These Conditions may be updated from time to time and the updated version will be effective as soon as it is accessible. You are responsible for regularly reviewing these Conditions so that you are aware of any changes to them.
1.1 In these Conditions, the following words have the following meanings:
Confidential Information: has the meaning given to it in Condition 8;
Client, you: the party wishing to use the System;
Client Content: all material uploaded to the System by the Client, including all documents, images, data and databases;
Fee: the monthly fee due to Omono to access and use the System calculated in accordance with the provisions of the Fee Page;
IP Rights: any patent, trade mark, registered design or any application for registration of the same, or the right to apply for registration of the same, any copyright or related rights, database right, design rights, rights in trade, business or domain names, rights in trade dress, rights in inventions, rights in confidential information or know-how or any similar of equivalent rights in any part of the world;
Omono, us: Omono Technologies Limited a company registered in England and Wales with company number 8447591 and registered office at Odyssey House, Durban Road, Bognor Regis, West Sussex PO22 9RH;
System: Omono’s system made available to the Client, including all error corrections, patches, new releases and new versions together with all System Documents;
System Administrator: has the meaning given to it in Condition 2.2;
System Documents: any documents created by the System based on your Client Content;
Third Party Module: any third party platform that can be accessed through the System;
Third Party Module Provider: the owner or provider of the Third Party Module;
User: your employees authorised to use the System; and
Working Day: a day other than a Saturday, Sunday or public holiday in England.
1.2 Words in the singular include the plural and in the plural include the singular.
1.3 The headings shall not affect the interpretation of these Conditions.
1.4 References to Conditions are references to the numbered provisions of these Conditions.
1.5 Unless a right or remedy of a party is expressed to be an exclusive right or remedy, the exercise of it by a party is without prejudice to that party’s other rights and remedies.
1.6 Any phrase introduced by the words including shall be construed as illustrative and shall not limit the generality of the related general words.
2.1 If you wish to register to use the System, you must be entitled to represent your company or other organisation and bind them to these Conditions. You must provide us with accurate and current information and if there is any change to the information that you provide to us, you must immediately update your account. At our request, you shall promptly provide written evidence of the validity of information that you provide to us. You are responsible for configuring your own systems appropriately to access and use the System.
2.2 You shall designate one or more contacts to be responsible for communication (the “System Administrator”). Each System Administrator shall be entitled to bind the Client to these Conditions. Each System Administrator may establish accounts for Users and on 30 days’ notice, may remove accounts for Users. You are solely responsible for determining the skill, competence, character and other attributes of your System Administrators and other Users.
2.3 You shall ensure that each User shall acknowledge the obligations and restrictions under these Conditions and agrees to comply with the same. You shall immediately notify us if you become aware of any breach of the terms of these Conditions by any User.
2.4 You shall be responsible for all access to and use of the System by Users. You shall be responsible for ensuring the security and confidentiality of all log-on identifiers, including usernames and passwords, assigned to, or created by, you or any User in order to access or use the System and you acknowledge and agree that you are solely responsible for all activities that occur under such log-in identifiers. You shall promptly notify us upon becoming aware of any unauthorised access to or use of the System, and provide all reasonable assistance to bring an end to such unauthorised access or use.
3.1 If you wish to access any Third Party Module, you must have a fully paid up, current licence from the relevant Third Party Module Provider. You warrant and represent that you shall comply with the licence terms set by Third Party Module Provider. You shall immediately notify us if your licence to access such Third Party Module ceases for any reason whatsoever and you agree that in such circumstances, you shall cease to access the Third Party Module and at our option we shall be entitled to terminate these Conditions.
3.2 If at any time a Third Party Module Provider ceases to permit Omono to integrate with all or part of the Third Party Module, you agree that we shall be entitled to amend your access to the System and the Third Party Module accordingly. In such circumstances, we shall have no liability or responsibility to you in any manner whatsoever, including any obligation to refund any part of the Fee.
3.3 You agree that any Third Party Module Provider shall be entitled to access your Client Content.
3.4 We shall not be liable for the acts or omissions of any Third Party Module Provider including use of the Client Content by any Third Party Module Provider.
4.1 Subject to these Conditions and receipt of the Fee, Omono grants to you the non-exclusive, non-transferable right and licence to access and use the System, including the System Documents, for your lawful, business purposes.
