AGREED TERMS
YOUR ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF CLAUSE 15 (LIMITATION OF LIABILITY).
1 About us
1.1 Contacting us: To contact us email hi@duck.pizza. To give us any formal notice in relation to a matter under this Agreement, please see clause 19 below.
2 Definitions
2.1 In this Agreement, the following terms shall have the following meanings:
Acceptable Use Policy
means our Acceptable Use Policy available here, as updated or amended from time to time.
Analyses
means the results of any analysis carried out by us from the Test Responses in accordance with clause 16.6.3.1
Authorised Users
any employees, agents and independent contractors who are authorised by you to use the Platform, as further described in clause 8.1.6.
Additional Online/Offline Fees
means any fees applicable for the Additional Online/Offline as set out when placing or amending your Order.
Additional Online/Offline Services
means any Additional Online/Offline services that you request from us from time to time as part of your Order in accordance with clauses 4.1 or 5.1
Business Day
a day other than a Saturday, Sunday or public holiday in Australia when banks are open for business.
Commencement Date
the date of our acceptance of your Order in accordance with clause 4.4.
Confidential Information
any proprietary or confidential information (in any format) which is disclosed, directly or indirectly by the either party to the other whether before, on, or after the Commencement Date, including information which relates to the business affairs, customers, suppliers, plans, intentions or market opportunities of the disclosing party, or the products, technology, programs, software, source code, developments, operations, inventions, processes, trade secrets, Intellectual Property Rights and personnel of the disclosing party, in all cases whether or not marked as "confidential".
Control
a business entity shall be deemed to "control" another business entity if it owns, directly or indirectly, in excess of 50% of the outstanding voting securities or capital stock of such business entity, or any other comparable equity or ownership interest with respect to a business entity other than a corporation.
Customer Participant
means a person engaged directly by you, who participates in Tests in order to provide Test Responses through the Platform.
Customer Property
means all material uploaded or inputted into the Platform by you, including any games, apps or advertising content that is to form the subject of any Tests.
Customer Transactions
means those transactions by Referral Leads that are eligible for Rewards pursuant to the ‘Customer Transactions’ section of this Agreement. Customer Transactions may include customer purchases or customer signups, as further described in the Refferal Tool.
Data Protection Legislation
means all applicable laws relating to data protection and privacy in force from time to time as applicable to a party or the Services including the following laws to the extent applicable in the circumstances: (i) Data Protection Act 2018; (ii) the UK GDPR (having the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018); (iii) the General Data Protection Regulation (EU) 2016/679 (“EU GDPR”); (iv) the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426); (v) any laws which implement any of the above laws and any corresponding or equivalent national laws (including the California Consumer Privacy Act ("CCPA") where applicable); and (vi) any laws which replace, extend, re-enact, consolidate or amend any of the foregoing whether or not before or after the date of this Agreement from the date they come into force.
Fee
the fees payable by you for access to the Platform and the supply of Services in accordance with clause 4, including the Subscription Fees, Additional Online/Offline Fees and Usage Fees.
The Platform
means (i) the Platform; (ii) any pre-existing Intellectual Property Rights related to the Platform or any Services; (iii) any Analyses; and (iv) any updates, modifications or derivative works relating to the property set out in (i) to (iii).
Insolvency Event
where a party ceases or threatens to cease to carry on business, becomes insolvent or is presumed to be insolvent under the Corporations Act 2001 (Cth), including but not limited to being unable to pay its debts as and when they become due and payable, has an administrator, receiver, receiver and manager, or liquidator appointed over the whole or any part of its assets, enters into a deed of company arrangement with creditors, or has an order made or passes a resolution for its winding up (except for the purpose of a solvent reconstruction or amalgamation), or is subject to any similar or equivalent process under any relevant law in Australia or any jurisdiction.
Intellectual Property Rights
patents, utility models, rights to inventions, copyright and related rights, trade marks and service marks, trade names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to preserve the confidentiality of information (including know-how and trade secrets) and any other intellectual property rights, including all applications for (and rights to apply for and be granted), renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world.
Order
an order for Services placed by you in accordance with the process set out in clause 4.1 (or amended in accordance with clause 5.1) and accepted by us in accordance with clause 4.3.
Participant
means a Customer Participant.
Personal Data
has the meaning given to that term in the Data Protection Legislation.
