appoints that require it to protect the Customer Personal Data to at least the standard required by Applicable Data Protection Law; and (iii) Op5 remains liable for any breach of this Clause that is caused by an act, error or omission of its subprocessor.  Where the Customer has previously requested the Subprocessor List, the Customer may object to Op5’s appointment or replacement of a subprocessor on the Subprocessor List within the thirty (30) days following receipt of Op5’s notification of its appointment or replacement, provided such objection is based on reasonable grounds relating to compliance with Applicable Data Protection Laws.  Following such notice, Op5 will either not appoint or replace the subprocessor or the Customer shall anonymise personal data it discloses, restrict disclosure to Op5 or take such other steps as are reasonable to put in place in order to avoid non-compliance with Applicable Data Protection Laws.
11.9. Op5 shall provide reasonable cooperation to the Customer (at the Customer's expense) in connection with any data protection impact assessment that the Customer may be required to conduct under Applicable Data Protection Law in relation to the processing of Customer Personal Data. 
11.10. If Op5 becomes aware of a confirmed Security Incident, Op5 shall inform the Customer without undue delay and shall provide reasonable information and cooperation to the Customer so that the Customer can fulfil any data breach reporting obligations it may have under (and in accordance with the timescales required by) Applicable Data Protection Law. Op5 shall further carry out any reasonably necessary measures and actions to remedy or mitigate the effects of the Security Incident and shall keep the Customer informed of all material developments in connection with the Security Incident.
11.11. Upon termination or expiry of this Agreement, Op5 shall (at the Customer's election) destroy or return to the Customer all Customer Personal Data in its possession or control.  This requirement shall not apply to the extent that Op5 is required by applicable law to retain some or all of the Customer Personal Data, or to Customer Personal Data it has archived on back-up systems, in which event Op5 shall protect it from any further processing except to the extent required by such law until deletion is possible.

12. Representations and Warranties
12.1. Services. Op5 represents and warrants that: (i) it will use reasonable skill and care in providing the Services; and (ii) the Services will be performed in a professional and workmanlike manner by qualified personnel. Customer must make any claim for fault in Op5’s Services within thirty (30) days of the date Op5 provided the Services. Customer’s exclusive remedy, and Op5’s entire liability, will be the re-performance of deficient Services, or if Op5 cannot substantially correct a breach in a commercially reasonable manner, either party may terminate the relevant Service and, notwithstanding Clause 5.8 above, receive a pro rata refund of the Fees paid for the deficient Services as of the effective date of termination. However, minor defects, which do not materially affect the functionality of the Service, shall not entitle the Customer to terminate the Service.
12.2. Disclaimer of Warranty. Except as expressly provided in this Clause 12 or by a third-party vendor directly to Customer under a separate agreement, the Services are provided by Op5 “as is” and without any other warranties, representations, conditions or other terms of any kind and Op5 excludes all implied warranties to the extent permissible by law (including, without limitation, those of merchantability, satisfactory quality, non-infringement and fitness for a particular purpose). Op5 does not guarantee or warrant that the use of the Services will be uninterrupted, comply with regulatory requirements, be error free or that Op5 will correct all Software errors.
12.3. Without limiting the generality of the foregoing disclaimer, the Services provided hereunder are not specifically designed, manufactured or intended for use in: (i) the planning, construction, maintenance, control, or direct operation of nuclear facilities, (ii) aircraft navigation, control or communication systems, (iii) weapons systems, or (iv) direct life support systems. Customer agrees to be solely responsible for the results obtained from such use of the Services.

