Odyssey VC Terms of Service
These Terms of Service govern Customer’s acquisition and use of the Odyssey VC Service. Please read these Terms of Service carefully. They constitute a legally binding agreement between Odyssey Validation Consultants Limited and the Customer. Capitalized terms have the definitions set forth below.
Each reference in this agreement to “Odyssey VC” means Odyssey Validation Consultants Limited.
CUSTOMER AGREES TO THE TERMS OF SERVICE BY (1) EXECUTING A SALES CONTRACT THAT REFERENCES THIS AGREEMENT, OR (2) CLICKING A BOX INDICATING ACCEPTANCE, OR (3) USING THE ODYSSEY VC SERVICE. IF THE INDIVIDUAL ACCEPTING THESE TERMS OF SERVICE IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS OF SERVICE, IN WHICH CASE THE TERM “CUSTOMER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THESE TERMS OF SERVICE DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THESE TERMS OF SERVICE AND MAY NOT USE THE ODYSSEY VC SERVICE, FOR ANY REASON, IN ITS REASONABLE DISCRETION.
These Terms of Service were last updated on Oct 2, 2023. They are effective between Customer and Odyssey VC as of the date of the parties’ acceptance (the “Effective Date”).
1 DEFINITIONS
1.1 “Add-on Service” means services other than the standard Service made available by Odyssey VC which are separately purchased by a Customer for fees in addition to the base price for the Service.
1.2 “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
1.3 “Agreement” as used herein, includes these Odyssey VC Terms of Service and any exhibits, schedules, amendments, addendums, or appendices hereto and documents incorporated herein.
1.4 “Confidential Information” has the meaning set forth at Section 9.
1.5 “Customer” means in the case of an individual accepting this Agreement on their own behalf, such individual, or in the case of an individual accepting this Agreement on behalf of a company or other legal entity, the company or other legal entity for which such individual is accepting this Agreement, and Affiliates of that company or entity (for so long as they remain Affiliates) which have entered into Sales Contract(s).
1.6 “Customer Data” means electronic data and information submitted by or for Customer to the Service, excluding Non-Odyssey VC Applications.
1.7 “Data Protection Law” means all applicable data protection and privacy legislation in force from time to time in Ireland and the European Unions, including the General Data Protection Regulation ((EU) 2016/679), the Data Protection Acts 1988 to 2018, the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the European Communities (Electronic Communications Networks and Services) (Privacy and Electronic Communications) Regulations 2011 (SI 336/2011), as may be amended from time to time, and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications).
1.8 “Free Service” means Services that Odyssey VC makes available to Customer free of charge. Free Services exclude services offered as a free trial and Purchased Services.
1.9 “Non-Odyssey VC Application” means Web-based, mobile, offline, or other software functionality that interoperates with the Odyssey VC Service, that is provided by the Customer and/or a third party.
1.10 “Processed Customer Data” means electronic data and information submitted by or for Customer (input) to the Service and that has been filtered (transformation) by the Service for the purpose of identifying critical system audit trail event records (output) that require review and storage for an agreed retention period.
1.11 “Purchased Services” means Services that Customer or Customer’s Affiliate purchases under a Sales Contract, as distinguished from Free Services or those provided pursuant to a free trial.
1.12 “Quality Management System” as used herein, means Odyssey VC Quality Management System which is used to oversee all activities and tasks needed to maintain a desired level of excellence.
1.13 “Sales Contract” means a legally binding document specifying the details of the Service to be provided hereunder and the terms of sales that is entered into between Customer and Odyssey VC or any of their Affiliates, including any addenda and supplements thereto. By entering into a Sales Contract hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.
1.14 “Service” means Odyssey VC CompliantCloud VIEW software product(s) that Odyssey VC makes available to the Customer under this Agreement.
1.15 “Term” means the period of validity of this Agreement, including any Renewal Term.
1.16 “User” means, in the case of an individual accepting these terms on their own behalf, such individual, or, in the case of an individual accepting this Agreement on behalf of a company or other legal entity, an individual who is authorized by Customer to use the Service, for whom Customer has purchased the Service, and to whom Customer (or, when applicable, Odyssey VC at Customer’s request) has supplied a user identification and password. Users may include, for example, employees, consultants, contractors, and agents of Customer, and third parties with which Customer transacts business.
