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1. Element Human Limited, a company incorporated and registered in England and Wales with company number 08587003 whose registered office is at 7 Savoy Court, London WC2R 0EX (“Element Human”); and
2. The entity set out in the Head Sheet (the “Client”).
(A) Element Human has developed the Platform (as defined below)
(B) The Client wishes to use certain features of the Platform and receive the Services (as defined below).
(C) Element Human has agreed to provide and the Client has agreed to take and pay for the Services subject to the terms and conditions of this agreement.
1.1 The definitions and rules of interpretation in this clause, together with any terms defined in the Head Sheet, shall apply in these Terms of Service.
Activity: the assessment of a Unit by Participants using the Platform.
Additional Fees: has the meaning given to it in clause 3.5.
Affiliates: in relation to a party, any subsidiary or holding company from time to time of
that party, and any subsidiary from time to time of a holding company of that party,
where the terms “holding company” and “subsidiary” are as defined in section 1159 of the Companies Act 2006.
Agreement: the Head Sheet entered into by the parties and these Terms of Service.
Authorised Users: those employees, agents and independent contractors of the Client
who are authorised by the Client and Element Human to use the Services and the
Documentation as set out in the Head Sheet.
Bespoke Components: the bespoke components set out in the Head Sheet (if any) and any additional bespoke components agreed between the parties from time to time in accordance with a Change Notice.
Business Day: a day other than a Saturday, Sunday or public holiday in England when
banks in London are open for business.
Change of Control: shall be as defined in section 1124 of the Corporation Tax Act 2010, and
the expression change of control shall be construed accordingly.
Change Notice: has the meaning given to it in clause 10.4.
Client Data: any data input directly by the Client or Authorised Users onto the Platform for the purpose of using the Platform, the Services or facilitating the Client’s use of the Services. For the avoidance of doubt, Project Data is part of the Client Data, but Participant Data is not part of the Client Data.
Confidential Information: information that is proprietary or confidential and is either
clearly labelled as such or identified as Confidential Information in clause 13.6 or clause 13.7.
Controller, processor, data subject, personal data, personal data breach, processing
and appropriate technical and organisational measures: as defined in the Data
Data Protection Legislation: the UK Data Protection Legislation and all other legislationand regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications).
Derived Data: any data or information provided to the Client by Element Human as part of the Bespoke Components or the Standard Features of the Platform which is derived from the Participant Data.
Design Sprint: the provision of certain design services by Element Human to the Client in order to determine the Bespoke Components.
Documentation: any document made available to the Client by Element Human online
via www.elementhuman.com or such other web address notified by Element Human to the Client from time to time which sets out the user instructions or guidance notes for the Platform.
Effective Date: the date set out in the Head Sheet.
Element Human: Element Human Limited, a company incorporated and registered in
England and Wales with company number 08587003 whose registered office is at 7 Savoy Court, London WC2R 0EX.
Enhanced Support Fees: the fees payable by the Client to Element Human for any
enhanced support Element Human agrees to provide to the Client. Enhanced Support
Fees are due for the support options referred to as Self Service, Lite Service, Guided Service and Full Service in the relevant Policy.
Fair Use Policy: Element Human’s fair use policy which forms part of the Policies.
Fees: the Annual Subscription Fee, any Subscription Overage Fees and any Additional Fees payable by the Client to Element Human in accordance with the Agreement.
Group: means Element Human and its Affiliates.
Group’s Business: means the business carried out by Element Human and/or its Affiliates from time to time.
Initial Subscription Term: the initial term of the Agreement as set out in the Head Sheet.
Normal Business Hours: 9.30 am to 5.00 pm local UK time, each Business Day.
Onward Services: the use of the Derived Data to provide services to third parties.
Panel Participant Fees: means the fees payable (if any) by the Client to Element Human for sourcing Participants through Panel Providers.
Panel Providers: means third party panel providers who provide Participants, whether or not this functionality has been integrated directly into the Platform.
Participant: means a respondent or potential respondent to an Activity.
Participant Data: means the data directly provided by or derived from Participants or a
Panel Provider to Element Human including the Participants’ responses to survey
questions asked and video images.
Platform: means the Element Human Platform made available at
workbench.elementhuman.com or such other website notified to the Client by
Element Human from time to time as amended by Element Human from time to time
including, where applicable, the Bespoke Components.
Policies: Element Human’s business policies made available at
www.elementhumanhuman.com, as updated from time to time.
