1. Definitions and Interpretation
1.1 Unless the context requires otherwise, in these Terms and Conditions and in an Order:
| “Additional Data Storage Charges” | has the meaning given to it in clause 3.6(b). |
| “Agreement“ | means a contract between Okra Datacom and the Customer made up of an Order, these Terms and Conditions and any documents expressly referred to in either of them, and any amendments to that contract from time to time. |
| “Business Days” | Mondays to Fridays |
| “Call Charges” | means the variable charges that are payable by the Customer for telephone calls |
| “Charges“ | means: (i) the Subscription Charges; (ii) the Call Charges; and (iii) the Additional Data Storage Charges, or, as required by the context, either of them. |
| “Customer” | means the person or entity identified as such in an Order. |
| “Customer Data” | means any data provided by the Customer to Okra Datacom under the Agreement. |
| “Customer Personal Data” | means any Personal Data provided by the Customer to Okra Datacom under the Agreement. |
| “Confidential Information“ | means any information disclosed by either party to the other party during the Term (whether in writing, orally or otherwise) that at the time of disclosure is either marked as “confidential” or should reasonably be understood by the receiving party to be confidential. |
| “Data Controller” | has the meaning given to it in the Data Protection Legislation. |
| “Data Processor” | has the meaning given to it in the Data Protection Legislation. |
| “Data Protection Legislation” | means: (i) the EU Data Protection Directive (Directive 95/46/EC), the Data Protection Act 1998 and Electronic Communications (EC Directive) Regulations 2003; (ii) with effect from 25th May 2018, the EU General Data Protection Regulation (Regulation (EU) 2016/679); and (iii) any other data protection laws and regulations, orders and any codes of practice, guidelines and recommendations issued by the Information Commissioner’s Office or any replacement or equivalent body, as amended and in force from time to time. |
| “Fair Usage Policy” | means the fair usage policy applicable to the Okra Datacom Services which may be accessed at https://okradatacom.com/fairusage/ |
| “Force Majeure Event” | an event, or a series of related events, that is outside the reasonable control of the party affected, including: failures of the internet or any public telecommunications network; hacker attacks; denial of service attacks; virus or other malicious software attacks or infections; power failures; industrial disputes affecting any third party; changes to the law; disasters, explosions, fires, floods, riots, terrorist attacks and wars; failure of computer systems or infrastructure owned or managed by a party’s subcontractor or supplier. |
| “Initial Commitment Period” | has the meaning given to it in an Order. |
| “Intellectual Property Rights” | patents, rights in inventions, know how, show how and trade secrets, copyright and related rights, moral rights, registered designs, design rights, database rights, semiconductor topography rights, trade marks and service marks, trade names, business names, brand names, get up, logos, domain names and URLs, rights in unfair competition, goodwill and rights to sue for passing off and any other intellectual property rights (in each case, whether or not registered, and including all applications to register and rights to apply to register any of them and all rights to sue for any past or present infringement of them) and all rights or forms of protection having equivalent or similar effect in any jurisdiction. |
| “Okra Datacom” | Okra Datacom Limited, a company registered in Hong Kong with number 3014887 and its registered office at Unit 1113, 1/F, Peninsula Centre, 67 Mody Road, Tsim Sha Tsui, Kowloon, Hong Kong, 99077. |
| “Okra Datacom Platform” | means Okra Datacom’s proprietary web portal at https://app.okradatacom.com |
| “Okra Datacom Privacy Policy” | means Okra Datacom’s privacy policy which may be accessed at https://okradatacom.com/privacy/ |
| “Okra Datacom Services” | means the CRM, IP telephony, social media integration, automations and/or other services to be provided by Okra Datacom to the Customer, as specified in an Order. |
| “Okra Datacom SLA” | means the service level agreement (SLA) which may be accessed at https://okradatacom.com/sla/ |
| “Order” | means an order for the supply of Services that is submitted by the Customer via okradatacom.com and app.okradatacom.com and is accepted in writing by Okra Datacom. |
| “Personal Data” | has the meaning given to it in the Data Protection Legislation. |
| “Processing” | has the meaning given to it in the Data Protection Legislation. |
| “Services” | means: (i) the Okra Datacom Services; and (ii) the Support Services, or, as required by the context, either of them. |
| “Specification” | means the descriptions for the Okra Datacom Services which may accessed at app.okradatacom.com |
| “Subscription Charges” | means the monthly subscription charge payable by the Customer for the Services as specified in an Order. |
| “Support Services” | has the meaning given to in clause 4.1. |
| “Term“ | has the meaning given to it in clause 2.1. |
1.2 In the Agreement, a reference to a statute or statutory provision includes a reference to:
(a) that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and
(b) any subordinate legislation made under that statute or statutory provision.