2 ODYSSEY VC RESPONSIBILITIES
2.1 Provision of Purchased Services. Odyssey VC will (a) make the Service available to the Customer pursuant to this Agreement, and the applicable Sales Contract(s) (b) provide applicable standard user support (as set forth in Exhibit A) for the Purchased Service(s) to Customer at no additional charge, and/or upgraded support if purchased, (c) be responsible for implementing standard security activities, required to support multi-layered security implementation for connectivity and data access, including reasonable security measures to prevent unauthorized access to the Service and data (d) use commercially reasonable efforts to make the Service available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which Odyssey VC shall give advance electronic notice), (ii) unscheduled maintenance performed outside normal business hours, provided that Odyssey VC has used reasonable endeavours to give the Customer at least [[6] Normal Business Hours'] notice in advance, and (iii) any unavailability caused by circumstances beyond Odyssey VC’s reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving Odyssey VC employees), Internet service provider failure or delay, Non-Odyssey VC Application, or denial of service attack, and (e) provide the Service in accordance with laws and government regulations applicable to Odyssey VC’s provision of the Service to its customers generally (i.e., without regard for Customer’s particular use of the Service), and subject to Customer’s and Users’ use of the Service in accordance with this Agreement, and the applicable Sales Contract(s).
2.2 Odyssey VC Personnel. Odyssey VC will be responsible for the performance of its personnel (including its employees and contractors) and their compliance with Odyssey VC’s obligations under this Agreement, except as otherwise specified in this Agreement.
2.3 Protection of Customer Data. Odyssey VC will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality, and integrity of Customer Data, including Processed Customer Data. Those safeguards will include, but will not be limited to, measures designed to prevent unauthorized access to or disclosure of Customer Data, including Processed Customer Data (other than by Customer or Users). Odyssey VC’s Data Security & Privacy Policy and Odyssey VC’s Documentation and Data Management Procedure are hereby incorporated by reference. Upon request by Customer made within 30 days after the effective date of termination or expiration of this Agreement, Odyssey VC will make Customer Data, including Processed Customer Data available to Customer for export or download. Data archiving support can be purchased as part of an Add-on Service from Odyssey VC support. After such 30-day period, Odyssey VC will have no obligation to maintain or provide any Customer Data, including Processed Customer Data and will thereafter, at Odyssey VC’s reasonable discretion, delete or destroy all copies of Customer Data, including Processed Customer Data in its systems or otherwise in its possession or control, unless legally prohibited or otherwise agreed.
3 USE OF SERVICE
3.1 General Rights. Odyssey VC Service shall be made available to the Customer as a service that Customer may access and use for the duration of this Agreement. Odyssey VC will host and retain physical control over the Service and make the Service available through the Internet for access, use and operation by Customer through a web-browser. Other than as specifically set forth above and unless otherwise agreed to by Odyssey VC in writing, no provision under this Agreement shall obligate Odyssey VC to deliver or otherwise make available any copies of computer programs or code from the Service to Customer, whether in object code or source code form.
3.2 Service license and permitted usage. The Service is licensed, not sold, to the Customer by Odyssey VC under the terms of this Agreement, and the applicable Sales Contract(s) and Odyssey VC reserves all rights not expressly granted to the Customer. Subject to the Customer abiding by the terms of this Agreement and the applicable Sales Contract(s), Odyssey VC hereby grant the Customer non-exclusive, non-transferable license for the Term, for the purpose of using the functionality offered by the Service and for which the Customer purchased. For the avoidance of doubt, all of Customer Site(s) referenced in the applicable Sales Contract may access and use the Service as described herein. Customer agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Odyssey VC regarding future functionality or features.
3.3 Customer Responsibilities. Customer will (a) be responsible for Users’ compliance with this Agreement and Sales Contract(s), (b) be responsible for the accuracy, quality and legality of Customer Data, how Customer acquired Customer Data, and the Customer’s use of Customer Data with the Service, (c) be responsible for implementing necessary security activities required on Customer network to support multi-layered security implementation for connectivity and data access, at Customer’s own expense, (d) use commercially reasonable efforts to prevent unauthorized access to or use of the Service and notify Odyssey VC promptly of any such unauthorized access or use and (e) provide Odyssey VC with all necessary co-operation and all necessary access to such information as may be required by Odyssey VC in order to provide the Services. Customer may not remove or alter any of the logos, trademark, patent or copyright notices, confidentiality or proprietary legends or other notices or markings within the Service or Service documentation. Any use of the Service in breach of the foregoing by Customer or Users that in Odyssey VC’s judgment threatens the security, integrity, or availability of Odyssey VC’s services, may result in Odyssey VC’s immediate suspension of the Service, however Odyssey VC will use commercially reasonable efforts under the circumstances to provide Customer with notice and an opportunity to remedy such violation or threat prior to any such suspension.
3.4 Usage Restrictions. Customer will not (a) make Odyssey VC Service available to anyone other than Customer or Users, or use any Service for the benefit of anyone other than Customer or its Affiliates, unless expressly stated otherwise in a Sales Contract, (b) sell, resell, license, sublicense, distribute, rent or lease Odyssey VC Service, or include the Service in a service bureau or outsourcing offering, (c) use Odyssey VC Service to store or transmit infringing, libelous, obscene, sexually explicit or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use Odyssey VC Service to store or transmit malicious code, (e) interfere with or disrupt the integrity or performance of the Odyssey VC Service, (f) attempt to gain unauthorized access to the Service or its related systems or networks, (g) permit direct or indirect access to or use of Service in a way that circumvents a contractual usage limit or allow or suffer any user identification to be used by more than one individual as a User unless it has been reassigned in its entirety to another individual as a User, in which case the User shall no longer have any right to access or use the Services, (h) copy, modify, duplicate, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Service (or contract with a third party to do so). Customer shall maintain a written, up-to-date list of Users and provide such list to Odyssey VC within 5 business days of Odyssey VC’s written request and shall permit Odyssey VC or its designated auditor to audit the Services in order to establish the identity of each User and Customer's data processing facilities to audit compliance with this agreement, provided that each such audit may be conducted no more than once per quarter, at Odyssey VC's expense, and this right shall be exercised with reasonable prior notice, in such manner as not to substantially interfere with Customer's normal conduct of business.
3.5 Usage Limits. Customer’s use of the Service is limited by the following storage restriction: Processed Customer Data will be retained in the Service for a standard retention period of ten (10) years from the date of data creation, provided that this Agreement has not expired nor been terminated. Notwithstanding the above, Customer may purchase extended retention period(s), as specified in applicable Sales Contract(s).
3.6 Use By Third Parties. Customer may allow regulatory agencies, sponsors, Contract Research Organizations (providing outsourcing services for the Customer) and other Customer vendors (“Third Parties”) to access and use the Service solely for Customer’s internal business purposes; provided that any such Third Party may not be a competitor of Odyssey VC unless Odyssey VC has consented to such access and use in writing. The obligations and limitations as to Customer that are set forth in this Agreement are also applicable to each Third Party that are provided access to the Service. Customer is responsible for ensuring that its employees and each Third Party (and their employees) are aware of and comply with the terms of this Agreement. Any breach of this Agreement by such entities or individuals shall be deemed to be a breach by Customer, and Customer is liable for such breaches.
4 SUPPORT
Odyssey VC’s policies, procedures and practices regarding technical support, data back-up, disaster recovery and Service upgrades are as set forth in Exhibit A. Odyssey VC reserves the right to change such policies, procedures and practices as required in Odyssey VC’s reasonable judgment.
5 SERVICE VALIDATION
5.1 Customer accepts the Service validation documentation as-is and may perform additional validation based on a system risk assessment. Upon reasonable request and notice, and at Customer’s own expense, Customer may request access to, and Odyssey VC will make available, validation materials to conduct an audit of Odyssey VC’s validation processes and procedures.
5.2 Odyssey VC will ensure that validation maintenance activities that fall under Odyssey VC responsibility are conducted for all aspects of the Service under Odyssey VC control. Customer will be responsible for validation maintenance activities under Customer control, at Customer’s own expense, and will be supported by Odyssey VC e.g., supplier assessment, user access etc.
6 INTEGRATION WITH NON-ODYSSEY VC APPLICATIONS
6.1 The Service may contain features designed to interoperate with Non-Odyssey VC Applications. Odyssey VC cannot guarantee the continued availability of such Service features and may cease providing them without entitling Customer to any refund, credit, or other compensation, if for example and without limitation, the provider of a Non-Odyssey VC Application ceases to make the Non-Odyssey VC Application available for interoperation with the corresponding Service features in a manner acceptable to Odyssey VC.
6.2 The Customer accesses any Non-Odyssey VC Applications solely at its own risk. Odyssey VC makes no representation, warranty or commitment and shall have no liability or obligation whatsoever in relation to the content or use of any Non-Odyssey VC Applications and does not endorse or approve any Non-Odyssey VC Applications nor the content thereof which may be made available via the Services. Odyssey VC recommends that the Customer refers to the terms and conditions and privacy policy applicable to any Non-Odyssey VC Applications prior to using it.