Premium Features Fees: means the fees payable by the Client to Element Human for use of any features of the Platform other than the Standard Features or the Bespoke
Project Data: means the content and its associated information which is being assessed within an Activity;
Renewal Period: as defined in clause 15.1.
Services: (i) access to and use of the Standard Features of the Platform; (ii) access to and use of the Bespoke Components (if any) through the Platform; and (iii) subject to
payment of all applicable fees, any other services agreed between the parties from time to time.
Standard Features: all features of the Platform other than the Bespoke Components and those features that Element Human designates, in its sole discretion, as premium features from time to time.
Subscription Period: each of the Initial Subscription Term and the Renewal Periods
Subscription Term: has the meaning given in clause 16.1 (being the Initial Subscription
Term together with any subsequent Renewal Periods).
Support Services Policy: Element Human’s policy for providing support in relation to the Platform made available at: https://support.elementhuman.com/en/articles/4457397-technical-support
Third Party Data: means data belonging to a third party.
UK Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the Data Protection Act 2018; 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) as amended.
Unit: a single (one) piece of creative content, asset, or other stimulus in still or video form which is for use in a single (one) environment or channel and which is of a maximum length of 5 minutes and which is tested on or viewed by no less than 50 individual Participants (note that full results will not be provided for Participant numbers less than 50) and no more than 500 individual Participants (save that, for each Unit or multiple thereof, an allowable overage of 49 Participants shall apply, so that testing on 540 Participants shall count as one Unit, 1040 Participants shall count as two Units and 1090 Participants shall count as three Units). For the avoidance of doubt and by way of example: (a) when multiple pieces of creative content, assets, or other stimuli are tested within one activity and through the Element Human feature which allows them to be tested together or at the same time (referred to as the “multi-stim feature”), each will be considered to be a separate Unit and so Unit charges shall apply for each of them which are tested; (b) a piece of stimulus of 12 minutes long shall be treated as three Units; and (c) a piece of stimulus tested on or viewed by 850 individual Participants shall be treated as two Units.
Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by rearranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
Vulnerability: a weakness in the computational logic (for example, code) found in
software and hardware components that when exploited, results in a negative impact to the confidentiality, integrity, or availability, and the term Vulnerabilities shall be construed accordingly.
1.2 Clause, schedule and paragraph headings are included for reference only and shall not affect the interpretation of the Agreement.
1.3 A person includes an individual, corporate or unincorporated body (whether or
not having separate legal personality).
1.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.5 Unless the context otherwise requires, words in the singular shall include the
plural and in the plural shall include the singular.
1.6 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.7 A reference to a statute or statutory provision is a reference to it as it is in force as at the date of the Agreement.
1.8 A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of the Agreement under that statute or statutory provision.
1.9 A reference to writing or written includes email but not faxes.
1.10 References to clauses and schedules are to the clauses and schedules of the Agreement; references to paragraphs are to paragraphs of the relevant schedule to the Agreement.
1.11 Any words following the terms “including”, “include”, “in particular”, “for example” or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
2. PLATFORM LICENCE AND RESTRICTIONS
2.1 Subject to the Client paying the Fees, the restrictions set out in this clause 2 and the other terms and conditions of the Agreement, Element Human hereby grants to the Client a non-exclusive, non-transferable right, without the right to grant sublicenses, to permit the Authorised Users to use the Services and the Documentation during the Subscription Term.
2.2 In relation to the Authorised Users, the Client undertakes that:
(a) each Authorised User shall keep a secure password for their use of the Services and, where relevant, the Documentation, that such password shall be changed no less frequently than every 90 days and that each Authorised User shall keep their password confidential;
(b) it shall maintain a written, up to date list of current Authorised Users and provide such list to Element Human within 5 Business Days of Element Human’s written request at any time or times; and
(c) if any password or login details have been provided to any individual who is not an Authorised User, then without prejudice to Element Human’s other rights, Element Human may disable or require the Client to disable such password and login details.
2.3 The Client shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:
(a) is unlawful, harmful, threatening, defamatory, obscene, sexist, infringing, harassing or racially or ethnically offensive;
(b) infringes any third party’s copyright, trade marks or other intellectual property;
(c) facilitates illegal activity;
(d) depicts sexually explicit images;
(e) promotes unlawful violence;
(f) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
(g) is illegal or causes damage or injury to any person or property, and Element Human reserves the right, without liability or prejudice to its other rights, to disable the Client’s access to any material that breaches the provisions of this clause.