Platform
means the websites owned by Pretty Good Playtesting (including the Pretty Good Playtesting online customer web platform), the Pretty Good Playtesting APIs and all associated mobile and desktop applications.
Privacy Policy
means the privacy policy available here, as updated or amended from time to time.
Refferal Program
means our Refferal Program as described in this Agreement.
Referral Lead
means a customer prospect who has signed up to the Pretty Good Playtesting Platform after click on the Referral Link that we have made available to you via the Refferal Tool within the Platform.
Referral Link
means the unique tracking link you are provided to promote through various channels of your choosing.
Referral Policies
means the policies applicable to Referrers which we may make available to you from time to time.
Refferal Tool
means the tool that we make available to you upon your acceptance into the Refferal Program and for you to use in order to participate in the Refferal Program.
Referral Visitor
means a customer prospect who clicks on the Referral Link that we have made available to you via the Refferal Tool.
Rewards
means the rewards you earn and receive as part of this Refferal Program, more detail of which is found
Services
the services supplied by us to you under this Agreement as set out in an Order including the Subscription and any Additional Online/Offline Services.
Subscription
means a rolling monthly subscription for the Services and access to the Platform as described in clause 4.1 below.
Subscription Fee
means the recurring fees applicable to your Subscription Plan as set out in the Order.
Subscription Plan
means the subscription package selected by you
Subscription Month
means the rolling monthly periods during which we will provide you with the Services during the Term.
Term
the term of this Agreement from the start date of your Subscription until termination in accordance with clause 6.
Tests
means the testing of the Customer Content by the Participants via the Platform in order to obtain the Test Responses.
Test Responses
the responses and any recordings (including audio and visual recordings) of the Participants.
Usage Fees
means usage fees, in excess of any included allowances included in your Subscription Plan.
VAT
value added tax or any equivalent tax chargeable in the UK or elsewhere.
You and/or Referrer
means the party, other than Pretty Good Playtesting Limited, entering into this Agreement and participating in the Refferal Program.
3 Our Contract with You
3.1 This Agreement applies to any Order by you for the supply of Services by us to the exclusion of any other terms that you seek to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing. By placing an Order, you are accepting this Agreement on your own behalf or, where you are agreeing on behalf of a third party (e.g. a company) you confirm that you have the permission to enter into this Agreement on behalf of such third party.
3.2 This Agreement is the entire agreement between you and us in relation to its subject matter. You acknowledge that you have not relied on any statement, promise or representation or assurance or warranty that is not set out in this Agreement.
3.3 This Agreement is made only in the English language.
3.4 You are advised to print off a copy of these Terms or save them to your computer for future reference.
3.5 You must be at least 13 years of age to use this Platform. By using this Platform and by agreeing to these terms and conditions, you warrant and represent that you are at least 13 years of age.
4 Subscriptions and Placing Orders
4.1 Subscriptions are chosen prior to setting up an Account on the Pretty Good Playtesting Platform. Details of the Subscription Plan (including the included allowances for that Subscription Plan) and Subscription Fee will be set out on the Platform at the time you sign up for the Subscription. At any time, you can request Additional Online/Offline Services to be added to your Subscription Plan or specific Orders. The details of the Additional Online/Offline Services (including any additional Fees) will be set out within the related invoices which will be accessible via your billing page on your Account.
4.2 Each Order you place will specify the details of the Services that you require including the Customer Property that is to be Tested + the duration of the Services.
4.3 Each Order placed by you in accordance with clause 4.2 constitutes an offer to buy the Services under the terms of this Agreement. Only once your Order has placed and paid for in accordance with this clause 4.4, will there be a binding agreement between us.
4.4 The Commencement Date will be the earlier of:
4.4.1 Our acceptance of your Order in accordance with clause 4.4; or
4.4.2 The date on which the Tests via the Platform commence.
5 Amending your Subscription
5.1 At any point you can change your Subscription Plan. The changes to your Subscription Fees and/or Usage Fees will be notified to you at the time you request any amendment to your Order.
5.2 Any increases made to your Subscription Plan will be effective immediately.
5.3 There will be no refund provided to any request for decrease in your Subscription Plan.
5.4 Any decreases made to your Subscription Plan will be effective from the next billing month.
6 Cancelling an Order or Terminating this Agreement
6.1 The Term of this Agreement will commence on the date you first create your Subscription and will remain in effect until terminated in accordance with this clause 6. Each Order will commence on the Commencement Date and will continue until the earlier of the date when the Tests are complete or until this Agreement is terminated in accordance with this clause 6.