13. Term and Termination.
13.1. Term and Termination of Agreement. The term of this Agreement will begin on the Effective Date and will terminate: (i) on the expiration of ninety (90) days following written notice of termination given by one party to the other; or if later (ii) expiry or termination of all Services being performed at the time of receipt of termination.
13.2. Term and Termination of Services. The term of Support Services or a Software Subscription begins on the date set out in the applicable Order Acknowledgement but, unless otherwise agreed, no later than thirty (30) days after the issuance of the Order Acknowledgement and continues for the term stated in said Order Acknowledgement. Thereafter, the term for Software Subscriptions or Support will automatically renew for successive terms of one (1) year each, subject to price increase in accordance with Clause 5.6 above, unless either party gives written notice to the other party of its intention not to renew at least ninety (90) days before the commencement of the next renewal term.
13.3. Forfeit of Services. Customer must use any Services set forth in an Order Acknowledgement during the term specified in the Order Acknowledgement or within one (1) year from the date of issuance of the Order Acknowledgement, whichever is shorter and if unused in the period, such Services will be forfeited.
13.4. If Customer or Op5 materially breaches the terms of this Agreement, or an applicable EULA, and such breach is not cured within thirty (30) days after written notice of the breach is given to the breaching party, then the other party may, by giving written notice of termination to the breaching party, terminate the applicable Service and/or this Agreement; provided, however, that no cure period will be required for a breach of Clause 10 of this Agreement or for a breach of an applicable EULA. The termination of an individual Service will not terminate any other Service or this Agreement unless otherwise specified in the written notice of termination. Without prejudice to any other right or remedy of Op5, in the event either party terminates a Service pursuant to this Clause, Customer will pay Op5 for all Services provided up to the effective date of termination.
13.5. Op5 is entitled to terminate any Service and/or this Agreement, with immediate effect, if the Customer is declared bankrupt, enters into composition proceedings, arrangements with creditors or liquidation or can otherwise be assumed to have become insolvent.
13.6. Upon termination or expiry of this Agreement. The Customer shall:
13.6.1. pay to Op5 all costs and expenses, including legal fees, incurred by Op5 in respect of the termination (if applicable);
13.6.2. pay all arrears of the Fees and other payments payable by the Customer to Op5 in respect of this Agreement or any other agreement;
13.6.3. return to Op5 no later than seven (7) days after expiry or termination of this Agreement, or, if Op5 so instructs, return, destroy or erase the Software and the Documentation (including any Software in its possession or under its control), as well as any technical information or other data supplied to the Customer during this Agreement and any copies made of the whole or any part of them and shall provide Op5 with a statement certified by a director of the Customer that this has been done.

14. Miscellaneous
14.1. Notices. Notices must be in English, in writing, and will be deemed given when delivered by hand or within twenty-four (24) hours of delivery when delivered by registered mail to the address set out in the Order Acknowledgement; provided that any notice from Customer to Op5 includes a copy sent to: Op5 C/O ITRS Group Limited, 6th floor, 15 Bonhill Street, EC2A 4DN, United Kingdom and an e-mail copy to GeneralCounsel@itrsgroup.com.
14.2. Survival. If this Agreement or a Service is terminated for any reason, Clauses 4, 5, 7, 9, 10, 11, 13.3, and 14 of this Agreement (as the same are incorporated into each order under this Agreement) and including such other Clauses as are expressed to survive termination, will survive such termination.
14.3. Assignment. This Agreement is assignable by either party only with the other party’s prior written consent, which will not be unreasonably withheld, conditioned or delayed; provided, however, Op5 may, upon written notice and without the prior approval of the Customer, (i) assign this Agreement to a group company as long as the scope of Services is not affected; (ii) assign this Agreement pursuant to a merger or a sale of all or substantially all of Op5’s assets or stock; and (iii) assign the right to invoice and/or receive payment to a third-party.
14.4. Developments during the fulfilment of an order. Subject to Clause 10 above and notwithstanding anything to the contrary in this Agreement, the ideas, methods, concepts, know-how, structures, techniques, inventions, developments, processes, discoveries, improvements and other information and materials developed in and during the course of the fulfilment of any order under this Agreement may be used by Op5, in any way Op5 deems appropriate.
14.5. Force Majeure. Neither party will be liable for any failure to perform its obligations or delays in performance (except of obligations to make payments) caused by wars, riots, strikes, fires, floods, hurricanes, earthquakes, government restrictions, terrorist acts or other causes beyond its reasonable control.
14.6. Non-Solicitation. Customer agrees not to solicit or hire any personnel of Op5 involved with the delivery of Services in connection with the fulfilment of any order under this Agreement during the term of and for twelve (12) months after termination or expiration of such order. Provided however, that this Clause shall not prevent any individual from responding to a publicly available job advertisement of the Customer, except where the individual was only made aware of that opportunity by the Customer.
14.7. Export. Op5 may supply Customer with technical data that is subject to export control restrictions. Op5 will not be responsible for compliance by Customer with applicable export obligations or requirements for this technical data. Customer agrees to comply with all applicable export control restrictions. If Customer breaches this Clause 14.7 or the export provisions of an applicable EULA for the Software, or any provision referencing these Clauses, Op5 may terminate this Agreement and/or the Service in question and the corresponding obligations thereunder without any liability to Customer.
14.8. Governing Law and Jurisdiction. This Agreement (and any non-contractual dispute) is governed by and construed in accordance with the laws of England and Wales. The parties agree to submit to the exclusive jurisdiction of the courts of England and Wales to resolve any dispute arising out of, or in connection with, this Agreement.
14.9. Dispute Resolution. Each party agrees to give the other a written description of any problem(s) that may arise and to make a good faith effort to amicably resolve any such problem before commencing any proceeding. Notwithstanding the foregoing, either party may take any action reasonably required to protect such party’s rights. No claim or action, regardless of form, arising out of this Agreement or an Order Acknowledgement may be brought by Customer more than one (1) year after the cause of action has occurred.
14.10. Severability. If any provision of this Agreement is held invalid or unenforceable for any reason but would be valid and enforceable if appropriately modified, then such provision will apply with the modification necessary to make it valid and enforceable. If such provision cannot be so modified, the parties agree that such invalidity will not affect the validity of the remaining provisions of the Agreement.
14.11. Waiver. The delay or failure of either party to exercise any rights under this Agreement will not constitute or be deemed a waiver or forfeiture of such rights. No waiver will be valid unless in writing and signed by an authorised representative of the party against whom such waiver is sought to be enforced.
14.12. Entire Agreement. Each order, as finally confirmed by the applicable Order Acknowledgement: (i) is a separate agreement and is deemed to incorporate this Agreement including the applicable and specific terms and conditions for the Services in question and any applicable EULA, unless otherwise expressly provided in said Order Acknowledgement; (ii) constitutes the exclusive terms and conditions with respect to the subject matter of that order; and (iii) represents the final, complete and exclusive statement of the agreement between the parties with respect thereto, notwithstanding any prior written agreements or prior and contemporaneous oral agreements with respect to the subject matter of the order in question.
14.13. Amendment. Op5 reserves the right to amend this Agreement at any time. The latest Agreement is available to download on the Op5 website.
14.14. Further Assurance. Customer will, at the request and cost of Op5, use all reasonable endeavours to do or procure the doing of all such further acts and execute or procure the valid execution of all such documents, as may from time to time be necessary in Op5’s reasonable opinion to give full effect to this Agreement and to vest in Op5 the full benefit of the rights and benefits to be transferred to it under this Agreement.
14.15. Independent Contractors. The relationship of the parties under this Agreement is that of independent contractors. Neither party will be deemed to be an employee, agent, partner, franchisor, franchisee nor a legal representative of the other for any purpose.
14.16. 