2.4 The Client shall not:
(a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under the Agreement:
(i) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Platform (including, without limitation any Bespoke Components and/or Documentation (as applicable) in any form or media or by any means; or
(ii) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Platform;
(b) access all or any part of the Platform, the Services and Documentation in order to build a product or service which competes with the Platform, the Services and/or the Documentation;
(c) except where expressly permitted in the Head Sheet, use the Platform, the Services and/or the Documentation to provide services to third parties and where such use is expressly permitted in the Head Sheet, any such use shall only be permitted to the extent it is expressly set out in the Head Sheet;
(d) subject to clause 2.1 and the Head Sheet, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise make the Platform, the Services and/or Documentation available to any third party except the Authorised Users; Confidential | Element Human Limited | 7 Savoy Ct, London, UK WC2R 0EX | 08587003
(e) attempt to obtain, or assist third parties in obtaining, access to the Platform, the Services, the Documentation and/or any Third Party Data, other than as permitted under the Agreement;
(f) introduce, or permit the introduction of, any Virus or Vulnerability into Element Human’s network and information systems; or
(g) interfere with or disrupt the integrity or performance of the Platform or the data contained therein.
2.5 The Client shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services, the Platform, and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify Element Human.
2.6 The Client’s use of the Services shall be subject at all times to the following restrictions:
(a) the Client may (subject to the availability of the Platform, the prompt payment of Fees due and compliance with the Fair Use Policy) use the Platform and the Services for an unlimited number of Units within each Year, with each Unit consumed above the Annual Maximum Unit Level in a Year incurring the relevant Subscription Overage Fee; and
(b) any additional restrictions set out in the Head Sheet.
2.7 The rights provided under this clause 2 are, save as otherwise expressed in the Head Sheet, granted to the Client only, and shall not be considered granted to any Affiliate of the Client.
2.8 Where the Head Sheet permits the Client to provide Onward Services, the following restrictions shall apply in relation to such Onward Services:
(a) the Client shall not represent itself as an agent of Element Human for any purpose;
(b) the Client shall not give any condition or warranty or make any representation. on Element Human’s behalf or commit Element Human to any contracts; and
(c) the Client shall not incur any liability on behalf of Element Human, howsoever arising.
2.9 The Client acknowledges and agrees that any provision of Onward Services shall be at the Client’s sole risk and the Client agrees to indemnify Element Human, its directors, officers and employees from all and any claims, causes of action, damages, judgments, settlements, and/or costs asserted by a third party or the Client as a result of or in connection with such Onward Services.
3.1 Element Human shall, during the Subscription Term, provide the Services and make available the Documentation to the Client on and subject to the terms of the Agreement.
3.2 Element Human shall use commercially reasonable endeavours to make the Platform available 24 hours a day, seven days a week, except for periods of maintenance.
3.3 The Client shall ensure that its use of the Platform complies with the Fair Use Policy.
3.4 Element Human will, as part of the Services and at no additional cost to the Client,
provide the Client with Element Human’s standard customer support services during
Normal Business Hours in accordance with Element Human’s Support Services Policy in effect at the time that the Services are provided.
3.5 Without prejudice to any other provision of the Agreement, the Client acknowledges and agrees that fees additional to the Subscription Fee and Subscription Overage Fees may be payable by the Client to Element Human from time to time including:
(a) fees for any Bespoke Components;
(b) any Premium Features Fees;
(c) fees for any Design Sprints;
(d) any Panel Participant Fees;
(e) any Enhanced Support Fees;
(f) any fees payable under the Fair Use Policy; and
(g) any other additional fees due to Element Human from the Client under the terms of the Agreement from time to time, such fees together being the “Additional Fees”.
4. CLIENT DATA
4.1 As between Element Human and the Client, the Client shall own all right, title and
interest in and to the Client Data and the Client shall have sole responsibility for the
legality, reliability, integrity, accuracy and quality of all such Client Data.
4.2 The Client grants to Element Human a non-exclusive, worldwide, royalty free,
irrevocable, sub-licensable, transferable, perpetual licence to use the Client Data:
(a) to provide the Services and the Documentation;
(b) to manage, improve and protect the Platform, the Group and the Group’s Business; and
(c) in relation to the Project Data only, to use the Project Data for the purposes of feature-tagging, Platform and Service development and research purposes.