7 FEES AND PAYMENTS
7.1 Fees. Customer will pay all fees specified as outlined in the Sales Contract(s). Except as otherwise specified herein or in a Sales Contract, fees are based on the Service purchased and not actual usage. Odyssey VC reserve the right to change the Fees upon two months’ advance notice, unless otherwise stated in the Sales Contract. Customer will be deemed to have accepted the changes unless Customer notifies Odyssey VC to the contrary before the change comes into force.
7.2 Invoicing and Payment. Customer will provide Odyssey VC with a valid purchase order or valid and updated credit card information, or alternative document reasonably acceptable to Odyssey VC. If Customer provides credit card information to Odyssey VC, Customer authorizes Odyssey VC to charge such credit card for all Purchased Services listed in the Sales Contract for the initial term and any renewal term(s) as set forth in the Sales Contract. Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Sales Contract. Unless otherwise stated in the Sales Contract, invoiced fees are due net 30 days from the invoice date. Customer is responsible for providing complete and accurate billing and contact information to Odyssey VC and notifying Odyssey VC of any changes to such information.
7.3 Late payment interest. Payment terms of this Agreement and applicable Sales Contract are governed by European Communities (Late Payment in Commercial Transactions) Regulations 2012 - SI 580 of 2012. As per these terms, Odyssey VC shall be entitled to interest (“late payment interest”) on the amount outstanding. Interest shall apply until such time as payment is made by the Customer. In addition, these terms outline (a) in the absence of any agreed payment date between the parties, late payment interest falls due after 30 days has elapsed, provided the invoice is not subject to query, (b) Odyssey VC is automatically entitled, without the necessity of a reminder, to interest for late payments, (c) where late payment interest falls due, Odyssey VC is also entitled to the automatic payment of compensation costs, and (d) with effect from 1 January 2019 the late payment interest rate is 8% per annum. Penalty interest due for late payments is calculated on a daily basis.
7.4 Suspension of Service and Acceleration. If any charge owing by Customer under this or any other agreement for services is 30 days or more overdue, Odyssey VC may, without limiting its other rights and remedies, accelerate Customer’s unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend the Service until such amounts are paid in full. Odyssey VC will give Customer at least 10 days’ prior notice that its account is overdue, in accordance with the “Notices” section below for billing notices, before suspending services to Customer.
7.5 Payment Disputes. Odyssey VC will not exercise its rights under the “Late payment interest” or “Suspension of Service and Acceleration” section above if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.
8 PROPRIETARY RIGHTS
8.1 Reservation of Rights. Customer shall retain all right, title and interest to all Customer Data. Odyssey VC shall retain all right, title and interest in and to (a) the Service, the Service documentation, all modifications and/or enhancements to the Service (regardless of the source of inspiration for any such enhancement or modification and regardless of whether Customer has provided input regarding such modifications and/or enhancements), and all inventions or discoveries embodied within the Service, (b) proprietary education or training content, and (c) pre-existing materials related to Odyssey VC’s professional services processes and methodologies. Odyssey VC reserves to itself all rights that are not expressly granted pursuant to this Agreement.
8.2 Right to the Use of Feedback. Customer grants to Odyssey VC the right to use, distribute, disclose, make and incorporate into its Service any suggestion, enhancement request, recommendation, correction, or other feedback provided by Customer relating to the operation of Odyssey VC’s Service, provided that such feedback does not include the identity of the Customer or the individual users accessing and using the Service.
9 CONFIDENTIALITY
9.1 Definition of Confidential Information. As to Odyssey VC, the term “Confidential Information” means information specifically designated as confidential or that would be understood to be confidential or proprietary by a reasonable person, including the features and functions of the Service that are not available to the general public via the public internet (including screen shots of the same), future product plans, any Service documentation or specifications provided to Customer, audit, performance and security test results, and any other proprietary, financial or business information supplied to Customer by Odyssey VC. As to Customer, the term “Confidential Information” means information specifically designated as confidential or that would be understood to be confidential or proprietary by a reasonable person, including login credentials for accessing the Service, and Customer Data (including personally identifiable data). Notwithstanding the foregoing, “Confidential Information” shall not include (i) information which is or becomes publicly known through no act or omission of the receiving party, or (ii) information gained by the receiving party independent of the disclosing party.
