Trial Terms and Conditions
This Licence Agreement, including the attached physical or online Order Form process (this “Agreement“), is a binding agreement between FYLD Limited, UK company number 12481168, registered office 5 New Street Square, London, EC4A 3TW (“Supplier“) and the entity identified on the Order Form as the Customer (“Customer“). Online Order Form details will be confirmed in writing to the email address provided on sign up.
Please read this Agreement carefully. It provides a licence from the Supplier to the Customer to use the Platform as described in the Order Form including any updates to it (“Platform”), a licence from the Customer to the Supplier over certain data and images collected through the use of the Platform and contains warranty information and liability disclaimers. If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity and its affiliates to this Agreement. If you do not have such authority or if you do not agree with the terms and conditions of this Agreement, do not install or use the Platform, and you must not accept this Agreement.
1. FYLD Platform Licence
Supplier hereby grants to Customer (subject to Customer’s compliance with the terms of this Agreement), a personal, non-transferable, non-exclusive, non-sublicensable, limited licence to use the Platform for Customer’s own business purposes. Customer is not permitted to: (i) edit, alter, modify, adapt, translate or otherwise change the whole or any part of the Platform, nor permit the whole or any part of the Platform to be combined with, or become incorporated in, any other platform or software, nor decompile, disassemble or reverse engineer or make derivative works of the Platform or attempt to do any such things; (ii) reproduce, copy, distribute, resell or otherwise use the Platform for any commercial purpose other than the purpose for which the Platform was provided; (iii) allow any third party to use the Platform on behalf of or for the benefit of any third party; (iv) use the Platform in any way which breaches any applicable local, national or international law or for any purpose that Supplier considers is a breach of this Agreement; (v) remove, or obscure any trademarks or proprietary rights notices provided on or with the Platform; (vi) use the Platform for purposes of competitive analysis of the Platform or the development of a competing Platform, product or service; (vii) link to any third party platform or tool other than by way of authorized API provided and agreed by the Supplier. The Customer may only allow the agreed number of customer support employees or contactors as set out in the Order Form (“Authorised Users”) to use the Platform and any increase must be agreed in writing between the parties.
Supplier shall retain ownership of the Platform. Customer does not acquire any ownership interest in the Platform under this Agreement, or any other rights, other than to use the Platform in accordance with the Agreement. Supplier and its Suppliers and service providers reserve and shall retain their entire right, title, and interest in and to the Platform and all Intellectual Property Rights arising out of or relating to the Platform, except as expressly granted to the Customer in this Agreement. “Intellectual Property Rights” means all patents, copyright and related rights, moral rights, trademarks 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 use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications 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.
All Fees are payable as set forth in the Order Form and are non-refundable. Any renewal of the Term or provision of continued Services shall not be effective or commence until the Fees for such renewal have been paid in full. Any change to Fees including for any renewal Term or change in scope of Services shall be agreed in writing between the parties.
2. Responsibility for Use of Platform
Customer is responsible and liable for all use of the Platform. Specifically, and without limitation, Customer is responsible and liable for all actions and failures to take required actions with respect to the Platform and for all content provided and generated by Authorised Users through using the Platform. In particular, Customer shall ensure all of its Authorised Users using the Platform: (i) are appropriately trained and comply with all applicable Platform user guides provided by Supplier from time to time; and (ii) comply with all health and safety guidance and laws. It is the Customer’s responsibility to ensure it has equipment (of appropriate specification and compatible with the Platform) and internet connection to enable the Service. Customer is responsible for all charges for internet access (including mobile data usage) charged by its internet supplier.
As part of the Platform, Supplier may agree in the Order Form to provide devices such as phones or tablets (“Devices“) so that the Customer may be able to access the Platform. The Customer shall use all reasonable care to ensure that these are not damaged, lost or stolen while in its/ Authorised Users’ care. Title to the Devices shall not pass to the Customer and its Authorised Users and the Customer is responsible for how its Authorised Users use the Devices. The Devices shall not be used for any other purpose other than to access the Platform. The Customer will ensure that the Devices are covered by their insurance in respect of damage, loss or theft and will reimburse the Supplier if it is unable to return the Devices on termination on this Agreement in the same condition as it was received by the Customer.