Schedule 1 – ITRS Software Maintenance Policy

This ITRS Software Maintenance Policy (“Maintenance Policy”) incorporates, by reference, all terms and conditions contained in the Agreement. The defined terms used in this Maintenance Policy shall have the same meanings as in the Agreement and the following capitalised terms shall have the following meanings:
Error means any error, defect or malfunction in the Software that:
a) causes the reporting, display or storage of incorrect or missing data and information; 
b) causes the Software to exit abnormally or stop responding for users or to other connected software systems; or
c) causes the Software to fail to conform in accordance with Documentation,
and that is not attributable to any of the Customer’s actions/ failure to act; any bespoke software created by or for the Customer, including as part of Professional Services; and/or Customer data.
Workaround means a modification, a downgrade to a previous release or other appropriate action to the software configuration, or related systems that reduces the severity of an Error.

1. MAINTENANCE SERVICES
1.1 All support requests logged with ITRS are registered and tracked on the ITRS Help-Desk system. All Errors shall be assigned a unique identification number. 
1.2 Maintenance Services shall include remote diagnosis and correction of Errors of the Software to comply with the terms of the Agreement by way of First Line Support, Second Line Support and Third Line Support as described below:
First Line Support: This shall include receiving support and maintenance requests, promptly acknowledging receipt of the same and, where possible, resolving any Errors. Where an Error cannot be resolved, it will be referred to Second Line Support.
Second Line Support: The Error shall be referred to persons allocated to resolving Errors of a more complex nature or with more detailed knowledge specific to the Error. Where an Error cannot be resolved, it will be referred to Third Line Support.
Third Line Support: Software enhancements and bug fixes.
1.3 Third-party Software (if any) shall be supported by ITRS in accordance with this Maintenance Policy, however, all Second and Third Line Support may be carried out by the third-party owner of such Software.
1.4 The functional language of all services provided under this Maintenance Policy shall be English.

2. RESPONSE TIMES
2.1 Standard Support
ITRS provides support during Working Hours from the following listed regional offices: London, Stockholm, New York, Tulsa Manila, Singapore and Hong Kong.
Wherever reasonable, acknowledgements to Errors entered in the ITRS Help-Desk system will be provided within 2 working hours.  ITRS shall prioritise all Errors according to their impact to the Customer using the severity definitions set out below.
2.2 Weekend Support
ITRS provides support during weekend hours from the following listed regional offices: London, New York, Tulsa, Gothenburg, Manila, Singapore and Hong Kong. 
This option is not available to our Resellers or clients of Resellers.

