TERMS AND CONDITIONS
Last Updated: 23 August 2022
1. Getting Started
1.1 Welcome to OnePulse! We’re happy to have you on board. These Terms and Conditions set out how You may use Our Platform and Services. They also describe Our obligations and liabilities to you with respect Our Platform and the Services we provide You. Please read them carefully.
1.2 When Our Relationship Starts and Ends: Our Agreement with You commences on the Start Date stated in Your Order Form and continues for the Initial Term. After that, the Order Form shall be automatically renewed for successive periods of the Renewal Term, unless: (a) no Renewal Term is stated in the Order Form, or (b) either party provides written notice of termination to the other party before the expiration of the minimum Non-Renewal Notice Period prior to the end of the relevant Initial Term or any Renewal Term; or (c) otherwise terminated in accordance with the provisions of the Agreement.
1.3 About Our Quotations: We may provide You with a Quotation for the provision of Our Services to You. This Quotation will not be legally binding on Us or You until it becomes an Order Form. A Quotation becomes an Order Form when it is (1) signed by You, and (2) agreed by Us – either when we subsequently countersign it or when we commence our provision of the Services to you.
1.4 We may make changes to these Terms and Conditions: We’ve aimed to keep our legal documents as simple and readable as possible, but We may update them from time to time. We will let you know when We have updated these Terms and Conditions the next time You log-in to the Platform. You may also be notified by email (if You subscribe to receiving email updates from Us). By continuing to access Our Platform and use Our Services, You confirm your acceptance to Our updated Terms and Conditions. You can find archived versions of our previous terms and conditions of use here.
1.5 Where to find copies of Your Order Forms and Our current Terms and Conditions:
You can learn more about how to locate your Order Form, Terms and Conditions, Policies, invoices and receipts here.
1.6 Where to find the meanings of definitions We use in this Agreement: You can find definitions for the words we use in this agreement at the end of these Terms and Conditions.
2. Our Provision and Your Use of our Platform and the Service
2.1 Provision of Services. (i) You may access and use Our Platform and Services, and (ii) We will make the Our Platform and Services available to You and provide the Support Program to the You for your use in accordance with this Agreement.
2.2 Your Account. You will designate an Administrative User of the Services, and who will be responsible for establishing and managing Your use of the Services, including the creation of authentication credentials to access the Your instance of Our Platform. You are solely responsible for maintaining the status of Your Users. You will safeguard all User authentication credentials in Your possession or under Your control. You are responsible for all activities of Your Users (except to the extent resulting from any breach or non-conformance by Us of Our obligations under this Agreement).
2.3 Seats. If You are paying a Subscription Fee for Our Services, We will state on your Order Form how many Publisher Seats and Limited Seats that Subscription Fee is for. If You use Our Services in excess of that number of Publisher Seats or Limited Seats, You agree to pay us any further Subscription Fees for those seats. Neither a Publisher Seat or Limited Seat can be shared between individual people, so if you do this, you agree to pay us further Subscription Fees for each of those seats.
2.4 Your General Responsibilities. You are solely responsible for obtaining and maintaining your internet access to the Services. You are solely responsible for the accuracy, quality and legality of the Your Data that You or Your Users input into the Our Platform. You must comply and will ensure that Your Users and Clients comply with the Acceptable Use Policy, all other Policies and terms of this Agreement. You are responsible for acts and omissions of any of Your Users relating to this Agreement as though they were Your own. You must not use the Services in any way which breaches this Agreement, any applicable laws or for any other unlawful purposes.
2.5 Technology Improvement. We may modify the Our Platform as We determine necessary to improve it or to reflect changes to Our Platform, technology, information security practices and/or any legal requirements. We will notify You in advance of any material modifications which substantially and adversely affect our Service except in cases of emergency, (such as critical vulnerability remediation, in which case We will provide as much prior notice as is reasonable in the circumstances). We will not be obligated to provide You with any refund for modifications made by Us to address (i) changes in applicable law, (ii) changes in its third-party certification standards we may obtain from time to time (such as ISO 27001, ISO 27018 or PCI DSS), or (iii) a security vulnerability, unless, those changes make it impossible for You to continue to use Our Service.
2.6 Free Trials: We may provide you with a free trial of our Services. If we do, the terms of this Agreement still apply. Any free trial of our Services will continue until expiration of the earlier of (i) the Initial Term, or (ii) Your allocated Credit allowance being used up. Any Free Trial Period is for Your testing and evaluation purposes only and subject to any usage limits specified by Us. A Free Trial Period may be cancelled by Us at any time. During any Free Trial Period, the Services are provided “as-is” and without any warranty of any kind and the warranties in clause 5 and indemnity in clause 3.5 do not apply, to the extent that We are able to exclude such liability in accordance with the applicable law. Our Support Program does not apply to any Free Trial Period. Please note that if you do not continue to use our Services following any free trial period, Your Data may be irretrievably deleted from our Platform at the end of the trial.
3. Intellectual Property Rights & Permissions to Each Other
3.1 License by Us. Subject to any specific limits set out in the relevant Order Form, from the Start Date until termination of the Agreement by either party, We grant You a limited, non-exclusive, non-transferable, royalty-free, revokable, worldwide license, without right to sub-license to access and use the Services strictly in accordance with this Agreement.
3.2 License by You. You grant to Us, a limited, non-exclusive, non-transferable, royalty-free sub-licensable license to: (a) use Your Data, solely as necessary to perform the Agreement and (b) for the purposes of reporting on the performance, developing and providing new and different products for You and our other customers (provided that such use is aggregated and anonymised and does not identify the You or Your Client (if applicable). We remain responsible to the You for any acts and omissions of any sub-licensors we may work with in our performance of this Agreement.
3.3 Ownership of Intellectual Property Rights.
- a.) Ownership and Use of Your Data. You retain all of Your rights, title, interest and Intellectual Property Rights in and to the Your Data and Your Confidential Information. No ownership interest in Your Data or Your Confidential Information is transferred or conveyed to Us by virtue of this Agreement. We will use Your Data and Your Confidential Information only as described in this Agreement.
- b.) Our Intellectual Property and Ownership Rights. As between You and Us, both We and Our licensors retain and own all rights, title, interest and Intellectual Property Rights in and to Our Platform or Our Confidential Information, and all enhancements or improvements to, or derivative works with respect to any of it created or developed by or on behalf of Us. Nothing in this Agreement transfers or conveys to You any Intellectual Property Rights in Our Platform and Our Confidential Information.
3.4 Restrictions. You will not: (i) reproduce, publish, display, distribute, sell, share, sublicense, transfer, rent, lease, publish, broadcast, timeshare, loan, disclose or otherwise make available Our Platform or any part of it to any third party; (ii) reverse engineer, disassemble, decompile or otherwise attempt to derive source code from the Our Platform, or any part of it; (iii) modify, translate, adapt, alter or create derivative works based upon Our Platform or any part of it; (iv) remove any proprietary notices, labels, trademarks or service marks on Our Platform; or (v) use Our Platform for any purposes other than those explicitly stated in this Agreement.
- a.) Defence and indemnity. If any third party makes a claim against the You that alleges the Our Platform infringes the Intellectual Property Rights of that party, then upon notification of such claim, We will, at our sole cost and expense, defend You against such claim and any related proceeding brought by such third party against You, and indemnify You from and against all damages, fines and penalties finally awarded against You or agreed to be paid by You in a written settlement approved in writing by Us, and resulting from Our infringement. Our obligations under this clause 3.5 (a) are subject to the Your compliance with the indemnification conditions in clause 3.5 (b) below.
- b.) Indemnification conditions: You must: (i) provide Us with prompt written notice of any claim made against you that Our Platform infringes the Intellectual Property Rights of that party, (ii) grant Us sole control of the defence and settlement of that claim against You, (iii) not enter into any settlement agreement of compromise the claim without Our prior written consent, (iv) provide us with all reasonable information and assistance with respect to the claim (at Our expense), and (v) use all commercially reasonable efforts to mitigate any loss, damage or costs related to the claim against you.
- c.) Our mitigation rights: If the Our Platform becomes (or in Our opinion is likely to become) the subject of any Intellectual Property Rights infringement claim, We may (at Our sole expense) either: (i) procure for the You the right to continue using the Our Platform; (ii) replace or modify the relevant infringing Platform elements in a functionally equivalent manner so that it is no longer infringing; of (iii) terminate the applicable Order Form and refund to the You a pro-rata amount of any Fees prepaid and applicable to the unused portion of the terminated Order Form.