3. Right to use Materials
Through the Customer’s use of the Platform, audio-visual clips will be generated by the Customer/its Authorised Users. Customer shall own any Intellectual Property Rights in such clips and any Intellectual Property Rights otherwise comprised in such materials such as the Customer’s own logos and trademarks (“Materials”) and Supplier shall provide access to such Materials for Customer through the Platform. Materials will only be hosted and available for Customer’s use for the period set out in clause 5.
Customer hereby grants to Supplier (subject to Supplier’s compliance with data protection legislation and provided that such Materials are not used in a way that identifies the Customer to any third party customer of Supplier), an unlimited, worldwide, perpetual, royalty-free, non-exclusive licence to use such Materials for the Supplier’s own business purposes, including for aggregating, analysing, evaluating, reporting on, and deriving insight and intelligence from the Materials for the purposes of optimising, adjusting, improving, reporting on the Platform, and any other services, products or technology operated or which may be developed and operated by the Supplier.
Customer also acknowledges and agrees that Supplier may collect and use further analytic data around and about use of the Platform (on an anonymous basis), data shall be owned by Supplier and may be used by the Supplier for its own business purposes including analyzing and improving the Platform and services.
4. Data Protection
This Agreement shall run for the term in the Order Form (“Term”). Customer may terminate the Agreement at any time upon written notice to Supplier. Supplier can also terminate the Agreement immediately if Customer fails to comply with any term of this Agreement. Upon such termination, for any reason: (i) the licenses granted by this Agreement will immediately terminate and Customer agree to stop all access and use of the Platform; (ii) the provisions that by their nature continue and survive will survive any termination of this Agreement; and (iii) Supplier shall make available the Customer’s Materials to the Customer for a period of 3 months, beyond which, Supplier reserves the right to delete or charge a reasonable fee to the Customer to cover the Supplier’s costs of hosting and returning such Materials.
6. Limitation of Liability/Disclaimer
Nothing in this Agreement shall limit or exclude either party’s liability for death or personal injury caused by its negligence or for fraud or any other damage that cannot be excluded by law. Supplier only gives a warranty that the Platform will substantially contain the functionality described in the Order Form when properly installed and operated in accordance with Supplier’s instructions. Except as set out in this Agreement, the Platform is provided to Customer on an “AS IS” basis and Supplier expressly disclaims all warranties whether express, implied, statutory or otherwise with respect for the Platform and Supplier provides no warranty or undertaking that the Platform will meet the Customer’s requirements or be error-free or operate without interruption. Supplier shall not be liable to Customer or any other person for any: (i) lost revenues or profits, delays, interruptions or loss of business, data or goodwill; (ii) for any indirect or consequential loss, in each case howsoever arising and regardless of whether or not such loss or damage was foreseeable. In no event with Supplier’s liability to Customer under or in connection with this Agreement exceed the total amounts paid or payable to the Supplier pursuant to this Agreement for the Platform during the first 12 months of the Term.
Except as expressly and specifically provided in this Agreement, the Customer assumes sole responsibility for the use of the results obtained from the use of the Platform, and for conclusions drawn from the results. In particular, Supplier shall not be liable for any use of such results and information or reliance upon the same.
Each party may be given access to Confidential Information from the other party in order to perform its obligations under this Agreement. Each party shall hold the other’s Confidential Information in confidence and not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of this Agreement. Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement. A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction. “Confidential Information” means all information (whether written, oral or in some other form) disclosed to or obtained by one party (whether directly or indirectly) from the other (whether before or after the signing of this Agreement), including all information relating to the other’s, business, operations, systems, processes, source code (if applicable) products, trade secrets, know how, contracts, finances, plans, strategies or current, former or prospective clients, customers, partners or suppliers (together with copies made of any of the foregoing) and which information is marked as being confidential or might reasonably be assumed to be confidential, but excluding information which: (i) is available to the public other than because of any breach of this Agreement; (ii) is, when it is supplied, already known to whoever it is disclosed to in circumstances in which they are not prevented from disclosing it to others; (iii) is independently obtained by whoever it is disclosed to in circumstances in which they are not prevented from disclosing it to others.
This Agreement, and any dispute arising out of or in connection with this Agreement, shall be governed by and construed in accordance with the laws of England and Wales and each party agrees to submit to the exclusive jurisdiction of the courts of England and Wales. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
This Agreement including the Order Form, constitutes the sole and entire agreement between Customer and Supplier with respect to the subject matter contained herein and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
This Agreement may only be amended, modified, or supplemented by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving.