Professional Services Product Terms

Effective starting 1 February 2023

Our performance and your receipt of Professional Services is subject to our Customer Agreement together with these Terms.

1. Purchasing Professional Services.

1.1. Performance. We shall perform the Professional Services as set forth in our Proposal.

1.2. Restrictions. Except as otherwise permitted in your Proposal, or by us in writing, you will not:

(a)           do anything or cause anything to be done in relation to our Professional Services that could damage our reputation; or

(b)           obtain our Professional Services for the purpose of sub-contracting or reselling our Professional Services (whether on their own or together with your own additional goods or services).

1.3. Refund. If you, acting reasonably, are dissatisfied with our provision of any of the Professional Services, you may notify us in writing within 30 days of the Services being completed, and we (at our discretion, acting reasonably) will determine an appropriate refund of the Fees paid for those Professional Services or other remedy.

2. Variations.

2.1. Variation requests. You may request to vary the Proposal through your Account or by sending an email to sales@octopus.com. We will contact you in writing via the contact details that you have provided us to, at our option:

(a)           accept the Variation and notify you of any change to the Fees or timeline as a result of the Variation;

(b)           refuse the Variation; or

(c)            refuse the Variation and propose an alternative Variation which you may accept or refuse by written reply to sales@octopus.com.

Upon our mutual acceptance of a Variation, the Variation becomes part of the Proposal upon the date agreed in the Variation, or if no date is agreed, upon the date it is accepted. In the event of any inconsistency between a Variation and the original Proposal, the Variation shall prevail on and from its effective date.

2.2. Fee reductions. If an agreed Variation results in a reduction in Professional Services, the Fees shall be reduced as set out in the Variation, or, if not set out in the Variation, as we calculate proportionally to the reduction in Professional Services. We may recover from you our reasonable demobilisation costs or expenses incurred as a result of the reduction in Professional Services. If you have paid the Fees in advance, we shall, at our option, refund you the balance or provide you a credit towards any other amounts payable by you to us (under this Agreement or otherwise).

2.3. Fee increases. If an agreed Variation results in an increase in Professional Services, or results in new Professional Services being provided, you shall be liable to pay any additional Fees in the amounts and at the times set out in the Variation, or, if not set out in the Variation, as we calculate according to our then-current standard fees for those Professional Services and payable upon demand.

3. Intellectual Property

3.1. Octopus Created IP. All Octopus Created IP belongs to us. We grant you, upon full and final payment of all fees or other monies owed to us under your Order, a worldwide license to use, copy, modify, and deal with, Octopus Created IP, solely so that you may have the benefit of the Professional Services. This license expressly excludes the right to independently sell or commercialise any Octopus Created IP. For the absence of doubt, Octopus Created IP is our Confidential Information. You may not modify, copy, or reverse engineer or otherwise attempt to discover the source code or other components of any Octopus Created IP without our express written permission.

3.2. Your IP. You retain all Intellectual Property in Your IP. You grant us a worldwide, royalty-free license to use, copy, modify, and otherwise deal with Your IP, so that we can provide the Professional Services.

4. Term. Unless otherwise specified in the Proposal, the Order Term commences on the Kick-Off Date and expires 90 days after the Kick-Off Date unless terminated earlier in accordance with these Terms and the Customer Agreement.

5. Warranties. We warrant that the Professional Services we provide to you will be as described in the Proposal. We do not warrant any particular result or outcome of the Professional Services, including, without limitation, that the Professional Services we provide to you will fix, solve, remedy, alleviate, improve or inform any problem or issue you may have.

6. Definitions. Any defined words not defined in this Section have the meaning given to them in the Customer Agreement. In these Terms, unless the context requires otherwise:

Intellectual Property means all copyright, patent rights and rights and inventions, trademarks, rights in databases, Confidential Information, and other intellectual property rights, however, described, anywhere in the world.

Kick-Off Date means the date specified in the Proposal for the initial meeting to discuss the performance of the Professional Services, or the date upon which we commence performing the Professional Services, whichever is earlier.

Octopus Created IP means any Intellectual Property created by us in the course or as a result of performing the Professional Services.

Professional Services means the technical, support, or other professional services set out in the Proposal.

Proposal means your Order and associated documents together setting out the Professional Services which we shall perform for you.

Terms means these Professional Services Terms.

Variation means a variation to the Proposal in accordance with Section 2.

Your IP means any Intellectual Property in any Confidential Information or other materials that you provide us.