9.2 Confidential Information. Odyssey VC and the Customer agrees: (i) that it will use (and will ensure that its employees, affiliates, agents, contractors and other allowed Third Party’s use) reasonable efforts (which shall be no less than the efforts used to protect its own confidential information of a similar nature) to prevent the disclosure of the other party’s Confidential Information to any person or entity, unless authorized by the other party; and (ii) that it will not use Confidential Information of the other party for any purpose other than as authorized by this Agreement or by the other party. On termination or expiry of this Agreement, if requested by either or both parties, shall destroy or return to the other party all documents and materials (and any copies) containing, reflecting, incorporating or based on the other party's Confidential Information. Odyssey VC may list Customer as a customer and use Customer’s logo on Odyssey VC’s website and in other Odyssey VC customer listings.
9.3 Compelled Disclosure. Notwithstanding the foregoing, it shall not be a breach of this Agreement to disclose Confidential Information required to be disclosed pursuant to administrative or court order, government or regulatory investigation or requirement, or arbitration or litigation arising out of this Agreement; provided, however, that to the extent permissible, each party shall, in advance of any such disclosure promptly notify the other party in order to enable the other party reasonable time to seek a protective order with respect to the requested information or otherwise challenge or oppose the disclosure requirement.
10 DATA PROTECTION
10.1 Data Protection Laws and Policy. Both parties will comply with all applicable requirements of the Data Protection Law. This Clause 10 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Law. Odyssey VC shall, in providing the Services, comply with its CompliantCloud.com Privacy Policy relating to the privacy and security of the Customer Data available at https://viewsupport.compliantcloud.com/support/solutions/articles/51000056165 or such other website address as may be notified to the Customer from time to time, as such document may be amended from time to time by Odyssey VC in its sole discretion. The parties acknowledge that, if Odyssey VC processes any personal data on the Customer’s behalf when performing its obligations under this Agreement, the Customer is the controller and Odyssey VC is the processor for the purposes of the Data Protection Law.
10.2 Transfer of Personal Data. The parties acknowledge that personal data may be transferred or stored outside the EEA or the country where the Customer and the Users are located in order to carry out the Services and Odyssey VC’s other obligations under this Agreement. The Customer shall ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to Odyssey VC for the duration and purposes of this Agreement or that another legal basis applies so that Odyssey VC may lawfully use, process and transfer the personal data in accordance with this Agreement on the Customer’s behalf.
10.3 Processing of Personal Data. Odyssey VC shall, in relation to any personal data processed in connection with the performance by the Supplier of its obligations under this Agreement:
10.3.1 process that personal data only on the documented written instructions of the Customer unless Odyssey VC is required by the laws of any member of the European Union or by the laws of the European Union applicable to Odyssey VC to process personal data. Where Odyssey VC is relying on this Clause 10.3.1 as the basis for processing personal data, Odyssey VC shall promptly notify the Customer of this before performing the processing required by the applicable laws unless those laws prohibit Odyssey VC from so notifying the Customer.
10.3.2 not transfer any personal data outside of the European Economic Area unless the Customer or Odyssey VC has provided appropriate safeguards in relation to the transfer including the use of EU Standard Contractual Clauses where required, the data subject has enforceable rights and effective legal remedies, Odyssey VC complies with its obligations under the Data Protection Laws by providing an adequate level of protection to any personal data that is transferred and Odyssey VC complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the personal data;
10.3.3 assist the Customer, at the Customer’s cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Law with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
10.3.4 notify the Customer without undue delay on becoming aware of a personal data breach;
10.3.5 at the written direction of the Customer, delete or return personal data and copies thereof to the Customer on termination of the agreement unless required by laws of any member of the European Union or by the laws of the European Union applicable to Odyssey VC to store the personal data (and for these purposes the term “delete” shall mean to put such data beyond use); and
10.3.6 maintain complete and accurate records and information to demonstrate its compliance with this Clause 10 and immediately inform the Customer if, in the opinion of Odyssey VC, an instruction infringes the Data Protection Laws.