4.3 Element Human shall follow its archiving procedures for Client Data as may be
amended by Element Human in its sole discretion from time to time. In the event of any loss or damage to Client Data, the Client’s sole and exclusive remedy against Element Human shall be for Element Human to use reasonable commercial endeavours to restore the lost or damaged Client Data from the latest back-up of such Client Data maintained by Element Human. Element Human shall not be responsible for any loss, destruction, alteration or disclosure of Client Data caused by any third party (except those third parties sub-contracted by Element Human to perform services related to Client Data maintenance and back-up).
4.4 Whilst the Client may, where agreed with Element Human, source some or all of the Participants for an Activity (via a Panel Provider or otherwise), the Client will not source nor directly receive or process any Participant Data. All Participant Data will be directly sourced and received and processed by Element Human before the Client can access the related Derived Data.
5. DATA PROTECTION
5.1 Both parties will comply with all applicable requirements of the Data Protection
Legislation. This clause 5 is in addition to, and does not relieve, remove or replace, a
party’s obligations or rights under the Data Protection Legislation.
5.2 Element Human shall ensure as data controller that it has all necessary and
appropriate consents and notices in place to enable its lawful collection and processing of Participant Data as required in order to allow it to provide the Services.
5.3 The Derived Data shall be created from the Participant Data as part of the Services. The Derived Data shall be derived from, but shall not contain, any personal data.
5.4 The Client shall assist Element Human (where reasonably requested to do so):
(a) at the Client’s own cost, in responding to any request from a data subject made to any member of the Group in relation to the Agreement; and
(b) at Element Human’s cost, in ensuring compliance with any of the Group’s obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators.
5.5 The Client shall notify Element Human without undue delay and, in any event within 24
hours, on becoming aware of a personal data breach which relates to personal data
processed under or in relation to the Agreement.
6. PANEL PROVIDERS, CUSTOMER PARTICIPANTS AND OTHER THIRD PARTY PROVIDERS
6.1 The Client acknowledges that Element Human may, via the Platform, enable or assist it to access and request Participants for Activities from Panel Providers (where such option has been chosen by the Client). The Client acknowledges and agrees that the Panel Provider is and shall be responsible for sourcing such Participants and that the Client’s use of this feature is subject to any terms and conditions the Panel Provider imposes from time to time.
6.2 Element Human makes no representation, warranty or commitment in relation to any Participants provided by any Panel Provider and the Client’s sole and exclusive remedy against Element Human in relation to any Participants provided by a Panel Provider shall be for Element Human to refund the portion of the Fees paid under clause 6.3, if any, that relate to such Participants.
6.3 The Client acknowledges and agrees that the provision of Participants is subject to the payment by the Client of Panel Participant Fees.
6.4 Without prejudice to the Client’s other obligations under the Agreement, where the Client accesses or obtains its own Participants in relation to its Units, the Client shall be responsible for:
(a) obtaining such Participants; and
(b) directly paying such Participants any fees due.
7. ELEMENT HUMAN’S OBLIGATIONS
7.1 Element Human undertakes that the Services will be performed with reasonable skill and care.
7.2 The undertaking at clause 7.1 shall not apply to the extent of any non-conformance
which is caused by use of the Services contrary to Element Human’s instructions, or
modification or alteration of the Services by any party other than Element Human or
Element Human’s duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, Element Human will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Client with an alternative means of accomplishing the desired performance or (in the
event the non-availability of the Service cannot be remedied on a timely basis) provide a refund to the Client of the Fees paid for the undelivered Service. The foregoing constitutes the Client’s sole and exclusive remedy for any breach of the undertaking set out in clause 7.1.
7.3 Element Human:
(a) does not warrant that:
(i) the Client’s use of the Platform will be uninterrupted or error-free;
(ii) the Services, Documentation, Derived Data and/or any other information obtained by the Client through the Services will meet the Client’s requirements; or
(iii) the Platform or the Services will be free from Vulnerabilities; and
(b) is 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 the Client acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
7.4 The Agreement shall not prevent Element Human from entering into similar
agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under the Agreement.
7.5 Element Human warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the provision of the Platform under the Agreement.
7.6 Element Human warrants each of the following:
(a) without affecting its other obligations under the Agreement, it will comply with all applicable laws and regulations with respect to the provision of the Services and Platform under the Agreement, including compliance with all applicable Data Protection Legislation in respect of its procuring and processing of any Participant Data by it or via its Platform in its capacity as data controller;
(b) that the Platform is capable of providing the Services;
(c) to procure, maintain and secure sufficient network connections and telecommunications links between its system and the internet for the purposes of providing the Services and Platform in accordance with good industry practice;
(d) not to give any condition or warranty or make any representation or commitment on the Client’s behalf; and
(e) use reasonable endeavours to ensure that the Service is available 99.99% of the time.