6.2 You can cancel your Subscription and terminate this Agreement for any reason via your billing section on your Pretty Good Playtesting Account. For the avoidance of doubt, the cancelation of your Subscription will take effect from the end of the current Subscription period and you will not be entitled to any refund of any Subscription Fees or Additional Online/Offline Services paid in advance.
6.3 We can terminate this agreement without reason by providing you with at least 30 days' advanced notice. Where you have pre-paid Subscription Fees or Additional Online/Offline Service Fees that you have not used by the date of such termination, you will be given a pro-rata refund as your sole remedy.
6.4 Either party may terminate this Agreement for cause
6.4.1 if the other party is in material breach of this Agreement and the material breach remains uncured for a period of 30 days from receipt of notice by the other party; or
6.4.2 if the other party suffers an Insolvency Event.
6.5 We may also terminate this Agreement immediately upon notice to you
6.5.1 if you are in breach of the Acceptable Use Policy;
6.5.2 if you are 30 days or more overdue in paying pay any Fees in accordance with clause 11.2; or
6.5.3 if any representation or warranty provided by you under this Agreement proves to be untrue in any material respect.
6.6 Upon the Termination of this Agreement:
6.6.1 unless permitted in accordance with clause 6.2, all your rights under this Agreement will immediately terminate and you will no longer be able to use the Platform or receive the Services after the end of your current billing period;
6.6.2 all Fees (including any outstanding Subscription Fees, Additional Online/Offline Service Fees and/or any Usage Fees incurred up to the date of termination) shall become immediately due and payable;
6.6.3 where the agreement is terminated by us in accordance with clauses 5.4 or 5.5, you will not be entitled to any refund of Fees.
7 Our Services
7.1 We provide the Platform to enable you to gain feedback and insight into your content, including but not limited to games, apps, design, branding, marketing or advertising content.
7.2 You can upload the Customer Property onto the Platform in order for Participants to be able to carry out the Tests.
Customer Participants
7.3 You have the option to recruit and manage your own Customer Participants outside the Platform and only use Platform as a test distribution and feedback platform.
7.4 Where you engage Customer Participants to take part in the Tests, you may offer rewards and incentives to those Customer Participants independently of the Platform. You will remain responsible to the Customer Participants for the payment or provision of such direct rewards and incentives and we will have no obligation or liability for such rewards and incentives.
7.5 When you engage Customer Participants, you can direct those Customer Participants to our support team for any technical issues they may exercise during the live test. This support is solely for in-game technical and/or Platform queries they may have and not for queries relating to rewards, incentives or the Customer Property.
Execution of Tests
7.10 You will be responsible for ensuring that the Customer Property is properly uploaded onto the Platform and functioning as expected prior to running any Tests. We will not be responsible for any failure to perform the Tests that is not directly attributable to a fault with the Platform. If any Tests cannot be completed by the Participants as a result of any issues with the Customer Property or any other issues (other than a fault with the Platform), you will remain responsible for any costs incurred on the platform. You will also remain responsible for any additional Usage Costs incurred on the Platform and will be billed accordingly on your next invoice due.
8 Your Obligations and Our Obligations
8.1 It is your responsibility to ensure that:
8.1.1 the terms of your Order are complete and accurate;
8.1.2 you cooperate with us in all matters relating to the Services;
8.1.3 you provide us with such information and materials (including all Customer Property) we may reasonably require in order to supply the Services in a timely manner, and ensure that such information is complete and accurate in all material respects;
8.1.4 you obtain and maintain all necessary licences, permissions and consents in all Customer Property which may be required to make use of the Services before the date on which the Services are to start;
8.1.5 you comply with all applicable laws and regulations;
8.1.6 you will create accounts and permit access to the Platform for any of your employees, agents and/or independent contractors (including those of your Affiliates) only as is necessary for the Services and the execution of the Tests (the "Authorised Users");
8.1.7 you will ensure that any accounts for Authorised Users are kept secure in accordance with good industry practice, including: (i) deletion of any accounts when an employee leaves your employment; (ii) ensuring that Authorised Users keep their password details secure and (ii) notifying us as soon as reasonably possible if you become aware of any unauthorised access to any of you accounts;
8.1.8 you will ensure that the Authorised Users access the Platform and the Services in accordance with the terms of this Agreement and you shall remain responsible for the actions of the Authorised Users at all times;
8.1.9 you will use all reasonable endeavours and take all reasonable actions to prevent any unauthorised access to or use of the Platform, and, in the event of any unauthorised access or use, promptly notify us;
8.1.10 you will comply, and ensure that all Authorised Users will comply, with the Acceptable Use Policy;
8.1.11 you shall be solely responsible for procuring, maintaining and securing your network connections and telecommunications links from your systems to our data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to your network connections or telecommunications links or caused by the internet.