2.3 ITRS Help-Desk staff will use reasonable endeavors to resolve Errors in the following time scales:

3. EXCEPTIONS TO MAINTENANCE SERVICES
3.1 ITRS shall have no obligation to provide the Maintenance Services where faults arise from:
3.1.1 misuse, incorrect use of or damage to the Software from whatever cause (other than any act or omission by ITRS), including failure or fluctuation of electrical power;
3.1.2 failure to maintain the necessary environmental conditions for use of the Software;
3.1.3 failure to follow the reasonable directions or instructions from ITRS in the provision of the Maintenance Services;
3.1.4 use of the Software in combination with any equipment or software not designated by the Supplier for use with the Software or any Update forming part of the Software, or any fault in any such equipment or software;
3.1.5 any breach of the Customer's obligations under this Agreement howsoever arising or having the Software maintained by a third-party;
3.1.6 any update not authorised by ITRS;
3.1.7 the Customer using any Software Minor Release other than the current Minor Release or the two previous Minor Releases.

Schedule 2 – Additional Professional Services Terms

1. TARGET DATES
1.1 Op5 will use commercially reasonable efforts to complete the Professional Services by the applicable dates set forth in the Order Acknowledgement and/or SOW (the “Target Dates”).

2. CHANGE ORDERS
2.1 Any changes to the scope of the Professional Services must be made in writing and signed by both parties (“Change Order”) or if the Change Order is initiated via email then it will not take effect unless expressly agreed by the other party in writing. Where the request relates to a change in the number of Professional Services days, Professional Services days will be charged at the rate set out in the Order Acknowledgment.

3. PAYMENT
3.1 In addition to what is set out in the Agreement, and unless otherwise agreed by the parties and stated in an Order Acknowledgement, one hundred percent (100%) of the Fees for Professional Services shall be invoiced on issue of the Order Acknowledgement and those Fees are due within thirty (30) days of receipt of Op5’s invoice.
3.2 The Fees for Professional Services do not include expenses. Where possible expenses will be agreed with the Customer and they will be invoiced monthly in arrears, with full payment from the Customer due within thirty (30) days of receipt of Op5’s invoice.

4. CUSTOMER DUTIES AND RESPONSIBILITIES
4.1 Customer will make available in a timely manner for Op5’s use, at no charge to Op5, all technical data, computer facilities, programs, files, documentation, test data, sample output, or other information, resources, and personnel required by Op5 as set forth in the applicable document for the performance of the Professional Services. Customer will be responsible for and assumes the risk in respect of any issues or problems resulting from the content, accuracy, completeness, competence, or consistency of all Customer computer facilities, programs, files, documentation, test data, sample output, or other information, resources, and personnel supplied by Customer. Customer will provide, at no charge to Op5, reasonable office space and equipment at Customer’s facilities (such as copiers, computers and system access) as Op5 requires in performing the Services.

5. INTERDEPENDENCIES; CUSTOMER AND THIRD-PARTY DELAYS
5.1 Customer acknowledges that meeting the Target Dates is contingent upon timely completion of activities by Customer as contemplated by the parties including, without limitation, those activities designated to Customer (“Customer Obligation”) in paragraph 3 above, any SOW and/or in the applicable Order Acknowledgement. Customer will immediately advise Op5 in writing as soon as it becomes aware of any developments that may delay completion of a scheduled deliverable including, without limitation, Customer’s failure or inability to perform a Customer Obligation. The Target Dates (though only an estimate) will be equitably adjusted by the parties (but in no event less than a day-for-day adjustment) in writing in the event of: (a) any delay caused by Customer’s failure or inability to perform a Customer Obligation; (b) any delay due to Customer’s request for changes (whether pursuant to a Change Order or otherwise); (c) any delay due to a third-party’s act, failure to act or delay in performing any obligation whatsoever; or (d) any other delay incurred as a result of Customer’s action(s) or omission(s). No such delay will relieve or suspend Customer’s obligation to pay Op5 and, in addition to such payment obligations, Customer will pay for any and all costs and expenses incurred by Op5 relating to re-staffing as a result of any delay caused by Customer.

6. SUBCONTRACTORS
6.1 Op5 may, in its sole discretion, use third-party contractors to fulfill its obligations under this Agreement.

7. VALID TIME PERIOD
7.1 Professional Services days are valid either: for managed projects until the later of: (i) twelve (12) months from the date of the Order Acknowledgement, or (ii) two (2) months following completion of the relevant managed project; or for onsite assistance until twelve (12) months from the date of the Order Acknowledgement (the "Valid Time Period").  
7.2 Any Professional Services days in respect of managed projects ordered and unused following completion of a relevant managed project may be used for other equivalent Professional Services engagement requests during the Valid Time Period. If still unused after the Valid Time Period the unused Professional Services days will be cancelled but not refunded.
7.3 Any Professional Services days in respect of onsite assistance ordered and unused after the Valid Time Period will be cancelled but not refunded.