1.3 The clause headings do not affect the interpretation of the Agreement.
1.4 In the Agreement, general words shall not be given a restrictive interpretation by reason of being preceded or followed by words indicating a particular class of acts, matters or things.
1.5 In case of a conflict or inconsistency between these Terms and Conditions and any provision in an Order, the provision in the Order prevails.
2. Term
2.1 Subject to earlier termination in accordance with clause 13, the Agreement will continue in force during the Initial Commitment Period, following which it may be terminated by either party giving to the other party thirty (30) days’ written notice of termination (the “Term”).
3. Okra Datacom Services
3.1 Okra Datacom will enable the Customer to access the Okra Datacom Platform and use the Okra Datacom Services during the Term.
3.2 Subject to the Customer complying with clauses 3.3 and 3.4, Okra Datacom grants the Customer a non-exclusive, non-transferable licence to access the Okra Datacom Platform during the Term for the sole purpose of using the Okra Datacom Services for its internal business purposes.
3.3 The Customer agrees that it will throughout the Term:
(a) use the Okra Datacom Services in a professional manner and only for the purposes for which they are made available;
(b) use the Okra Datacom Services in accordance with all applicable laws, including (without limitation) the Regulation of Investigatory Powers Act 2000, the Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000 and the Data Protection Legislation insofar as such laws apply to the recording of telephone calls and use of recorded calls; and
3.4 The Customer agrees that it will not:
(a) sub-license, rent, lease, loan, or sell its right to access the Okra Datacom Platform to any third party, or use the Okra Datacom Services for the benefit of any third party; or
(b) not use the Okra Datacom Platform in any way that is unlawful, illegal, fraudulent or harmful, or in connection with any unlawful, illegal, fraudulent or harmful purpose or activity; or
(c) use or attempt to use any other person’s Okra Datacom Account; or
(d) send spam or other unwelcomed communications to others; or
(e) breach the intellectual property or other proprietary rights of Okra Datacom or any third party; or
(f) upload to the Okra Datacom Platform anything that contains software viruses, worms, or any other harmful code; or
(g) reverse engineer, decompile, disassemble, decipher or otherwise attempt to derive the source code for the Okra Datacom Platform or any related technology, or any part thereof; or
(h) “scrape,” “crawl” or “spider” the Okra Datacom Platform, whether by manual means or using automated software, devices, scripts robots; or
(i) interfere with the operation of, or place an unreasonable load on, the Okra Datacom Platform, including by way of spam, denial of service attacks or viruses, or otherwise use the Okra Datacom Platform in any way that causes, or may cause, damage to it.
3.5 If the Customer breaches of any of the conditions or restrictions set out in clauses 3.3 or 3.4, then Okra Datacom may with immediate effect and without any obligation to provide notice:
(a) suspend the Customer’s access to the Okra Datacom Platform and use of the Okra Datacom Services; and/or
(b) terminate the Agreement.
3.6 The Customer acknowledges and agrees that:
(a) use of the Okra Datacom Services is subject to the data storage limits set out out in the Fair Usage Policy; and
(b) if the Customer exceeds such data storage limits, Okra Datacom is entitled to charge the Customer for such excess at the rates set out from time to time in the Fair Usage Policy (“Additional Data Storage Charges”) without prior notice to the Customer.
4. Support Services and Okra Datacom SLA
4.1 Okra Datacom shall provide the Customer with email support for the Okra Datacom Services between 09:00 and 17:00 UK time during Business Days (“Support Services”).
4.2 Okra Datacom will use all reasonable commercial endeavours to provide the Okra Datacom Services in accordance with the Okra Datacom SLA.