10.4 Technical and Organisational Measures. Each party shall ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it).
11 DISCLAIMER OF WARRANTY
THE SERVICE IS PROVIDED AS-IS WITHOUT WARRANTY OF ANY KIND AND TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, ODYSSEY VC DISCLAIMS AND EXCLUDES ALL WARRANTIES, CONDITIONS AND OTHER TERMS IMPLIED BY STATUTE, COLLATERALLY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER ASSUMES SOLE RESPONSIBILITY FOR RESULTS OBTAINED FROM THE USE OF THE SERVICES BY CUSTOMER, AND FOR CONCLUSIONS DRAWN FROM SUCH USE, AND ODYSSEY VC SHALL HAVE NO LIABILITY FOR ANY DAMAGE CAUSED BY ERRORS OR OMISSIONS IN ANY INFORMATION, INSTRUCTIONS OR SCRIPTS PROVIDED TO ODYSSEY VC BY CUSTOMER IN CONNECTION WITH THE SERVICES, OR ANY ACTIONS TAKEN BY ODYSSEY VC AT CUSTOMER'S DIRECTION. ODYSSEY VC DOES NOT GUARANTEE OR WARRANT THAT THE SERVICE WILL PERFORM ERROR-FREE OR UNINTERRUPTED.
12 INDEMNIFICATION
12.1 Customer Indemnity. The Customer shall defend, indemnify and hold harmless Odyssey VC against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer's use of the Services, provided that (a) the Customer is given prompt notice of any such claim; (b) Odyssey VC provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer's expense; and (c) the Customer is given sole authority to defend or settle the claim.
12.2 Infringement Indemnity. Odyssey VC shall, at its expense, defend or, at its option, settle any claim, action or allegation brought against Customer alleging that the Service infringes any valid copyright, patent, trade secret or any other intellectual proprietary right of any third party and shall pay any final judgments awarded or settlements entered into; provided that Customer gives prompt written notice to Odyssey VC of any such claim, action or allegation of infringement and gives Odyssey VC the authority to proceed as contemplated in Clause 12.3. In the event any infringement claim, action or allegation is brought or threatened, Odyssey VC may, at its sole option and expense: (a) procure for Customer the right to continue use of the Service or infringing part thereof; (b) modify, amend or replace the Service or infringing part thereof with other service having substantially the same or better capabilities; or, if neither of the foregoing is in Odyssey VC’s opinion commercially practicable, (c) terminate this Agreement. The foregoing obligations will not apply to the extent the alleged infringement arises as a result of (i) any use of the Service in a manner prohibited by this Agreement or contrary to the instructions given to Customer by Odyssey VC; (ii) Customer's use of the Services after notice of the alleged or actual infringement from Odyssey VC or any appropriate authority; or (iii) any modification of the Services by anyone other than Odyssey VC or any use by Customer of the Service in combination with other products, equipment, devices, software, systems or data not supplied by Odyssey VC provided that this exclusion shall not be applicable to combinations with hardware, software or other technology required to access and use the Service (e.g., a web browser, an internet connection, a personal computer). This Section states the entire liability of Odyssey VC with respect to infringement of any patent, copyright, trade secret or other intellectual property right.
12.3 Indemnity Process. Odyssey VC will have the exclusive right to defend any indemnified claim (including the right to select and control the work of counsel) and make settlements thereof at its own discretion. Customer may not make any admission or otherwise attempt to settle or compromise any indemnified claim, action or allegation, except with prior written consent of Odyssey VC. Odyssey VC may not, without Customer’s prior written approval, enter into any settlement of an indemnified claim that imposes a direct financial liability on Customer or includes an admission of fault by Customer. Customer shall give such non-monetary assistance and information as Odyssey VC may reasonably require to settle or defend indemnified claims.
13 LIMITATION OF LIABILITY
IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES OR ANY LOSS OF REVENUE, PROFITS, DATA OR DATA USE ARISING OUT OF THIS AGREEMENT. ODYSSEY VC’S MAXIMUM LIABILITY IN CONNECTION WITH THIS AGREEMENT, ON THE BASIS OF ANY THEORY OF LIABILITY OR CAUSE OF ACTION, SHALL BE LIMITED TO THE TOTAL FEES PAID FOR SUBSCRIPTION SERVICES DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM AROSE. THE EXCLUSIONS AND LIMITATIONS OF THIS SECTION DO NOT APPLY (A) TO THE EXTENT PROHIBITED BY APPLICABLE LAW AND (B) TO THE INDEMNITY OBLIGATIONS SET FORTH IN SECTIONS 12.1 AND 15.12.
14 TERM AND TERMINATION
14.1 Term of Agreement and Renewal. This Agreement is effective from the Effective Date and may be terminated at any time by either party by providing the other party with at least ninety (90) days written notice of its intent to terminate, amend or not renew the Agreement.
