Terms and conditions

1. Application

1.1 The Terms and Conditions stipulated here are applicable to the provision of services outline in our quotation (Services) by Edusensys Limited a company registered in England and Wales under number 11339126 whose registered office is at Kemp House, 160 City Road, London, United Kingdom, EC1V 2NX (we or us or Service Provider) to the person buying the services (you or Customer) 

1.2 You are deemed to have accepted these Terms and Conditions when you accept our quotation or from the date of any performance of the Service (whichever happens earlier) and these Terms and Conditions and our quotation (the Contract) are the entire agreement between us. 

1.3 You acknowledge that you have not relied on any statement, promise or representation made or given by or on our behalf. These Conditions apply to the Contract to the exclusion of any other terms that you try to impose or incorporate, or which are implied by trade, custom, practice or course of dealing. 

2. Interpretations

2.1 A "business day" means any day other than Saturday, Sunday or bank holiday in England and Wales 

2.2 The headings in these Terms and Conditions are for convenience only and do not affect their interpretation

2.3 Words imparting the singular number shall include the plural and vice-versa 

3. Services

3.1 Placing an Order. Except for Optional Services, an order for Services must be placed using a Sales Order. Otem will prepare the Sales Order, which will contain a description of the type and quantity of the Products being purchased, the fees payable and any implementation or other terms and conditions applying to their supply. A Product is not included in a Sales Order unless it has been specifically referenced therein. A Sales Order shall only be effective when signed by both parties thereto

3.2 Optional Services. A Customer may also purchase Optional Services during the Term by: 

  1. Placing a Sales Order with Otem; 

  2. Customer sending an email to Otem requesting access to an Optional Service; or

3.3 Once the Optional Services are activated for the Customer's use, their use is subject to the terms and conditions of this Agreement, and the authorizing document made available to Customer will be deemed a Sales Order.

3.4 Reporting on Consumption. Otem will use commercially reasonable efforts to advise the Customer once 75% of Included Transactions have been consumed

3.5 Renewal. A Sales Order will expire upon the expiration of the Term, and unless otherwise stated in the Sales Order, the terms of that Sales Order will automatically renew, for the greater of twelve months or the Initial Term, as an Additional Term on identical terms and conditions (including quantity and price) unless either Party notifies the other Party in writing at least thirty (30) days prior to expiration of the Term that it does not intend to renew.

3.6 We warrant that we will use reasonable care and skill in our performance of the Services which will comply with the quotation, including any specification in all material respects. We can make any changes to the Services which are necessary to comply with any applicable law or safety requirement, and we will notify you if this is necessary. 

3.7 We will use our reasonable endeavours to complete the performance of the Services within the time agreed or as set out in the quotation; however, time shall not be of the essence in the performance of our obligations. 

3.8 All of these Terms and Conditions apply to the supply of any goods as well as Services we specify otherwise.

3.9 User Information License; Improvement of Services. Customer hereby grants to Otem a license to use, reproduce, modify, create derivative works from, distribute, perform, transmit, anonymize and display the User Information (including any rights specifically pertaining to biometric information) necessary to develop, provide and improve the Services, including the right for Otem to grant equivalent rights to its service providers that perform services that form part of or are otherwise used to perform the Services. Customer further grants to Otem all necessary rights to perpetually and irrevocably use, reproduce, modify, create derivative works from, distribute, perform, transmit and display User Information in an anonymized or aggregated form that does not identify individual persons or organizations (such as, by way of example and not by way of limitation, numbers of verifications) perpetually, in order to compile statistics regarding use of the Services and/or to develop and improve the Services. Otem is hereby instructed to use User Information to improve its Services, including through machine learning techniques. 