5. Customer Data
5.1 The Customer hereby grants to Okra Datacom a non-exclusive license to collect, copy, store, distribute, export, edit and translate the Customer Data to the extent reasonably required for the performance of Okra Datacom’s obligations and the exercise of Okra Datacom’s rights under the Agreement, together with the right to sub-license these rights to its hosting, connectivity and telecommunications service providers to the extent reasonably required for the performance of Okra Datacom’s obligations and the exercise of Okra Datacom’s rights under the Agreement.
5.2 The Customer warrants to Okra Datacom that the use of the Customer Data by Okra Datacom in accordance with the Agreement will not:
(a) breach the provisions of any law, statute or regulation;
(b) infringe the Intellectual Property Rights or other legal rights of any person; or
(c) give rise to any cause of action against Okra Datacom,
in each case in any jurisdiction and under any applicable law.
6. Data Protection
6.1 The parties agree that, in respect of any Customer Personal Data that is provided by the Customer to Okra Datacom then, for the purposes of Data Protection Laws, the Customer is the Data Controller and Okra Datacom is the Data Processor of such Customer Personal Data.
6.2 Okra Datacom will, at all times:
- carry out all Processing of Customer Personal Data pursuant strictly in accordance with the Agreement and the Okra Datacom Privacy Policy; and
- have in place appropriate technical and organizational security measures so that Customer Personal Data is protected against unauthorised or unlawful processing and against accidental loss, destruction or damage.
(c) only process the Customer Personal Data for the purposes of performing its obligations and exercising its rights under the Agreement; and
(d) process the Customer Personal Data in compliance with all applicable laws;
6.3 Okra Datacom will notify the Customer as soon as practicable if:
(a) any of the Customer Personal Data is lost or destroyed, or becomes damaged, corrupted or unusable;
(b) Okra Datacom receives any complaint or regulatory notice which relates to the processing of any of the Customer Personal Data; or
(c) Okra Datacom receives a request from a data subject for access to any of the Customer Personal Data.
6.4 Okra Datacom will co-operate with the Customer in relation to:
(a) any request from the Customer to amend or delete any of the Customer Personal Data;
(b) any complaint or regulatory notification relating to the processing of any of the Customer Personal Data; and
(c) any request from a data subject for access to any of the Customer Personal Data,
at the cost and expense of the Customer.
7. Intellectual Property Rights
7.1 Nothing in the Agreement shall operate to assign or otherwise transfer any Intellectual Property Rights from Okra Datacom to the Customer, or from the Customer to Okra Datacom.
7.2 All Intellectual Property Rights in in all materials created by Okra Datacom, solely or jointly with any person, in the course of making the Okra Datacom Services available to the Customer (“Work”) shall vest or remain vested in Okra Datacom.
7.3 At Okra Datacom’s request and expense the Customer will perform (or procure the performance of) all further acts and things, and execute and deliver (or procure the execution or delivery of) all further documents which Okra Datacom reasonably considers necessary to vest ownership of the Work in Okra Datacom or otherwise to give effect to this clause 7.
8. Charges
8.1 Okra Datacom will issue invoices for the Charges as follows:
(a) during the Initial Commitment Period, Okra Datacom will issue invoices for the Subscription Charges monthly in advance;
(b) after expiry of the Initial Commitment Period, Okra Datacom will issue invoices monthly in advance for the Subscription Charges; and
(c) Okra Datacom will issue invoices for the Call/message/email Charges and any Additional Engineer Support and Development Charges in arrears.
8.2 Following the issue of an invoice in accordance with clause 8.1, Okra Datacom will arrange immediate payment of the invoice using the credit card or debit card that the Customer provided when submitting the Order before sending a copy of the invoice to the Customer by email.
8.3 The Charges are exclusive of value added tax (VAT) or any other applicable local sales tax, which will be added to the Charges and are payable by the Customer to Okra Datacom if applicable.
8.4 Okra Datacom may increase the Subscription Charges by giving to the Customer at least thirty (30) days’ prior written notice, provided that:
(a) the total of all increases during any 12-month period shall not, when expressed as a percentage, exceed 20%
(b) any increases to the Subscription Charges during the Initial Commitment Term shall only be effective following expiry of the Initial Commitment Term.
8.5 If the Customer does not pay any amount properly due to Okra Datacom under the Agreement, Okra Datacom may, without prejudice to its other rights (whether under the Agreement or otherwise):
(a) charge the Customer interest on the overdue amount at the rate of 10% per annum (which interest will accrue daily until the date of actual payment); and
(b) subject to giving the Customer at least five (5) Business Days’ prior written notice of its intention to do so, suspend the provision of the Okra Datacom Services.
9. Warranties
9.1 Each party warrants to other party that:
(a) it has the legal right and authority to enter into the Agreement and to perform its obligations under the Agreement; and
(b) it will comply with all applicable legal and regulatory requirements applying to the exercise of its rights and the fulfilment of its obligations under the Agreement.
9.2 Okra Datacom warrants to the Customer that:
(a) it shall provide the Services with a reasonable degree of skill and care;
(b) the Okra Datacom Services shall in all material respects comply with the Specification so far as is reasonably practicable;
(c) it has taken and shall continue to take all commercially reasonable steps to ensure that the Okra Datacom Services will be free from viruses, worms, Trojan horses, ransomware, spyware, adware and other malicious software programs; and
(d) the Okra Datacom Services will incorporate security features reflecting the requirements of good industry practice.
9.3 All of the parties’ warranties and representations in respect of the subject matter of the Agreement are expressly set out in the Agreement. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of the Agreement will be implied into the Agreement or any related contract.
10. Acknowledgements and warranty limitations
10.1 The Customer acknowledges that, despite all reasonable commercial endeavours, complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of the Agreement, Okra Datacom gives no warranty or representation that the Okra Datacom Services will be wholly free from defects, errors and bugs.
10.2 The Customer acknowledges that, despite all reasonable commercial endeavours, complex software is never entirely free from security vulnerabilities; and subject to the other provisions of the Agreement, Okra Datacom gives no warranty or representation that the Okra Datacom Services will be entirely secure.
10.3 Except to the extent expressly provided otherwise in the Agreement, Okra Datacom does not warrant or represent that the Okra Datacom Services or the use of the Okra Datacom Services by the Customer will be suitable for the Customer’s purposes, or will provide the Customer with any return on investment, cost saving or other specific result or outcome.
11. Limitations and exclusions of liability
11.1 Nothing in the Agreement will limit or exclude:
(a) any liability for fraud or fraudulent misrepresentation; or
(b) any liability in any way that is not permitted under applicable law.
11.2 The limitations and exclusions of liability set out in this clause 11 and elsewhere in the Agreement:
(a) are subject to clause 11.1; and
(b) govern all liabilities arising under the Agreement or relating to the subject matter of the Agreement, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in the Agreement.
11.3 Okra Datacom shall not be liable to the Customer in respect of:
(a) any losses arising out of a Force Majeure Event; or
(b) any loss of profits or anticipated savings; or
(c) any loss of revenue or income; or
(d) any loss of use or production; or
(e) any loss of business, contracts or opportunities; or
(f) any loss or corruption of any data, database or software,
whether or not such losses or loss would also fall within clause 11.4.
11.4 Neither party shall be liable to the other party in respect of any special, indirect or consequential loss or damage.
11.5 Subject to clauses 11.1 to 11.4, the liability of each party to the other party under the Agreement in respect of any event or series of related events shall not exceed the higher of (i) the total amount paid and payable by the Customer to Okra Datacom under the Agreement in the 12-month period preceding the commencement of the event or events or (ii) £10,000.
12. Force Majeure Event
12.1 If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under the Agreement (other than any obligation to make a payment), that obligation will be suspended for the duration of the Force Majeure Event.
12.2 A party that becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in that party performing any obligation under the Agreement, must:
(a) promptly notify the other; and
(b) inform the other of the period for which it is estimated that such failure or delay will continue.
12.3 A party whose performance of its obligations under the Agreement is affected by a Force Majeure Event must take reasonable steps to mitigate the effects of the Force Majeure Event.