14.2 Right to Terminate. Either party may terminate the Agreement in the event that the other party has materially breached the Agreement (including failure to pay any amount due under this Agreement) and such breach has not been cured (or, if the breach is not capable of being cured, discontinued with appropriate changes to ensure that it is not repeated) within thirty (30) days of written notice of breach from the other party. Either party may terminate this Agreement immediately if (a) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or is deemed unable to pay its debts within the meaning of Section 570 of the Companies Act 2014; (b) the other party commences negotiations with its creditors or any class of creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party; (c) a petition is filed, a notice is given, a resolution is passed or an order is made for or in connection with the winding up of the other party other than for the sole purpose of a scheme for a solvent amalgamation or solvent reconstruction; (d) an application is made to court, or an order is made, for the appointment of an examiner, or a notice of intention to appoint an examiner or the appointment of an examiner, to the other party; (e) a person becomes entitled to appoint a receiver or a receiver and manager over the assets of the other party or a receiver or a receiver and manager is appointed over the assets of the other party; (f) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party's assets and such attachment or process is not discharged within 14 days; (g) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the aforementioned events; or (h) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
14.3 Changes to Terms. Odyssey VC may modify these Terms of Service from time to time to reflect changes in market conditions affecting Odyssey VC business, changes to Odyssey VC business, changes in payment methods, changes in technology, changes in relevant laws and regulatory requirements. If Odyssey do so the Customer will be notified by email, however Odyssey VC are not obliged to, and such modification shall be effective upon our publishing of the updated version of our Terms of Service.
15 GENERAL PROVISIONS
15.1 Governing Law and Dispute Resolution. This Agreement shall be interpreted and construed in accordance with the laws of Ireland. Each party irrevocably agrees that the courts of Ireland shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims). This Agreement is written and executed in, and all other communications under or in connection with this Agreement will be in, English. Any translation into any other language is not to be an official version of this Agreement.
15.2 Export Control Laws. Each party shall comply with the export control laws of the European Union and of the United States which are applicable to the Service, and which may prohibit use of the Service in certain sanctioned or embargoed countries.
15.3 Entire Agreement and Order of Precedence. The Agreement and the Sales Contract(s) encompass the entire agreement between Customer and Odyssey VC with respect to the subject matter hereof and supersedes all prior representations, agreements and understandings, written or oral. The parties agree that any term or condition stated in a Customer purchase order or in any other Customer order documentation (excluding Sales Contract(s)) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Sales Contract and (2) this Agreement.
15.4 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. Each party will be solely responsible for payment of all compensation owed to its employees, as well as all employment-related taxes.
15.5 No Legal Advice. Odyssey VC shall not provide Customer with any legal advice regarding compliance with laws, rules or regulations in the jurisdictions in which Customer uses the Service, including those related to data privacy, or medical, pharmaceutical or health related data. Customer acknowledges that the Service may be used in ways that do and do not comply with such laws, rules or regulations and it is Customer’s sole responsibility to monitor its compliance with all such relevant laws, rules or regulations. Customer is responsible for such Customer-specific use decisions and Odyssey VC disclaims all liability for such decisions.
15.6 Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement.
15.7 Waiver. The failure of either party to enforce at any time any of the provisions of this Agreement, or the failure to require at any time performance by the other party of any of the provisions of this Agreement, will not be construed to be a waiver of such provisions, or in any way affect the right of either party to enforce such provision thereafter.
15.8 Severability. If any provision, or portion thereof, of this Agreement is or becomes invalid under any applicable statute or rule of law, it is to be deemed stricken and the rest of the Agreement shall remain in full force and effect.
15.9 Assignment. Neither party may transfer or assign this Agreement, without the other party’s prior written consent; provided, however, either party may assign this Agreement in its entirety (including all Sales Contracts), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice within 30 days of being notified of such acquisition, sale or change of control.
15.10 Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.
15.11 Notices. All notices or other communications required or permitted to be given pursuant to this Agreement shall be in writing and shall be considered properly given or made (a) if delivered by hand, at the time the notice is left at the registered address of the recipient party (b) if delivered by pre-paid post or other next-working-day delivery service, the second business day after being mailed or (c) if sent by email (except for notices of termination or an indemnifiable claim , which shall clearly be identifiable as such and shall not be delivered by email), the day of sending by email. Billing-related notices to Customer will be addressed to the relevant billing contact designated by Customer. All other notices to Customer will be addressed to the relevant Services system administrator designated by Customer.