- d.) Exclusions. We will have no obligation with respect to any Intellectual Property Rights infringement claim to the extent that it is based on (i) any use of the Our Platform not in accordance with this Agreement, (ii) the combination of Our Platform with other products, equipment, software, services or data not supplied by Us where the infringement would not have occurred but for such combination, and (iii) any of Your Data
4. Our Fees & Your Payment Obligations
4.1 Fees. Your Fees for the Services are set out in each Order Form. We will issue you with invoices for the Fees for each Invoicing Period stated in the Order Form. You are not entitled to any refund of fees paid or relief from fees due if any Credits are not used within 12 months of the Start Date of the Order Form pursuant to which they were issued. You may not carry over any of the unused Credits to You next Renewal Term.
4.2 Payment of Services Fees. You agree to pay Us the Fees for the Services as set out in each Order Form by on or before each Payment Term without any set-off or deductions. Unless specified otherwise in the applicable Order Form, You will make all payments within 30 days of receipt of Our invoice in the currency stated on the relevant Order Form.
4.3 Sales Tax, Value Added Taxes, etc. All Fees set out on the Order Form are exclusive of any value added taxes or similar taxes levied by any taxing authority on the Services provided by Us to the You. Any such taxes on the Services are payable by You in addition to the Fees, on receipt of a valid invoice from Us.
4.4 Overdue Payments: Without limiting any other right or remedy to Us, if You fail to make any payment due to Us under the Agreement by the due date for payment, We shall have the right to: (i) charge You interest on the overdue amount at the rate of 5% per annum above the Bank of England’s base rate accruing on a daily basis from the due date until the date of actual payment of the overdue amount, (ii) suspend delivery of the Services until such time as the outstanding Fees are paid and (iii) reimbursement by You of Our reasonable costs in Our enforcement of this clause 4.
5. How This Agreement Comes to an End
5.1 Automatic Termination: Save for any provisions that survive termination of this Agreement for any reason, this Agreement automatically terminates on expiration of the latest Initial Term or Renewal Term in the Order Form, (for example, if there are 3 Order Forms, each with an Initial Term that expires on 1 June 2023, and one is renewed for a further 12 months to 1 June 2024, and is not further renewed after that, and no other Order Forms were agreed, then this Agreement terminates automatically on 1 June 2024).
5.2 Termination on Breach: Without prejudice to any other rights and remedies to which the parties may be entitled, either party may terminate the Agreement or any Order Form immediately by written notice if: (a) the other party commits a non-remediable material breach of that Agreement; (b) the other party fails to cure any remediable material breach within 30 days of being notified in writing of such breach; (c) the other party persistently breaches this agreement, (d) the other party is deemed to be unable to pay its debts as and when they fall due or (e) the other party calls a meeting for the purpose of passing a resolution to wind up its company (other than for the purposes of a solvent reconstruction or amalgamation), or (f) a resolution is passed or the other party presents or has presented a petition to wind up or present or have presented a petition to appoint an administrator or have an administrative receiver or receiver appointed to the whole or any part of the other party’s business, undertaking, property or assets.
5.3 Post Termination Obligations: Following termination of the Agreement (or Order Form if the context requires): (a) You shall immediately pay to Us all outstanding Fees, (b) save where stated otherwise in this Agreement, all rights and licences granted under the Agreement, shall cease; (c) the accrued rights and remedies of the parties as at termination shall not be affected, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination or expiry; (d) on request, the parties shall return or destroy (and certify destruction of) all copies of any Confidential Information of the other party disclosed to it.
5.4 Survival: Any rights and obligations under the Agreement which by their nature should survive, will remain in effect after performance, termination or expiration of the Agreement.
6. Our Promises – and Yours
6.1 Our Warranties We warrant to You that:
- a.) Performance Warranty. During the Initial Term and any Subsequent Renewal Term, Our Platform will conform in all material respects with the Policies, Supplemental Materials and this Agreement.
- b.) Viruses. We will use commercially reasonable efforts, using applicable current industry practices, to ensure that the Our Platform contains no material computer virus, Trojan horse, worm or other similar malicious code.
- c.) Support Program. We will provide the Support Program in a good, professional and workmanlike manner, consistent with applicable industry standards.
- d.) Infringement. Our provision to You of the Services do not infringe any third-party Intellectual Property Rights.
- e.) Compliance with Law. The Services will comply with all laws applicable to Us in Our provision of Services.