8.2 We will use reasonable endeavours to ensure that the Platform and the Services remain available.
8.3 We may change or discontinue any of the Services from time to time. We will provide you at least three months’ prior notice if we discontinue material functionality of a Service that you are using, or materially alter a customer-facing API that you are using in a backwards-incompatible fashion, except that this notice will not be required if the three month notice period (a) would pose a security or intellectual property issue to us or the Services, (b) is economically or technically burdensome, or (c) would cause us to violate legal requirements.
9 Silly Little guy Clause
9.1 You may be entitled to temporary extra usage limits of the Services if you can demonstrate beyond reasonable doubt that you are a silly little guy. This clause is subject to our sole discretion and we reserve the right to refuse to apply this clause to any customer.
10 Fees and Usage Charges
10.1 In consideration of us providing the Services you must pay our Fees in accordance with this clause
10.2 The Subscription Fees and Additional Online/Offline Service Fees are the prices quoted on our Platform at the time you set up your Subscription or add the Additional Online/Offline Services.
10.3 Any Subscription Fee is payable in advance of usage and will commence from the date your Subscription commences and due on same date each month thereafter.
10.4 The Additional Online/Offline Service Fees are payable in arrears in the month following the date that they have been incurred.
10.5 In addition to the Subscription Fees and Additional Online/Offline Service Fees, you must pay any applicable Usage Fees incurred from your use of the Platform and any Services that are outside of your included allowance based on your Subscription Plan. The Usage Fees are calculated based on the number of hours of recordings uploaded to the Platform in a Subscription Month at the rates set out on our website. Usage Fees are payable in arrears in the month following the date that they have been incurred.
10.6 We take all reasonable care to ensure that the Fees are correct at the time when the relevant Order was entered into the system. However, please see 10.7 for what happens if we discover an error in the price of the Subscription and Additional Online/Offline Services you ordered.
10.7 We reserve the right to increase the Fees from time to time. Where we make any changes to the Fees, we will notify you. Any change to the Subscription Fees will not take effect until the renewal of your Subscription (i.e. the next month, if you are on a monthly Subscription, or the start of the year for an annual Subscription). If you do not wish to pay the increased Fees, you can terminate the Agreement in accordance with clause 6.2
10.8 Our Fees are exclusive of GST. Where GST is payable in respect of some or all of the Services, you must pay us such additional amounts in respect of GST, at the applicable rate, at the same time as you pay the Fees.
10.9 It is always possible that, despite our reasonable efforts, some of the Services on our site may be incorrectly priced. Where the correct price for the Services is less than the price stated on our site, we will charge the lower amount and if the correct price for the Services is higher than the price stated on our site, we will contact you as soon as possible to inform you of this error and we will give you the option of continuing to purchase the Services at the correct price or cancelling your order. We will not process your order until we have your instructions. If we are unable to contact you using the contact details you provided during the order process, we will treat the order as cancelled and notify you. However, if we mistakenly accept and process your order where a pricing error is obvious and unmistakable and could reasonably have been recognised by you as a mispricing, we may cancel supply of the Services and refund you any sums you have paid.