15.12 Use of Third-Party Licensed Data. To the extent Customer stores data in the Service that has been purchased or licensed from third parties, Customer is responsible for ensuring its use, processing, reporting against, combination, commingling and manipulation of such data is in compliance with its agreements with the data provider. To the extent permitted by law, Customer will, indemnify and hold Odyssey VC harmless against any claims by such third-party data providers arising from Customer’s use of such third-party data in the Service.
15.13 Sub-suppliers. Odyssey VC invokes its Quality Management System regarding Supplier and Contractor Management for the management of sub-suppliers. Odyssey VC shall retain full responsibility for the performance of its obligations under the Agreement, including any obligations it performs through supplier, and shall be fully responsible for all acts or omissions of its sub-suppliers. The use of any sub-suppliers by Odyssey VC shall not relieve or release Odyssey VC from any of its obligations under the Agreement.
Exhibit A – Support
1 CompliantCloud VIEW Audit Trails (VIEW) Free User Support. Standard support for Customer Users is available from Odyssey VC at no additional charge according to these terms.
1.1 Support Time: VIEW Free User Support is available during standard business hours*.
Standard Business Hours (Monday through Friday, excluding local public holidays)
Europe
8:00AM – 5:00PM (GMT)
*Not exceeding 40hrs / month of free support
1.2 VIEW Free User Support consists of:
1.2.1 First line support includes, but not limited to (a) a direct response to users with respect to inquiries concerning the performance, functionality, or operation of the Service, (b) a direct response to user with respect to problems or issues with the Service, (c) a diagnosis of problems or issues of the Service, and (d) a resolution of problems or issues with the Service.
1.2.2 Product updates, fixes, security alerts, and critical patch updates.
1.2.3 General releases, limited releases (where applicable), maintenance releases, and documentation updates.
1.2.4 Access to VIEW Support for assistance through support portal and email.
1.3 VIEW User Support can be reached in the following ways:
1.3.1 Via Support Portal: https://viewsupport.compliantcloud.com
1.3.2 By email: ticket@compliantcloud.com
1.4 The following items are considered out of scope for standard VIEW Free User Support:
1.4.1 Training/how to sessions
1.4.2 Modification of customer data
1.4.3 Setting up reports
1.5 Response Times: VIEW Inclusive User Support will use reasonable endeavours to respond to the requesting user within the time frame defined in the table below:
Priority
Definition
First Response
Normal
Routine Service Requests includes:
- How to queries
- Product Functionality
- Other technical or performance issues
24 Hours
2 Return of Customer Data. Upon termination or expiration of the Agreement, Odyssey VC shall (i) ensure that Customer has access to the Customer Data from the Service for a period no more than thirty (30) days. In no event may Odyssey VC preclude Customer from retrieving the Customer Data after the expiration or termination of the Agreement during this thirty (30) day period.
3 Testing. Customers may not, (i) conduct security, integrity, penetration, vulnerability, or similar testing on the Service, (ii) use any software tool designed to automatically emulate the actions of a human user (such tools are commonly referred to as robots) in conjunction with the Service, or (iii) attempt to access the data of another Odyssey VC customer (whether or not for test purposes).
4 Service Updates and Configuration. Odyssey VC will provide Customer notice (normally via email) before performing a major upgrade. Advance notification may not be given for minor upgrades or patches, where such upgrades and patches do not cause system unavailability and are required as part of maintaining the Service validated state. All upgrades and patches are mandatory when associated with the maintenance of the Service validated state. In addition, Odyssey VC controls the configuration and management of VIEW and will manage all configuration changes it deems necessary and appropriate.
5 Backup. All Customer Data is copied at least daily to a secure and physically remote secondary data center.
6 Disaster Recovery. In the event of a disaster that renders the primary data center inoperable, disaster recovery procedures will be followed. The recovery procedures involve restoring the last backup of Customer Data to the secondary data center. The Service shall have disaster recovery procedures with a Recovery Point Objective (RPO) of not more than 4 hours and a Recovery Time Objective (RTO) of not more than 24 hours. Disaster Recovery testing can be purchased as part of an infrastructure management Add-on Service from Odyssey VC support.
7 General. Odyssey VC reserves the right to change existing infrastructure, hardware and underlying software used to provide the Service as expansion and new technology deem necessary. Odyssey VC assumes no responsibility for delays or problems that result from Customer’s computing or networking environment, Customer’s third-party vendors and/or Customer’s local or long-distance telephone carriers or ISPs.