6.2 Performance Remedy. If Our Platform fails to conform to the warranty set out in clause 6.1 (a) above, and You provide Us with written notice of the non-conformance, then, Your exclusive remedy and Our sole obligation is for Us to either repair or, at Our option, replace the non-conforming elements of the Our Platform or, if We are unable to correct the non-conformance within 30 days of receipt of such written notice from You, You may terminate the applicable Services, and We will refund to You a pro-rata amount of any Fees prepaid to Us and applicable to the unutilised portion of the terminated Services.
6.3 Infringement Remedy: Your sole and exclusive remedy for any non-conformance with the warranty in clause 5.1(d) above will be Your defence and indemnification rights in clause 3.5 below and Your termination right in clause 5 below.
6.4 Bugs: While We make reasonable efforts to ensure the Our Platform is free from bugs, errors or omissions, We do not make any warranty to the You that Our Platform is free from all bugs, errors, or omissions.
6.5 Disclaimer of implied warranties: The express terms and conditions of the Agreement shall apply in place of all warranties, conditions, terms, representations, statements, undertakings, and obligations whether expressed or implied by statute, common law, custom, usage or otherwise, all of which are excluded to the fullest extent permitted by law. In particular, We do not warrant that the Our Platform is fit for a particular purpose unless specifically stated otherwise in the relevant Order Form.
6.6 Sole benefit: The warranties in clause 6.1 this Agreement are for Your sole benefit.
6.7 Your Warranties: You warrant and represent that you have the power and authority necessary to enter into this Agreement and perform the obligations within it and that your use of the Service will comply with all applicable law.
7. Confidential Information & Publicity
7.1 Restrictions: A party receiving Confidential Information (the “Recipient”) may use it only for the purposes for which it was provided under the Agreement. Confidential Information may be disclosed only to employees or contractors obligated to the Recipient under similar confidentiality restrictions and only for the purposes for which it was provided under the Agreement.
7.2 Exclusions: The obligations set out in clause 7.1 do not apply to information which (a) is rightfully obtained by the Recipient without breach of any obligation to maintain its confidentiality; (b) is or becomes known to the public through no act or omission of the Recipient; (c) the Recipient develops independently without using Confidential Information of the other party; or (d) subject to clause 7.3 below, is disclosed in response to a legal obligation, court or governmental order.
7.3 Notification: If either party receives any request to disclose and/or intends to disclose all or any Confidential Information pursuant to clause 7.2(d) above that party agrees to consult the other before disclosing any such Confidential Information (provided it is not prohibited to do so by law). In so consulting the, the disclosing party agrees that it will act reasonably and in good faith and will duly consider any representations the other party may make relating to the proposed disclosure or otherwise of such Confidential Information.
7.4 Publicity: Unless you tell us otherwise, We may use the You and Your Client’s name, logos and trade marks on our website and in Our sales materials for marketing and business development purposes. Any further use by Us is subject to the Your prior written consent (such consent not to be unreasonably withheld or delayed). We welcome any PR or marketing activities by You or Your Clients and consent to the use of Our name, logos and trade marks by You and Your Clients for such purposes. Further We encourage You and your Clients to reach out to it for any collaborations in this regard.
8. Data Protection
8.1 Legal Compliance: Both parties will comply with the Data Protection Legislation, and this section is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.
8.2 Relationship of Parties: For the purposes of this Agreement and the Data Protection Legislation, You are the data controller and We are the data processor in respect of any personal data You share with Us in order for us to provide the Services to You pursuant to this Agreement.
8.3 Consent: By entering into this Agreement, and each time You provide or cause Us to be provided with personal data (such as User credentials), You confirm that you have obtained all required consents from any data subjects in order for Us to process the personal data and any personal data in Your Data in accordance with this Agreement, and that such consent was lawfully obtained. You acknowledge that We are reliant on You for direction as to the extent to which We are entitled to use and process the personal data you provide Us pursuant to this Agreement. You also acknowledge that You control what data is uploaded onto the Services and therefore what personal data is processed by Us. Consequently, We will not be liable for any claim brought by a data subject arising from any act or omission by You in this regard.
8.4 Purposes of processing: We will only process personal data provided by You in accordance with the Agreement to (i) provide You with the Services and (ii) to develop Our services and provide new and different products/services to You and Our customers (provided that such personal data is aggregated and anonymised and does not identify You or any living person identified in the data), and (iii) on Your reasonable and lawful documented instructions, and (iv) in accordance with any other applicable laws.
8.5 Obligations: In relation to any personal data processed by Us in Our performance of this Agreement, We will:
- a.) process that personal data only in accordance with this clause 8 and any other written instructions You provide Us;
- b.) ensure that We have 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;
- c.) ensure that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential;
- d.) not transfer any such personal data outside of the UK or European Economic Area unless it has complied with its applicable obligations under the Data Protection Legislation in ensuring adequate safeguards in relation to such transfer and You have provided consent (not to be unreasonably withheld or delayed);
- e.) provide reasonable assistance to You, at Your cost, in responding to any request from a data subject and in ensuring compliance with Your obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
- f.) notify You without undue delay on becoming aware of a personal data breach;
- g.) at Your written direction,, delete or return personal data and copies of it to You within a reasonable period following the date of termination of the Agreement unless required by law to store the personal data; and
- h.) maintain complete and accurate records and information to demonstrate its compliance with this clause 8 and, subject to the following sentence, allow for audits by You or Your designated auditor solely for the purposes of checking Our compliance with this clause, provided that (i) such audit is at Your expense and no more than once per year (except where required by a relevant regulatory authority) (ii) reasonable written notice is given to Us, (iii) such audit shall not materially interfere with Our day to day business operations, and (iv) You shall comply with Our security policies. You agree that the first step in relation to any audit as required under this clause or by the relevant regulatory authority shall be for Us to provide You with a report verifying Our compliance with its obligations under this clause (which shall constitute Our Confidential Information). You shall only request a further audit if it shows reasonable grounds for believing the report to be insufficient.
8.6 Sub-processing: You consent to Us appointing third-party processors of personal data under the Agreement. We confirm that We have entered or (as the case may be) will enter with the third-party processor into a written agreement incorporating terms which are substantially similar to those set out in this clause. As between You and Us, We shall remain fully liable for all acts or omissions of any third-party processor appointed by Us pursuant to this clause. We will make a list of Our third-party processors available to You upon request.
8.7 Changes to Data Protection Legislation. The parties will act in good faith to agree an amendment to this section (such agreement not to be unreasonably withheld or delayed) should an amendment be required by any law or to reflect any change to this relationship.
9. Limitation of Liability
9.1 Limitation: Except as stated otherwise in this Agreement:
- a.) all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from this Agreement; and
- b.) You are solely responsible for any use You make of Our Platform and You assume sole responsibility for results obtained from the use of Our Platform by You and Your Clients, and for any conclusions drawn from such use;
- c.) We shall have no liability for any damage caused by any Integrations, errors or omissions in any information or instructions provided to Us by You, Your third-party vendors or Your Clients in connection with their use of Our Platform; and
- d.) We are not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and You acknowledges that the Our Platform may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
9.2 Exceptions: Nothing in this Agreement excludes the liability of either party to the other for:
- a.) for death or personal injury caused by the other party’s negligence;
- b.) for fraud or fraudulent misrepresentation;
- c.) misuse of any Intellectual Property Rights;
- d.) payment of any Fees properly due;
- e.) any matter which cannot be excluded by law.
9.3 Exclusion of certain claims: With the exception of clause 9.2, neither party will be liable to the other whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation or otherwise for any (i) loss of profits; or (ii) loss of business; or (iii) depletion of goodwill and similar losses; or (iv) loss or corruption of any data or information; or (v) pure economic loss; or (vi) loss of use; or (vii) any special, indirect or consequential loss, costs, damages or expenses.
9.4 Cap: Subject to this clause 9, (a) both parties total aggregate liability to the other in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance of this Agreement shall be limited to the lesser of the total Fees paid by You during the 12 months immediately preceding the date on which the claim arose or £500,000; and (b) with respect to any indemnity provided, both parties total aggregate liability to the other pursuant to this Agreement with respect to such indemnity shall be limited to £500,000.
10. Miscellaneous Provisions
10.1 Interpretation. References to include or including means including without limitation. Headings are for convenience only and shall be ignored in interpreting this Agreement. Words in the singular shall include the plural and vice versa. Any reference to a statutory provision includes a reference to any modification or re-enactment of it from time to time. A reference to writing or written includes faxes and e-signature software (such as DocuSign), but not email.