11 Payment
11.1 The Subscription Fees are payable in advance of each Subscription Month. Any Additional Online/Offline Service Fees are payable on or before any Order placement on the Platform and any Usage Fees attributable to your use of the Platform and the Service in the previous month are payable in arrears. Prior to the start of each Subscription Month, we will issue you with an invoice that covers the following month's Subscription Fees and the previous Subscription Month's Usage Fees (a "Monthly Invoice"). Each Monthly Invoice will include the following details:
11.1.1 Subscription Fees payable
11.1.2 Usage from the previous month
11.1.3 Available allowances from your Subscription
11.1.4 Additional fees incurred based on your Usage
11.1.5 Any Additional Online/Offline Service Fee
11.2 Subject to clause 11.6, all Orders are non-cancellable upon your digital acceptance, and Fees are non-refundable once you have accepted an Order. You shall pay each Monthly Invoice within fourteen (14) days from the date of the Monthly Invoice.
11.3 All amounts payable by you under this Agreement are exclusive of amounts in respect of VAT chargeable from time to time. Where any taxable supply for VAT purposes is made under this Agreement us, you shall, on receipt of a valid VAT invoice from us, pay to us such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
11.4 If you fail to make a payment due to us under this Agreement by the applicable due date, then, without limiting our remedies under this Agreement, you shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgement. Interest under this clause 11.4 shall accrue each day at 4% a year above the Bank of England's base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
11.5 Where you dispute a payment in good faith, you must immediately notify us by emailing hi@duck.pizza and pay the portion of the invoice not in dispute. If you dispute a payment in good faith, the interest payable under clause 11.4 is only payable after the dispute is resolved, on sums found or agreed to be due, from 5 days after the dispute is resolved until payment.
11.6 Where we are unable or unwilling to continue providing access to the Platform under the terms of this Agreement for reasons other than breach of the Agreement by you, we will refund to you a prorated portion of the Subscription Fees and Additional Online/Offline Service Fees already paid by you in advance for the unused portion of the Subscription, and upon such refund shall have no further liability to you with respect to such discontinuance of Services. Except as provided for in the previous sentence, all Fees owing are non-refundable.
12 Refferal Program
12 1 This Agreement applies to any Referral Lead made by you for the supply of Services by us to the Customer to the exclusion of any other terms that you seek to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing. By referring our business, you are accepting this Agreement on your own behalf or, where you are agreeing on behalf of a third party (e.g. a company) you confirm that you have the permission to enter into this Agreement on behalf of such third party.
Refferal Program Limits
12.5 We will pay you Rewards as described in the Refferal Tool (or if applicable, in the Program Policies) for each new Customer who completes an applicable Customer Transaction after clicking on an Referral Lead made available by you, provided that you remain eligible to receive Rewards pursuant to the terms of this Agreement.
12.6 The start of the Customer’s subscription is determined by the date of the first purchase or sign up (as applicable) of the Subscription Service by the Customer and you will receive a Reward payment for that Customer Transaction only, regardless of any additional purchases made by that customer during their Subscription Service.
12.7 You will not be entitled to receive Rewards on any additional purchases of Pretty Good Playtesting Services by that same Customer after their first purchase.
Eligibility
12.8 To be eligible for Rewards:
12.8.1 an Referral Lead must be accepted and valid in accordance with the ‘Acceptance and Validity’ section
12.8.2 a Customer Transaction must have occurred,
12.8.3 You are not eligible to receive a Reward or any other compensation from us based on transactions for Other Products or if:
-12.8.3.1 such compensation is disallowed or limited by the law in Australia and/or the laws and regulations of your jurisdiction;
-12.8.3.2 the applicable Customer objects to or prohibits such compensation or excludes such compensation from its payments to us or Pretty Good Playtesting Referrers;
-12.8.4.3 the Customer has paid or will pay such Rewards, or other compensation directly to you,
-12.8.5.4 the Reward payment has been obtained by fraudulent means, misuse of the Referral Link, in violation of any Refferal Program terms and conditions that we make available to you, misuse of the Refferal Tool or by any other means that we deem to breach the spirit of the Refferal Program.
Acceptance and Validity
12.9 You will only be eligible for a Reward payment for any Customer Transactions that derived from Referral Leads generated by the Referral Link that we make available to you and are accepted by Pretty Good Playtesting. An Referral Lead will be considered valid and accepted if, in our reasonable determination:
12.9.1 it is a new potential customer of ours, and
-12.9.2 is not, at the time of submission or sixty (60) days prior, one of our pre-existing customers, or involved in our active sales process. Notwithstanding the foregoing, we may choose not to accept a Referral Lead in our reasonable discretion.
12.10 A Referral Lead is not considered valid if it’s first click on the Referral Link is after this Agreement has expired or terminated.