4.2 Only your Users shall be entitled to exercise the rights granted to you under Condition 4.1 and you have no right to sub-license your rights under Condition 4.1.
4.3 You shall comply with all reasonable instructions of Omono relating to the System. Omono may, at its sole discretion, provide upgrades and new releases of the System from time to time and shall use its endeavours to provide 48 hours notice of any changes to the System.
4.4 If at any time your access to and/or use of the System is excessive and as a result impacts on other clients’ ability to use the System, we shall notify you accordingly and you shall promptly take appropriate steps to remedy such use. We reserve the right to increase the Fee due to any such excessive use.
4.5 You shall not, and shall not permit or assist any third party to:
(a) attempt to view, access or copy any content or data other than that to which the Client is authorised to access;
(b) translate, adapt, disassemble, reverse engineer, decompile or copy the whole or any part of the System, nor arrange or create derivative works based on the System except to the extent permitted by law not capable of exclusion by agreement;
© make for any purpose including error correction, any modifications, adaptions, additions or enhancements to the System;
(d) combine, match or merge the whole or any part of the System with or incorporate the System into any third party code;
(e) sell, purport to assign or license access to the System;
(f) attempt to undermine the security of the System;
(g) access the System to build a competitive product or service or to build a product using similar ideas, features, functions or graphics;
(h) make available online all or part of the System through the Internet, or any intranet; and/or
(i) remove or alter any copyright or other proprietary notice on any part of the System and/or the System Documents.
4.6 You agree that we shall be entitled record your access and use of the System for the purposes of diagnosing and fixing problems, training and support. We may transfer such records to third parties for the purposes of analysis and processing and we shall use reasonable endeavours to ensure that such third parties keep confidential such records.
5.1 Omono shall use reasonable endeavours to make the System available at all times, but the Client acknowledges that there may be occasions when access to the System may be interrupted, including for scheduled maintenance or upgrades, for emergency repairs, or due to failure of telecommunications links and/or equipment. Omono shall use reasonable endeavours to comply with the Service Level Agreement for the System. The current Service Level Agreement is set here.
5.2. Omono reserves the right to remove any content or features from the System for any reason, without prior notice, and shall have no liability or responsibility to the Client in any manner whatsoever in such circumstances, save to refund pro-rata any Fees paid in advance in respect of any significant content or features suspended or stopped that you previously accessed and used. We shall calculate such pro-rata refund at our sole discretion, provided that we shall act reasonably in doing so.
6.1 You warrant and represent that the Client Content will not:
(a) breach the provisions of any law, statute or regulation including any data protection laws and/or regulations;
(b) infringe the IP Rights or other legal rights of any person;
© be made in breach of any legal duty owed to a third party, such as a contractual duty or a duty of confidence;
(d) be deliberately or knowingly false, inaccurate or misleading; and/or
(e) give rise to any cause of action against Omono.
6.2 You further warrant and represent that you shall use industry standard virus detection software to try to block the uploading of Client Content that contains viruses or other malicious code.
6.3 Omono is not responsible and accepts no liability for Client Content. Omono does not actively monitor any Client Content, but you agree that at any time Omono shall be entitled to delete any Client Content that Omono reasonably believes is in breach of Condition 6.1.
6.4 You grant to us a non-exclusive, worldwide, irrevocable, royalty-free right, together with the right to sublicense to Third Party Module Providers, to reproduce all IP Rights in the Client Content for the purposes of these Conditions and in order to make the System including the Third Party Modules available to you.
6.5 You agree that the System Documents are based on and reflect the information in the Client Content. Accordingly, you must make sure that the Client Content is accurate and complete. You agree to review the System Documents before you use and/or distribute them, and you shall notify Omono of any errors in the System Documents. We shall promptly amend such errors, except where such errors arise as a result of any information in the Client Content. We shall have no liability for any errors in the System Documents based on the Client Content.
6.6 In the event of any loss or damage to Client Content, your sole and exclusive remedy shall be for Omono to use reasonable commercial endeavours to restore the lost or damaged Client Content from the latest back up of such Client Content maintained by Omono. You acknowledge and agree that this process will overwrite the Client Content stored on the System prior to the restoration. Accordingly, you shall separately maintain up-to-date copies of the Client Content.
7.1 Any free trial that we may offer from time to time begins on the date that the first System Administrator registers with the System. On completion of any free trial, we shall automatically take payment of the Fee using the payment details you have provided to us. If you do not wish to continue to access the System following the free trial, you must notify us at least 5 days before the end of your free trial. The Fees are calculated in accordance with the Fee Page.
7.2 If you fail to pay an instalment of the Fee by the due date, we reserve the right to:
(a) claim costs and interests on any outstanding amount in accordance with the Late Payment of Commercial Debts (Interest) Act 1998;
(b) cease to make the System available to you; and/or
© delete all Client Content.
7.3 You acknowledge and agree that we shall be entitled to increase the Fees at any time on written notice to you. Your continued access and use of the System shall constitute your acceptance of the increased Fees.
8.1 You agree that no IP Rights that subsist in the System and/or the System Documentation shall transfer to you under these Conditions. We acknowledge that you retain the IP Rights in the Client Content.
8.2 You grant to Omono the right and licence to use your name and any associated logo in any and all promotional and marketing materials, including online materials.
8.3 You shall promptly notify Omono of any claim, notification or allegation that you receive that your use of the System infringes the IP Rights of any third party (a Claim). You shall:
(a) not make any admission of liability, agreement, settlement or compromise in relation to a Claim without Omono’s prior written consent;
(b) give to Omono and its professional advisers all reasonable assistance as may be required in relation to a Claim;
© at Omono’s request, give Omono the exclusive control and right to defend a Claim and make settlements in relation to a Claim; and
(d) mitigate your losses in relation to a Claim, including where requested to do so by stopping using the System.
8.4 On receipt of a notice under Condition 8.3, Omono shall at its sole expense either procure for the Client the right to continue accessing and using the System or modify or replace the infringing part of the System without to avoid the infringement.
9.1 Confidential Information shall mean all information whether written or oral and in whatever medium and relates to the business, products, financial and management affairs, Clients, employees or authorised agents, plans, proposals, strategies or trade secrets disclosed by one party (the Disclosing Party) to the other party (the Receiving Party).
9.2 The Receiving Party shall not, and shall ensure that its employees shall not, use copy or disclose any of the Confidential Information of the Disclosing Party except to carry out its obligations and exercise its rights under the Conditions.
9.3 The Receiving Party shall only disclose the Disclosing Party’s Confidential Information to those of its employees to the extent that they need to know the same in order to carry out its obligations under the Conditions and where those employees are bound by written obligations of confidentiality and non-use and such obligations apply to the Confidential Information disclosed to them.
9.4 The provisions of Conditions 9.1, 9.2 and 9.3 shall not apply to any Confidential Information which:
(a) is or becomes generally available to the public other than as a result of any act or omission of the Receiving Party;
(b) is already in or comes into the possession of the Receiving Party from a person lawfully in possession of the information and owing no obligation of confidentiality to the Disclosing Party in respect of the information; or
© is required to be disclosed by any court, government or administrative authority competent to require disclosure.
10.1 Each of the parties represents, warrants and undertakes that:
(a) it has the right, power and authority to enter into these Conditions and to perform fully all of its obligations under these Conditions; and
(b) the performance of these Conditions shall not breach any other agreement entered into by it.
10.2 Subject to these Conditions, Omono warrants that it shall:
(a) provide access to the System with reasonable skill and care; and
(b) use industry standard security software in relation to the System.
10.3 You warrant and represent that you are not a consumer and that you are acquiring the right to access and use the System for the purposes of a business. Accordingly, to the maximum extent permitted by law, any statutory consumer guarantees or legislation intended to protect non-business consumers in any jurisdiction does not apply to the licence of the System and/or these Conditions.
10.4 You warrant that you have not relied on any oral representation made by or on behalf of Omono, or on any descriptions, illustrations or specifications contained in any materials, including online materials, produced by Omono which are only intended to convey a general idea of the System. You confirm that in your opinion, the System is fit for your purposes.
10.5 You shall indemnify Omono its directors, representatives and agents from and against all direct and indirect costs, claims, losses, expenses, damages and liabilities however arising as a result of or in connection with:
(a) any failure by you to obtain or renew a licence in accordance with Condition 3.1; and/or
(b) use by Omono of the Client Content in accordance with the terms of these Conditions.
11.1 YOU ACKNOLWEDGE THAT THE SYSTEM IS PROVIDED FOR INFORMATION ONLY AND SHOULD NOT BE RELIED ON AS TAX, ACCOUNTING, LEGAL OR FINANCIAL ADVICE, RECOMMENDATION, ARRANGEMENT OR OPINION.
11.2 THE SYSTEM IS PROVIDED ON AN “AS IS” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY LAW AND SUBJECT TO CONDITION 10, ALL IMPLIED WARRANTIES, TERMS AND CONDITIONS RELATING TO THE SYSTEM (WHETHER IMPLIED BY STATUTE, COMMON LAW OR OTHERWISE), INCLUDING ANY WARRANTY, TERM OR CONDITION AS TO ACCURACY, COMPLETENESS, SATISFACTORY QUALITY, PERFORMANCE, FITNESS FOR PURPOSE, AVAILABILITY AND NON-INFRINGEMENT ARE EXCLUDED.
11.3 OMONO WILL NOT BE LIABLE, IN CONTRACT, TORT (INCLUDING NEGLIGENCE), UNDER STATUTE OR OTHERWISE, AS A RESULT OF OR IN CONNECTION WITH THE SYSTEM FOR ANY:
(A) ECONOMIC LOSS (INCLUDING LOSS OF REVENUES, PROFITS, CONTRACTS, BUSINESS OR ANTICIPATED SAVINGS);
(B) LOSS OF REPUTATION OR GOODWILL;
© LOSS OF DATA OR CONTENT, INCUDING CLIENT CONTENT; AND/OR
(D) SPECIAL, INDIRECT OR CONSEQUENTIAL LOSS EVEN IF ADVISED OF THE POSSIBILITY OF SUCH LOSSES.
11.3 OMONO’S AGGREGATE LIABILTY TO THE CLIENT UNDER THESE CONDITIONS OR OTHERWISE IN RESPECT OF THE SYSTEM SHALL BE LIMITED TO THE FEES RECEIVED BY OMONO FROM THE CLIENT FOR THE SYSTEM DURING THE 6 MONTHS BEFORE THE DATE THE CLAIM AROSE.
11.4 Nothing in these Conditions shall limit or exclude a party’s liability for death or personal injury caused by negligence, fraud, fraudulent misrepresentation or any other loss that cannot lawfully be excluded or limited.
12.1 Either party may terminate these Conditions, at any time, immediately by giving the other written notice if the other:
(a) materially breaches any term of these Conditions and it is not possible to remedy that breach;
(b) materially breaches any term of these Conditions and it is possible to remedy that breach, but the other fails to do so within 10 Working Days of being requested in writing to do so; or
© becomes insolvent, makes composition with its creditors, has a receiver or administrator of its undertaking or the whole or a substantial part of its assets appointed, or an is order made, or an effective resolution is passed, for its administration, receivership, liquidation, winding-up or other similar process, or has any distress, execution or other process levied or enforced against the whole or a substantial part of its assets, or is subject to any proceedings which are equivalent or substantially similar to any of the foregoing under any applicable jurisdiction, or ceases to trade or threatens to do so.
For the purposes of this Condition 12.1 in order for it to be possible to remedy a breach it must be possible to take steps so as to put the other party into the same position which (save as to the date) it would have been in if the breach had never occurred.
12.2 The Client shall be entitled to terminate these Conditions at any time on 30 days’ notice to Omono, provided that no refund of any Fee paid shall be due to the Client following such termination.
12.3 On termination of these Conditions for any reason:
(a) you shall cease to access the System;
(b) Omono may delete all Client Content and the System Documents, provided that subject to payment of an additional fee, we shall provide you from the latest version of the Client Content and System Documents maintained by Omono for you.
12.4 The following Conditions shall remain in force notwithstanding termination: Conditions 6.1, 6.2 (Client Content), 8.1, 8.2 (IP Rights), 9 (Confidential Information), 10.1, 10.3, 10.4, 10.5 (Warranties), 11 (Disclaimer, Limit of Liability), 12.3, 12.4 (Termination), 14 (Dispute Resolution), 15 (General) and 16 (Governing Law & Jurisdiction).
13.1 For the purposes of this Condition 13, an event of Force Majeure means any event beyond the reasonable control of either party, including change in laws or regulations, war, invasion, armed conflict, terrorism, strike, lock-out, labour dispute, failure of suppliers or subcontractors, riot, civil commotion, accident, act of God, fire, flood and storm.
13.2 If a party is prevented, hindered or delayed from or in performing any of its obligations under this Agreement by an event of Force Majeure, the affected party’s obligations under this Agreement are suspended without liability while the event of Force Majeure continues and to the extent that it is prevented, hindered or delayed.
13.3 If performance of any obligation under this Agreement is prevented, hindered, or delayed due to an event of Force Majeure either party shall be entitled to terminate these Conditions on written notice to the other party.
13.4 The provisions of Condition 13 shall not be relied on in relation to the inability to pay any Fees due under these Conditions.
14.1 If a dispute arises between the parties under these Conditions, then within 5 Working Days of the dispute arising, the dispute shall be escalated by each of the parties to a director. If the directors are unable to resolve the dispute within 10 Working Days, then the directors shall refer the dispute to the chief operating officer, or such person of equivalent seniority. If such persons are unable to resolve the dispute within a further 10 Working Days, then the parties shall be entitled to pursue legal action under Condition 16.
14.2 Nothing in Condition 14.1 shall prevent a party taking action under Condition 16 in respect of misuse of the System.
15.1 These Conditions contain the entire agreement of the parties with respect to the access to the System and supersede all prior agreements and representations, standard conditions or other implied conditions, whether written or oral, with respect to the subject matter of these Conditions.
15.2 The Client shall not assign or delegate its rights or obligations under these Conditions, in whole or in part, to any third party by operation of law or otherwise, without the prior written consent of Omono. Any attempted assignment or delegation that does not comply with this Condition 15.2 shall be of no effect.
15.3 Any failure to enforce any provision of these Conditions shall not constitute a waiver thereof or of any other provision.
15.4 If any provision of these Conditions is found to be unenforceable, the remainder shall be enforced as fully as possible and the unenforceable provision shall be deemed modified to the limited extent required to permit its enforcement in a manner most closely approximating the intention of the parties.
15.5 Nothing in these Conditions shall create or imply an agency, partnership or joint venture between the parties. Neither party shall act or describe itself as the agent of the other party nor shall either party have or represent that it has any authority to make commitments on behalf of the other.
16.1 These Conditions are governed by and will be construed in accordance with the laws of England and Wales.
16.2 The parties submit to the exclusive jurisdiction of the courts of England and Wales in relation to any legal actions or proceedings arising out of or in connection with these Conditions, save that this submission will not preclude any party from applying to any other court having jurisdiction for urgent or interim relief in aid of proposed or pending proceedings in England.
This Service Level Agreement was last updated 5 October 2017.
1. Omono shall use commercially reasonable efforts to ensure that the System is available 99.95%, measured monthly, excluding public holidays and weekends and scheduled maintenance.
2. Downtime will not accrue where the non-availability is due to:
(a) A cause beyond Omono’s reasonable control;
(b) Any scheduled, notified or emergency downtime;
© A fault on the Client’s network or own equipment configuration;
(d) A fault or incident caused within the Client’s own infrastructures or configuration of said infrastructures causing the suspension of the System and/or hardware failure;
(e) A fault/bug in the Client’s own software such as firmware, operating system, web browser, infrastructure software or the Client’s own infrastructures or configuration of such infrastructures causing suspension of the System and/or hardware failure;
(f) Any incidents and downtime caused by the Client’s own management of the System;
(g) Third party network, service and/or integration issues or suspensions;
(h) Downtime caused by the Client accessing the System over the internet, where the downtime is directly attributable to the public network itself.
3. The Client’s sole and exclusive remedy for any downtime shall be to contact Omono as set out in this Service Level Agreement and permit Omono to carry out such maintenance as is deemed necessary by Omono.
4. Omono shall continuously monitor the System uptime levels and shall make available its uptime status to the Client upon request.
Technical Contacts and Incident Response
5. Omono shall provide regularly staffed email and phone support in the UK during its working hours of 9am to 5.30pm Monday to Friday excluding public Holidays. The contact details and response time for general support are as detailed below:
Urgent: 3 working hours
General: 24 working hours