4. Restrictions

4.1 Customer has no right to and shall not attempt to interfere with or disrupt the Services or the Licensed Work or attempt to gain access to any systems or networks that connect thereto (except as required to access and use the Services). Customer has no right to and must not:

  1. Decompile, disassemble, or otherwise reverse engineer or attempt to reconstruct or discover, in any way, any source code, programming, algorithms, design structure, interoperability interfaces, concepts, construction methods underlying ideas, or file formats of the Licensed Work, for any purpose;

  2. Remove any identification markings, including but not limited to copyright notices and trademarks, from the Licensed Work;

  3. Make any modification or enhancement to the Licensed Work, or any portion thereof;

  4. Copy, sell, resell, OEM, lease, assign, distribute or transfer in any manner or form, in whole or in part, the Licensed Work or Services;

  5. Use the Licensed Work to develop or distribute any software product that competes in the marketplace with the Products or Services; or

  6. Transfer any of its rights hereunder.

4.2 Customer acknowledges and agrees that Otem does not monitor or police data transmitted through the Services and that Otem shall not be responsible for the content of any such communications or transmissions.  Customer shall use the Services exclusively for authorized and legal purposes, consistent with all applicable laws, regulations and the rights of others.

4.3 Customer further agrees to take all reasonable steps to ensure that unauthorized persons will not have access to any of the Licensed Work and that all authorized persons having access will refrain from any disclosure, duplication or reproduction of the Licensed Work except to the extent permitted under this Agreement.

5. Your Obligations

5.1 You must obtain any permissions, consents, licenses or otherwise that we need and must give us with access to any and all relevant information, materials, properties and any other matters which we need to provide the Services 

5.2 If you do not comply with clause 4.1, we can terminate the Services 

5.3 We are not liable for any delay or failure to provide the services if this is caused by your failure to comply with the provisions of this section (Your obligations) 

6. Fees

6.1 The fees (Fees) for the Services are set out in the quotation and are on a time and material basis 

6.2 In addition to the Fees, we can recover from you a) reasonable incidental expenses including, not limited to, travelling expenses, hotel costs, subsistence and any associated expenses, b) the costs of services provided by third parties and required by us for the performance of the Services, and c) the cost of any materials required for the provision of the Services. 

6.3 You must pay us for any additional services provided by us that are not specified in the quotation in accordance with our then current, applicable daily rate in effect at the time of performance or such other rates as may be agreed between us, The provisions of clause 5.2 are also applicable to these additional services. 

6.4 The Fees are inclusive of any applicable VAT and other taxes or levies which are imposed or charged by any competent authority.  

6.5 Unused Transactions. Customer acknowledges and agrees that any unused or unprocessed Transactions (or related services) under the Included Transactions limitation set forth in a Sales Order ("Unused Transactions") will automatically expire at the end of the Initial Term or the then-applicable Additional Term and Customer shall not be entitled to a refund or credit for any Unused Transactions nor will Customer be entitled to rollover any Unused Transactions into an Additional Term or another or future agreement or arrangement.

7. Cancellation

7.1 We can withdraw, cancel or amend a quotation if it has not been accepted by you, or if the Services have not started, within a period of 14 days from the date of the quotation, (unless the quotation has been withdrawn). 

7.2 Either we or you can cancel an order for any reason prior to your acceptance (or rejection) of the quotation. 

7.3 If you want to amend any details of the Services you must tell us in writing as soon as possible. We will use reasonable endeavours to make any required changes and additional costs will be included in the Fees and invoiced to you. 

7.4 If, due to circumstances beyond our control, including those set out in the clause below (Circumstances beyond a party's control), we have to make any change in the Services or how they are provided, we will notify you immediately. We will use reasonable endeavours to keep any such changes to a minimum. 

8. Payments

8.1 We will invoice you for payment of the Fees either: 

  1. When we have completed the Services; or 

  2. On the invoice dates set out in the quotation 

8.2 You must pay the Fees due within 30 days of the date of our invoice or otherwise in accordance with any credit terms agreed between us. 

8.3 Time for payment shall be of the essence of the Contract 

8.4 Without limiting any other right or remedy we have for statutory interest, if you do not pay within the period set out above, we will charge you interest at the rate of 5% per annum above the base rate of the Bank of England from time to time on the amount outstanding until payments is received in full. 

8.5 All payments due under these Terms and Conditions must be made in full without any deduction or withholding except as required by law and neither of us can assert any credit, set-off or counterclaim against the other in order to justify withholding payment of any such amount in whole or in part. 

8.6 If you do not pay within the period set out above, we can suspend any further provision of the Services and cancel any future services which have been ordered by, or otherwise arranged with, you. 

8.7 Receipts for payment will be issued by us only at your request

8.8 All payments must be made in British Pounds unless otherwise agreed in writing between us. 

9. Warranties

9.1 Service Warranties.  Otem warrants to Customer that the Services will be performed in a professional manner, consistent with generally accepted industry standards, and that the Services will substantially conform with the Documentation. If Otem fails to perform the Services in accordance with the preceding warranty the sole and exclusive remedy of Customer for a breach of this limited warranty by Otem shall be to require Otem to use commercially reasonable efforts to re-perform the Services as soon as is reasonably practicable, but in no event, later than fifteen (15) days from the date Customer notifies Otem of the same.

9.2 Mutual Warranties. In addition, each Party represents and warrants that (a) it has all right and authority necessary to enter into this Agreement, and (b) it has all necessary licenses, permits and registrations required to perform its obligations hereunder.

9.3 Disclaimer.  Otem does not warrant that the Services will be provided without error. Customer assumes sole responsibility and liability for results obtained from the use of the Products and for conclusions drawn from such use.  Otem shall have no liability for any claims, losses, or damage caused by errors or omissions in any information provided to Otem by Customer or Users in connection with the Products or Services or any actions taken by Otem at the Customer's direction. 

10. Termination

10.1 We can terminate the provision of the Services immediately if you: 

  1. Commit a material breach of your obligations under these Terms and Conditions; or 

  2. Fail to make any payment due under the Contract on the due date for payment; or 

  3. Are or become or, in our reasonable opinions, are about to become, the subject of a bankruptcy order or take advantage of any other statutory provision for the relief of insolvent debtor; or 

  4. Enter into a voluntary arrangement under Part 1 of the insolvency Act 1986, or any other scheme or arrangement is made with its creditors; or 

  5. Convene any meeting of your creditors, enter into voluntary or compulsory liquidation, have a receiver, manager, administrator or administrative receiver appointed in respect of your assets or undertakings or any part of them, any documents are filed with the court for the appointment of an administrator in respect of you, notice of intention to appoint an administrator given by you or any of your directors or by a qualifying floating charge holder (as defined in para.14 of Schedule B1 of the Insolvency Act 1986), a resolution is passed or petition presented to any court for your winding up or for the granting of an administration order in respect of you, or any proceeding are commenced relating to your insolvency or possible insolvency.

10.2 Survival.  Any payment obligations under the Sales Order(s) and all provisions that by their nature are intended to survive termination of this Agreement and shall continue in effect after expiry or termination of this Agreement.

10.3 Payments on Termination. Termination of this Agreement will not relieve Customer from any obligation to pay Otem any amount contracted prior to the termination date.

11. Intellectual Property

11.1 We reserve all copyright and any other intellectual property rights which may subsist in any goods supplied in connection with the provision of the Services. We reserve the right to take any appropriate action to restrain or prevent the infringement of such intellectual property rights. 

11.2 Customer agrees not to use the name "Otem" or any of the Product names or marks (or any confusingly similar name or symbol), in whole or in part, as part of Customer's business or trade name nor shall it register or use internet domain names or social media websites with the use of the "Otem" name.

12. Liability and Indemnity

12.1 Our liability under these Terms and Conditions, and in breach of statutory duty, and in tort or misrepresentation or otherwise, shall be limited as set out in this section. 

12.2 The total amount of our liability is limited to the total amount of Fees payable by you under the Contract. 

12.3 We are not liable (whether caused by our employees, agents or otherwise) in connection with our provision of the Services or the performance of any of our other obligations under these Terms and Conditions or the quotation for: 

  1. Any indirect, special or consequential loss, damage, costs, or expenses or; 

  2. Any loss of profits; loss of anticipated profits; loss of business; loss of data; loss of reputation or goodwill; business interruption; or, other third party claims; or

  3. Any losses arising directly or indirectly from the choice of Services and how they will meet your requirements of your use of Services or any goods supplied in connection with the Services. 

12.4 You must indemnify us against all damage, costs, claims and expenses suffered by us arising from any loss or damage to equipment (including that belonging to third parties) caused by you or your agents or employees. 

12.5 Nothing in these Terms and Conditions shall limit or exclude our liability for death or personal injury caused by our negligence, or for any fraudulent misrepresentation, or for any other matters for which it would be unlawful to exclude or limit liability. 

## 13. Data Protection

13.1 Storage of Data. Otem will store User Information scanned for the retention period specified by the Customer in the Otem Customer Portal (if any). Otem will store User Information unless Customer has instructed the Otem Support Team to deactivate storage of data.

13.2 Access to Stored Data.  During the Term Customer can, via the Customer Portal, access, download and control (including delete) User Information, including extracted data and images for each individual Transaction, unless and until deleted by the Customer. Upon termination of this Agreement for any reason, access to the Customer Portal (including any data stored therein), will be revoked

13.3 Deletion. Customer may delete User Information at any time via the Customer Portal. Otem may delete any stored items in storage upon expiration or termination of this Agreement. Otem's responsibility for storing and deleting items is exclusively stated in Section 13.
13.4 Customer Portal. Access to the Customer Portal is provided as part of the Services. Upon termination of this Agreement for any reason, access to the Customer Portal and any data therein will be revoked.  Otem  logs access to the Customer Portal, which contains the contact information of authorised users. Customer hereby authorises Otem to retain access logs for the Term.

13.5 When supplying the Services to the Customer, the Service Provider may gain access to and/or acquire the ability to transfer, store or process personal data of employees of the Customer. 

13.6 The parties agree that where such processing of personal data takes place, the Customer shall be the 'data controller' and the Service Provider shall be the 'data processor; as defined in the General Data Protection Regulation (GDPR) as may be amended, extended and/or re-enacted from time to time
13.7 For the avoidance of doubt, 'Personal Data', 'Processing', 'Data Controller', 'Data Processor' and 'Data Subject' shall have the same meaning as in the GDPR. 

13.8 The Service Provider shall only Process Personal Data to the extent reasonably required to enable it to supply the Services as mentioned in these terms and conditions or as requested by and agreed with the Customer, shall not retain any Personal Data longer than necessary for the Processing and refrain from Processing any Personal Data for its own or for any third party's purposes. 

13.9 The Service Provider shall not disclose Personal Data to any third parties other than employees, directors, agents, sub-contractors or advisors on a strict 'need-to-know' basis and only under same (or more extensive) conditions as set out in these terms and conditions or to the extent required by applicable legislation/or regulations. 

13.10 The Service Provider shall implement and maintain technical and organisational security measures as are required to protect Personal Data Processed by the Service Provider on behalf of the Customer. 

13.11 Further information about the Service Provider approach to data protection are specified in its Data Protection Policy, which can be found on our website: www.otem.co.uk For any enquiries or complaints regarding data privacy, you can email: privacy@otem.co.uk (dedicated email required)

14. Circumstance beyond a party's control

14.1 Neither of us is liable for any failure or delay in performing our obligations where such failure or delay results from any cause that is beyond the reasonable control of that party. Such causes include, but are not limited to: industrial action, civil unrest, insurrection, fire, flood, storms, earthquakes, acts of terrorism, acts of war, acts of God, epidemics, pandemics, public health emergencies, quarantine, material shortages, governmental action or any other event that is beyond the control of the party in question. If the delay continues for a period of 90 days, either of us may terminate or cancel the Services to be carried out under these Terms and Conditions. 

15. Communications 

15.1 All notices under these Terms and Conditions must be in writing and signed by, or on behalf of, the party giving notice (or a duly authorised officer of that party). 

15.2 Notices shall be deemed to have been duly given: 

  1. When delivered, if delivered by courier or other messenger (including registered mail) during the normal business hours of the recipient; 

  2. When sent, if transmitted by fax or email and a successful transmission report or return receipt is generated; 

  3. On the fifth business day following mailing, if mailed by national ordinary mail; or

  4. On the tenth business day following mailing, if mailed by airmail. 

15.3 All notices under these Terms and Conditions must be addressed to the most recent address, email address or fax number notified to the other party. 

16. Reference for Otem's Services

16.1 Customer hereby authorizes Otem to reference and/or include Customer as part of Otem's marketing and advertising efforts without further review or advance approval, including the following:

  1. List Customer as a Otem customer on social media sites, including Twitter, LinkedIn, Facebook, Otem's corporate blog, or any other social media site;

  2. Issue a press release including Customer as a client of Otem (to include company name and description only; may appear alongside other customers);

  3. Issue a press release including Customer as a client of Otem (general press release not focused on Customer, but referring to Customer as a customer, and including Customer's name, description, and editorial comments; may appear alongside other customers);

  4. Provide a quote for inclusion in a Otem-issued press release to be approved by Customer in good faith within 120 days of contract;

  5. Use of Customer's name and logo in Otem marketing materials including corporate marketing collateral, website, social media sites, and other advertising campaigns;

  6. Provide quotes for inclusion in Otem marketing materials including corporate marketing collateral, website, social media sites, and other advertising campaigns to be approved by Customer in good faith within 120 days of contract;

  7. Customer case study/application brief (success story to be posted on website, included in press kits and/or pitched to publications as potential articles) to be approved by Customer in good faith within 120 days of contract; and

  8. Participate in a video testimonial highlighting Customer's relationship and experiences with Otem's team, products and services if approved by Customer.

17. Disputes

17.1 Dispute Procedure.  The Parties shall resolve any dispute, controversy or claim arising out of or relating to this Agreement, or the breach, termination or invalidity hereof (each, a "Dispute"), under the provisions of Section 17.2 The procedures set forth in Sections 17.2 shall be the exclusive mechanism for resolving any Dispute that may arise from time to time.

17.2 Escalation.  The Parties shall first attempt in good faith to resolve any Dispute by negotiation and consultation between themselves. In the event that such Dispute is not resolved on an informal basis within 14 days after one Party provides notice to the other Party of such Dispute , either Party may, by written notice to the other Party , refer such dispute to the Chief Operating Officer (or equivalent) of each Party (or their nominee designated in a written notice to the other Party).

18. Waiver

18.1 No delay, act or omission by a party in exercising any right or remedy will deemed a waiver of that, or any other, right or remedy nor stop further exercise of any other right, or remedy

19. Severance

19.1 If one or more of these Terms and Conditions is founds to be unlawful, invalid or otherwise unenforceable, that/those provisions will be deemed severed from the remainder of these Terms and Conditions (which will remain valid and enforceable) 

20. Law and jurisdiction

20.1 This agreement shall be governed by and interpreted according to the law of England and Wales and disputes arising under the Agreement (including non-contractual disputes or claims) shall be subject to the exclusive jurisdiction of the English and Welsh courts. 

21. General Provisions

  1. 1 No Partnership. This Agreement does not create any relationship of association, partnership, joint venture or agency between the Parties.  Neither Party will have any right or authority to assume, create or incur any liability or obligation of any kind against or in the name of the other Party.

22.2 Entire Agreement.  This Agreement sets forth the entire agreement and understanding between the Parties with respect to the subject matter in this Agreement.  This Agreement supersedes all previous discussions and negotiations between the Parties and supersedes and replaces any and every other agreement, which may have existed between Otem and Customer with respect to the contents of this Agreement. Any purchase order issued by Customer will not change or add to the terms and conditions of this Agreement.

22.3 Relationship Between the Parties.  Work will be done at either Party's respective premises, unless otherwise agreed.  If work is done at Customer's premises, Customer agrees to provide Otem personnel with a safe workplace consistent with that provided to its own employees. Customer also agrees to provide reasonable access to key Customer personnel necessary for Otem to perform the Services. Otem personnel will observe all safety and access practices and other applicable rules in effect at such a workplace, provided that reasonable notice of the rules has been given to Otem.

22.4 Amendments.  Except to the extent and in the manner specified in this Agreement, any modification or amendment of any provision of this Agreement must be in writing and bear the signature of the duly authorized representative of each Party.

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