Engagement with Prospects
12.11 Once we have received the Referral Lead information, we will engage with the prospect directly, regardless of whether or not the Referral Lead is valid.
12.12 If an Referral Lead is not valid then we may choose to maintain it in our database and we may choose to engage with such Referral Lead.
12.13 Any engagement between Pretty Good Playtesting and an Referral Lead will be at Pretty Good Playtesting's discretion.
Referral Rewards
12.14 In order to receive payment under this Agreement, you must have:
12.14.1 agreed to the terms of this Agreement (generally completed through the Refferal Tool and/or at the time of submitting your Acceptance Form);
12.14.2 completed all steps necessary to create your account in the Refferal Tool in accordance with our directions (if applicable),
12.14.3 have a valid referral with whom has purchased our Services.
Requirements for Payment; Forfeiture
12.15 Notwithstanding the foregoing or anything to the contrary in this Agreement, if any of the requirements set forth in this section 12 remain outstanding for six (6) months immediately following the close of a Customer Transaction, then your right to receive a Reward/s arising from any and all Customer Transactions with the associated Customer will be forever forfeited (each, a “Forfeited Transaction”).
12.16 We will have no obligation to pay you a Reward associated with a Forfeited Transaction. Once you comply with all of the requirements in section 5, then you will be eligible to receive Reward on Customer Transactions, as long as these Customer Transactions do not involve the same Customer associated with a Forfeited Transaction.
Changes to Refferal Program
12.17 We may change or discontinue any or all parts of the Refferal Program benefits or offerings at any time without notice.
13 Intellectual Property Rights
13.1 You acknowledge and agree that we (and/or our licensors) own the Intellectual Property Rights in the The Platform.
13.2 Subject to the terms and conditions of this Agreement and payment of any Fees, we grant to you a non-exclusive, non-transferrable, right and limited license to access and use the Platform during Term, solely for the purpose of carrying out the Tests and for your own internal business use.
13.3 Your access to the Platform and Services confers no title or ownership to the The Platform.
13.4 We acknowledge and agree that you (and/or your licensors) own the Intellectual Property Rights in the Customer Property.
13.5 You hereby grant to us a limited, revocable, non-exclusive license to use the Customer Property solely for the duration of the Term and purposes needed to perform our obligations in connection with the Agreement.
13.6 In addition, you hereby grant to us a perpetual, irrevocable, royalty-free, non-exclusive, worldwide license:
13.6.1 to use and incorporate into the Platform or Services, any suggestion, enhancement request, recommendation, correction or other feedback provided by you in relation to the Services;
13.6.2 to use, copy and create derivative works of the Tests and Test Responses for our own internal business purposes; and
13.6.3 to create:
- 13.6.3.1 analyses using data derived from your use of the Platform and Services (“Analyses”)
14 Data Protection
14.1 Your use of the Platform and the Services requires us to process Personal Data, including the Personal Data of the Participants. In order to comply with the Data Protection Legislation, the terms of our Data Processing Addendum will apply to the Services. By agreeing to the terms of this Agreement, you are also deemed to have agreed to the terms of the Data Processing Addendum.
15 Limitation of Liability
15.1 Except as expressly and specifically provided in this Agreement:
15.1.1 you assume sole responsibility for results obtained from the use of the Platform, and for conclusions drawn from such use. We shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to us by you in connection with the Platform, or any actions taken by us at your direction;
15.1.2 we shall not be liable for your use of the Platform in an application, environment or with devices for which it was not designed or contemplated;
15.1.3 we shall not be liable in respect of any modifications, alterations, combinations or enhancements of the Platform not created by or for us
15.2 The Platform is provided to the Customer on an "as is" basis. All warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law with regard to the Platform, the Services and/or the Tests are, to the fullest extent permitted by applicable law, excluded from this Agreement, including the implied warranties of merchantability, or fitness for a particular purpose.
15.3 We do not endorse any Participant, Test, Test Response, or survey response (including, without limitation, any opinion, recommendation or advice expressed by any Participant). The Customer is solely responsible for any decisions made based on such information.
15.4 Nothing in this Agreement limits any liability which cannot legally be limited, including liability for:
1.4.1 death or personal injury caused by negligence; and
15.4.2 fraud or fraudulent misrepresentation.