10.2 Construction. These Terms and Conditions apply to the provision of the Services. The parties may enter into one or more Order Forms. Upon execution, each Order Form will become a part of this Agreement. To the extent of any inconsistency, between these Terms and Conditions and any Order Form, the Order form prevails. To the extent of any inconsistency between two or more Order Forms, the most recent Order Form prevails.
10.3 Compliance with law: Both parties will comply with all applicable laws and regulations with respect to their obligations under this Agreement.
10.4 Entire Agreement. Subject to clause 9.2, these Terms and Conditions and the Order Form contain all terms agreed between the parties and supersede all previous and contemporaneous oral and written Agreements between the parties relating to its subject matter. In entering into this Agreement neither party has relied on, and neither party will have any right or remedy based on, any statement, representation or warranty (whether made negligently or innocently), except those expressly set out in this Agreement.
10.5 Assignment. You may not assign any part of this Agreement to any third party without Our written consent. We may assign our rights and transfer its obligations under this Agreement upon written notice to You. Any other attempt to assign is void.
10.6 Severability. If any term (or part of a term) of this Agreement is invalid, illegal, or unenforceable, the rest of the Agreement will continue in force unaffected. The affected provision shall be changed and interpreted so as to best accomplish the original objectives of it within the limits of the applicable law or court decision.
10.7 Force Majeure. A party is not liable under the Agreement for non-performance caused by events or conditions beyond that party’s reasonable control including, natural disasters, terrorist attacks, wars, riots and armed conflicts, collapse of buildings, fires, floods explosions storms or significant accidents, failure of a utility service or transport or telecommunications network, pandemics, malicious damage, compliance with any law or governmental order, breakdown of plant or machinery. The party suffering from the force majeure event must as soon as reasonably practicable after the start of the force majeure event but no later than 7 days from its start, notify the other party in writing of the force majeure event, the date on which it started, its likely or potential duration, and the effect of the force majeure event on its ability to perform any of its obligations under the agreement and use all reasonable endeavours to mitigate the effect of the force majeure event on the performance of its obligations. In the event any such event continues beyond a period of thirty (30) days, the party not suffering from the force majeure event may terminate the Agreement.
10.8 No Waiver. Neither party will be treated as having waived any rights by not exercising (or delaying the exercise of) any rights under this Agreement. Any waiver of any right or remedy under this Agreement or by law is only effective if given in writing.
10.9 No Agency. This Agreement does not create any agency, partnership, or joint venture between the parties.
10.10 No Third-Party Beneficiaries. This Agreement does not confer any benefits on any third party unless it expressly states that it does.
10.11 Change of Control: We may terminate this Agreement on 90 days written notice to the You and provide a pro rata refund of any Fees paid in advance pursuant to any Order Form, if the beneficial ownership of more than 50% of the issued share capital of Our company or the legal power to direct or cause the direction of the general management of Our company changes (save any for internal restructures between Our entities).
10.12 Amendments. Any amendment must be (i) in writing, (ii) expressly state that it is amending this Agreement and (iii) be signed.
10.13 Counterparts. The parties may execute this Agreement in counterparts, including facsimile, PDF, and other electronic copies, which taken together will constitute one instrument.
10.14 Subcontracting. Either party may sub-contract its obligations under this Agreement, in whole or in part, without the prior written consent of the other, provided that the sub-contracting party remains fully liable for all such sub-contracted obligations and accepts full liability as between the parties for the actions and/or inactions of its sub-contractors as if such actions and/or inactions were its own.
10.15 Notices. All notices must be in English, in writing and addressed to Us at our registered office address stated in the Order Form and with a copy send to our email address at [email protected] Notices to You will be sent to the email or postal address in the Order Form. Notice will be treated as given on receipt, as verified by written or automated receipt or by electronic log (as applicable). Postal notices must be sent by first class mail to the other party’s postal address as set out in the Order Form. Postal notices shall be deemed received on the second Business Day after the day of despatch.
10.16 Governing Law and Venue. This Agreement is governed by English law and the parties submit to the exclusive jurisdiction of the English courts in relation to any dispute (contractual or non-contractual) concerning this Agreement. The parties irrevocably agree that the venue for any litigation or proceeding under this Agreement will be London. The exception to this is that either party may apply to any court for an injunction or other relief to protect its Intellectual Property Rights.