13. Termination
13.1 Either party may terminate the Agreement immediately by giving written notice of termination to the other party if the other party commits any material breach of the Agreement which, in the case of a breach which is remediable, is not remedied within thirty (30) days of the date on which the other party is given written notice requiring the breach to be remedied.
13.2 Either party may terminate the Agreement immediately by giving written notice of termination to the other party if:
(a) the other party is dissolved, ceases to conduct all (or substantially all) of its business, is or becomes unable to pay its debts as they fall due, is or becomes insolvent or is declared insolvent, or convenes a meeting or makes or proposes to make any arrangement or composition with its creditors; or
(b) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any material part of the assets of the other party; or
(c) an order is made for the winding up of the other party, or the other party passes a resolution for its winding up (other than for the purpose of a solvent company reorganisation where the resulting entity will assume all the obligations of the other party under the Agreement).
13.3 Okra Datacom may terminate the Agreement at any time by giving thirty (30) days’ notice of termination to the Customer.
14. Effects of termination
14.1 Upon the termination of the Agreement, all of the provisions of the Agreement shall cease to have effect, save that the following provisions of the Agreement shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): clauses 1, 5, 7, 8, 11, 14, 16, 19, 20, 21, 23 and 24.
14.2 The termination of the Agreement shall not affect the accrued rights of either party.
14.3 On termination of the Agreement for any reason the Customer must immediately pay to Okra Datacom any Charges in respect of Services provided to the Customer before the termination of the Agreement.
14.4 The Customer agrees that:
(a) it is the Customer’s responsibility to retrieve a copy of the Customer Data within thirty (30) days of the date on which termination of the Agreement is effective, following which date Okra Datacom is entitled to delete the Customer Data without notice; and
(b) if the Customer requests Okra Datacom to provide a copy of the Customer Data after the 30-day period referred to in (a), then Okra Datacom may (at its entire discretion) agree to do so subject to the Customer paying a data recovery charge not exceeding £100 + VAT.
15. Marketing and Publicity
15.1 The Customer agrees that Okra Datacom may refer to the Customer as being a user of the Okra Datacom Services in its marketing materials, press releases, or on its website.
16. Notices and Consents
16.1 Any notice or consent from one party to the other party under the Agreement must be given by email using, in the case of Okra Datacom, support@okradatacom.com or, in the case of the Customer, the email address set out in the Order.
17. Subcontracting
17.1 Okra Datacom may subcontract any of its obligations under the Agreement, provided that Okra Datacom shall remain responsible to the Customer for the performance of any subcontracted obligations.
18. Assignment
18.1 The Customer must not assign, transfer or otherwise deal with its contractual rights and/or obligations under the Agreement without the prior written consent of Okra Datacom, such consent not to be unreasonably withheld or delayed.
19. No waivers
19.1 No breach of any provision of the Agreement will be waived except with the express written consent of the party not in breach.
19.2 No waiver of any breach of any provision of the Agreement shall be construed as a further or continuing waiver of any breach of that provision or any other provision of the Agreement.
20. Severability
20.1 If a provision of the Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions will continue in effect.
20.2 If any unlawful and/or unenforceable provision of the Agreement would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect.
21. Third party rights
21.1 The Agreement is for the benefit of the parties, and is not intended to benefit or be enforceable by any third party.
22. Variation
22.1 The Agreement may not be varied except in accordance with this clause 22.
22.2 Subject to clause 22.3, the Agreement may be varied by means of a written document signed, including by electronic signature, by or on behalf of each party.
22.3 Okra Datacom may from time to time make changes to the Specification, provided that any such change shall not adversely affect the core functionality of the Okra Datacom Services in any material respect.
23. Entire agreement
23.1 The Agreement shall constitute the entire agreement between the parties in relation to its subject matter, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.
23.2 Neither party will have any remedy in respect of any misrepresentation (whether written or oral) made to it upon which it relied in entering into the Agreement.
23.3 The provisions of this clause 23 are subject to clause 11.1.
24. Law and jurisdiction
24.1 The Agreement and all disputes or claims arising out of or in connection with the Agreement or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with Hong Kong law.
24.2 Any disputes relating to the Agreement or its subject matter or formation (including non-contractual disputes or claims) shall be subject to the exclusive jurisdiction of the courts of Hong Kong.