15.5 Subject to clause 15.4, we will not be liable to you, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this Agreement for:
15.5.1 loss of profits;
15.5.2 loss of sales or business;
15.5.3 loss of agreements or contracts;
15.5.4 loss of anticipated savings;
15.5.5 loss of use or corruption of software, data or information;
15.5.6 loss of or damage to goodwill;
15.5.7 any pure economic loss; and
15.5.8 any indirect, special or consequential loss
15.6 Subject to clause 15.4, our total liability to you arising under or in connection with this Agreement, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, will be limited to the total Charges paid by you under this Agreement in the 12 month period immediately preceding the date on which the claim arose.
15.7 Unless you notify us that you intend to make a claim in respect of an event within the notice period, we shall have no liability for that event. The notice period for an event shall start on the day on which you became, or ought reasonably to have become, aware of you having grounds to make a claim in respect of the event and shall expire 12 months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
16 Warranties and Indemnity
16.1 Each Party warrants and represents that:
16.1.1 it is duly organised, validly existing and in good standing under the laws of the jurisdiction of its incorporation and has the power and authority to enter into this Agreement and to fully perform its obligations hereunder;
16.1.2 it has all necessary rights and authority to execute, deliver and perform this Agreement;
16.1.3 it shall comply with all applicable laws and regulations in performing its obligations under this Agreement; and
16.1.4 nothing in this Agreement will place it in breach or default of any other instrument or obligation
16.2 You warrant and represent that:
16.2.1 you are over the age of 14;
16.2.2 the Customer Property will: (i) be and comprise your original work(s); and (ii) shall not infringe any person's copyright or any other Intellectual Property Rights;
16.2.3 you have obtained and will obtain all necessary consents, rights, licences and clearances which may be required for the use of the Customer Property on the Platform and carry out the Tests;
16.2.4 the Customer Property will comply with all applicable laws;
16.2.5 you shall not do or permit any act or thing or make any statement or disclosure which will, or is reasonably likely to, bring the Platform, us, our officers, employees or Affiliates into disrepute or tarnish in any way our name or brand; and
16.2.6 the Customer Property shall be free from any viruses, material programming errors, ‘Trojan Horses’, harmful code or malware, or backdoor code or other access methods.
16.3 We do not warrant that:
16.3.1 your use of the Platform will be uninterrupted or error-free
16.3.2 that the Platform, any documentation and/or the information obtained by you through the Services will meet your requirements; or
16.3.3 the Platform will be free from vulnerabilities, including any weaknesses in the software and hardware components that when exploited, results in a negative impact to confidentiality, integrity, or availability of the Platform.
16.4 You agree to indemnify us against all liabilities, costs, expenses, damages and losses suffered or incurred by us arising out of or in connection with:
16.4.1 any claim made against us that the Customer Property or any element within the Customer Property infringes any third party Intellectual Property Rights;
16.4.2 any claim from a Customer Participant that they have not received any reward or compensation from their participation in the Tests;
16.4.3 any claim that you have breached the confidentiality provisions of this Agreement; or
16.4.4 any claim that you have breached any applicable laws.
16.5 We agree to indemnify you against all liabilities, costs, expenses, damages and losses suffered or incurred by us arising out of or in connection with any claim made against you that the Platform or any element of the Service (excluding any Customer Property) infringes any third party Intellectual Property Rights.
16.6 The indemnities set out in clause 16.1 and 16.2 shall only be enforceable, if the indemnified party:
16.6.1 promptly notifies the indemnifying party in writing of any claim under the indemnity;
16.6.2 makes no admission of guilt or liability without the written consent of the indemnifying party; and
16.6.3 allows the indemnifying party sole control, and all negotiations for settlement, of any such claim and gives the indemnifying party reasonable assistance in relation to such claim, provided that the indemnifying shall take due account of the indemnified party's representations in the conduct, negotiation and/or settlement of any such claim.
17 Confidentiality
17.1 Each party undertakes that it will not at any time disclose to any person any of the other party's Confidential Information, except as permitted by clause 16.2.
17.2 Each party may disclose the other's confidential information:
17.2.1 to such of its respective employees, officers, representatives, subcontractors or advisers (including those of its Affiliates) who need to know such information for the purposes of exercising their respective rights or carrying out our respective obligations under this Agreement. Prior to making any such disclosure, each party will each ensure that such employees, officers, representatives, subcontractors or advisers comply with this clause 15; and
17.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
17.3 Each party may only use the other's confidential information for the purpose of fulfilling our respective obligations under this Agreement.