11. Definitions and Interpretation
11.1 Definitions. In this Agreement:
“Acceptable Use Policy” means the Our Acceptable Use Policy.
“Administrative User” means any of Your employees or independent contractors or Affiliate employees or independent contracts who are authorised to use the administrative features and functions of Our Platform to administer access to, and use of Our Platform.
“Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with another entity.
“Agreement” means these Terms and Conditions, any Order Form and the Policies.
“Client” means any entity identified as Your client in the relevant section of an Order Form or any other Your clients who You act on behalf of in your use of our Services.
“Confidential Information” means the terms of this Agreement and any information disclosed by (or on behalf of) one party (or an Affiliate) to the other party in connection with this Agreement that is (a) marked as confidential or, (2) from its nature, content or the circumstances in which it is disclosed, might reasonably be considered to be confidential.
“Credit” is a voucher for the number of credits stated on Your Order Form that You can redeem with Us in order to use Our Services;
“Data Protection Legislation” means, all applicable legislation regarding privacy and the protection of “personal data” or “personally identifiable information” (as defined by such laws) including the retained EU law version of the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018 and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426). The terms “data controller” “data processor”, personal data”, “process” and “processing” shall have the same meanings as set out in the Data Protection Legislation.
“Start Date” is the date stated in the relevant Order Form.
“End User” means any individual who has been authorised by You to use any features and functionality of Our Platform or Services.
“Fee” means the fee payable by You to Us for each Chargeable Event at the applicable rates set out on the Order Form.
“Free Trial Period” means use of the Services for trial purposes pursuant to an Order Form that specifies that Your use is for a Free Trial.
“Information Security Policy” means the Our Information Security Policy.
“Initial Term” is the time period stated as the ‘Initial Term’ in the relevant Order Form.
“Intellectual Property Rights” means all trade secrets, patents and patent applications, trademarks (whether registered or unregistered and including any goodwill acquired in such trademarks), service marks, trade names, copyrights, moral rights, database rights, design rights, rights in know-how, rights in Confidential Information, rights in inventions (whether patentable or not) and all other intellectual property and proprietary rights (whether registered or unregistered), and all other equivalent or similar rights which may subsist anywhere in the world.
“Limited Seat” is a single User licence We provide You to use and access certain limited features and functions of Our Platform and Services.
“Order Form” means any (a) Order Form signed by Us and You describing the Services, Fees, Subscription Term and other matters agreed parties pursuant to these Terms and Conditions, or (b) electronic version of a Quotation that is subsequently converted into an Order Form in accordance with the process described in clause 1.3.
“Payment Terms” means is the terms stated as the ‘Payment Terms in the relevant Order Form.
“Platform” means the on-line consumer survey, insights and data collaboration software and tools that help You and/or your Clients better understand their audience, and includes any Supplemental Materials we may make available to you from time to time.
“Policies” are the Acceptable Use Policy, Information Security Policy, Services Levels and Support Program.
“Publisher Seat” a single User licence we provide You to use and access Our Platform and Services. Each Publisher Seat can access premium features and functions that are intended for use by a single User.
“Pulse” is a set of questions set by You targeted at a specific audience chosen by You.
“Quotation” is a non-legally binding document of the same name which contains a price quote to You for the Services.
“Recipient” has the meaning given to it in clause 7.2.
“Renewal Term” means is the time period stated as the ‘renewal term’ in the relevant Order Form.
“Services” means access to Our Platform to which You either pay a Subscription Fee for or purchase Credits to redeem against, in order to access and use it in accordance with this Agreement.
“Subscription Fee” means is the Fee payable by the You to Us in consideration for your use of our Services as may be specified on an Order Form.
“Supplemental Materials” means guidelines applicable to the use You may make of Our Platform and Services and includes any usage instructions, FAQ’s and other help materials. Supplemental Materials are not required for use of the Services and may be accessed and used by You in Your sole discretion.
“Support Program” is Our support and maintenance services program.
“Terms and Conditions” mean these terms and conditions of use.
“User” means any Administrative User or End User. You are solely responsible to Us for any acts and omissions of any User in breach of this Agreement as if they were Your own acts and omissions.
“You” means the entity identified in the Order Form in the “About You” section. In this Agreement, We will also refer to You as “Your”.
“Your Data” means any data that You or Your Users input into the Our Platform for processing as part of the Services, including any Personal Data forming part of such data.