18 Events outside our control
18.1 We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under this Agreement that is caused by any act or event beyond our reasonable control (Event Outside Our Control).
18.2 If an Event Outside Our Control takes place that affects the performance of our obligations under the Contract:
18.2.1 we will contact you as soon as reasonably possible to notify you; and
18.2.2 our obligations under the Agreement will be suspended and the time for performance of our obligations will be extended for the duration of the Event Outside Our Control. We will arrange a new date for performance of the Services with you after the Event Outside Our Control is over.
18.3 You may cancel this Agreement where it is affected by an Event Outside Our Control that has continued for more than 30 days. To cancel please contact us. If you opt to cancel we will refund the price you have paid, less the charges reasonably and actually incurred us by in performing the Services up to the date of the occurrence of the Event Outside Our Control.
19 Non-solicitation
19.1 You must not attempt to procure services that are competitive with the Services from any of our directors, employees or consultants, whether as an employee or on a freelance basis, during the period that we are providing the Services to you and for a period of six months following termination or expiry of this Agreement.
20 Communication between us
20.1 When we refer to "in writing" in these Terms, this includes email.
20.2 Any notice or other communication given by one of us to the other under or in connection with this Agreement must be in writing and be delivered personally, sent by pre-paid first class post or other next working day delivery service, or email.
20.3 A notice or other communication is deemed to have been received:
20.3.1 if delivered personally, on signature of a delivery receipt;
20.3.2 if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second working day after posting; or
20.3.3 if sent by email, at 9.00 am the next working day after transmission.
20.4 In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an email, that such email was sent to the specified email address of the addressee.
20.5 The provisions of this clause will not apply to the service of any proceedings or other documents in any legal action.
21 General
Publicity
21.1 You agree that we may use your company name and logo on our client lists on the Platform, our website, and any of our marketing materials.
Assignment, transfer and sub-contracting
21.2 We may assign, transfer or sub-contract our rights and obligations under this Agreement to another entity but will always notify you by posting on our webpage or via the Platform if this happens.
21.3 You may only assign, transfer or sub-contract your rights or your obligations under this Agreement to another person if we agree in writing.
Variation
21.4 We may need to update this Agreement and change the terms. Where we make any important changes to this Agreement, including the Acceptable Use Policy and/or the Privacy Policy, we will notify you and provide you with an updated copy of the relevant terms.
21.5 Except as otherwise indicated below, modifications to these Terms will take effect at the next renewal of your Subscription (i.e, the next month for monthly subscriptions or the next year for annual subscriptions) and will automatically apply as of the renewal date unless you elect to cancel your Subscription. Notwithstanding the foregoing, in some cases (e.g., to address compliance with Laws, or as necessary for new features) we may specify that such modifications become effective during your then-current Subscription. If the effective date of such modifications is during your then-current Subscription and you object to the modifications, then (as your exclusive remedy) you may terminate your Subscription and any relevant Orders upon notice to us, and we will refund you any Subscription Fees and/or Additional Online/Offline Service Fees you have pre-paid for the terminated portion of the applicable Subscription. To exercise this right, you must provide us with notice of your objection and termination within thirty (30) days of us providing notice of the modifications. For the avoidance of doubt, any Order is subject to the version of these Terms in effect at the time of the Order.
Waiver
21.6 If we do not insist that you perform any of your obligations under this Agreement, or if we do not enforce our rights against you, or if we delay in doing so, that will not mean that we have waived our rights against you or that you do not have to comply with those obligations. If we do waive any rights, we will only do so in writing, and that will not mean that we will automatically waive any right related to any later default by you.
Severance.
21.7 Each paragraph of this Agreement operates separately. If any court or relevant authority decides that any of them is unlawful or unenforceable, the remaining paragraphs will remain in full force and effect.
Third-party rights
21.8 This Agreement is between you and us. No other person has any rights to enforce any of its terms.
Governing law and jurisdiction
21.9 This Agreement is governed by English law and we each irrevocably agree to submit all disputes arising out of or in connection with this Agreement to the exclusive jurisdiction of the English courts.