8. THE CLIENT’S OBLIGATIONS
The Client shall:
(a) provide Element Human with:
(i) all necessary cooperation in relation to the Agreement; and
(ii) all necessary access to such information as may be required by Element Human in order to provide the Services, including but not limited to Client Data;
(b) comply with all applicable laws and regulations with respect to its activities
under the Agreement;
(c) carry out all other Client responsibilities set out in the Agreement in a timely
and efficient manner. In the event of any delays in the Client’s provision of such
assistance as agreed by the parties, Element Human may adjust any agreed
timetable or delivery schedule as reasonably necessary;
(d) ensure that the Authorised Users use the Services and the Documentation in accordance with the terms and conditions of the Agreement and shall be responsible for any Authorised User’s breach of the Agreement;
(e) be responsible for all activity occurring under the Client’s accounts, including all acts and omissions of any third party who access the Platform using the Client’s logon details;
(f) obtain and shall maintain all necessary licences, consents, and permissions necessary for Element Human, its contractors and agents to perform their obligations under the Agreement, including without limitation ensuring that it has all rights necessary to upload the Client Data to the Platform;
(g) ensure that its network and systems comply with the relevant specifications provided by Element Human from time to time; and
(h) be, to the extent permitted by law and except as otherwise expressly provided in the Agreement, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to Element Human’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Client’s network connections or telecommunications links or caused by the internet.
9. DESIGN SPRINT AND BESPOKE COMPONENTS
9.1 Element Human shall develop for the Client and make available on the Platform the
Bespoke Components (if any) within a reasonable time period and Element Human grants to the Client a non-exclusive licence to use the Bespoke Components except where otherwise set out in the Head Sheet.
9.2 Element Human shall own all intellectual property rights in and to the Bespoke
Components and, except where otherwise set out in the Head Sheet, shall be entitled to make available such Bespoke Components to third parties and/or use such Bespoke Components in any manner at its sole discretion.
9.3 If the Client wishes to make any change to the Bespoke Components, including,
without limitation, any modification to a Bespoke Component, or any part thereof, or any additions to the Bespoke Components, the Client must submit a written request for change to Element Human containing as much information as is necessary to allow
Element Human to determine the feasibility, time frame, cost and other practicalities of making such change.
9.4 Element Human will, within a reasonable period of time from receiving such written request, confirm to the Client whether or not it can make such change to the Bespoke Components and, if so, the terms on which such change would be made including, without limitation, the additional time frame and cost for so doing (the “Change Notice”).
9.5 The Client shall confirm to Element Human in writing within 7 days of receiving the
Change Notice whether or not it wishes such change to be made on the terms of the
Change Notice and, where the Client confirms it does want such to be made, Element
Human shall make such change to the Bespoke Components on the terms set out in the Change Notice and the Client shall be bound by such terms.
9.6 Element Human reserves the right to make at its sole discretion: (a) non-material
changes to the Bespoke Components; (b) changes to the "look and feel" of the Bespoke Components; (c) changes to address one or more Vulnerabilities in or related to the Bespoke Components; and (d) any changes which Element Human believes, in its sole discretion, are necessary to ensure compliance with any applicable law or to minimise the risk of any claim against Element Human or its Affiliates.
9.7 Notwithstanding any other clause of the Agreement, the Client shall be responsible for obtaining all rights in relation to any Client Data as are required in relation to the Agreement.
10. CHARGES AND PAYMENT
10.1 The Client shall pay to Element Human:
(a) the Subscription Fee;
(b) any Subscription Overage Fee; and
(c) any Additional Fees payable by the Client in accordance with the Agreement.
10.2 Element Human shall invoice the Client for the Fees in accordance with the payment schedule set out in the Head Sheet or, if no payment schedule is set out in the Head Sheet, Element Human shall invoice the Client as follows:
(a) the Subscription Fee on the Effective Date and at the start of each subsequent Subscription Period;
(b) any Subscription Overage Fees following the end of the calendar month in which such Fees have been incurred; and
(c) any Additional Fees following the end of the calendar month in which such Fees have been incurred.
10.3 The Client shall pay each invoice within 30 days of the date of such invoice, save that the initial Subscription Fee shall be due and payable no later than the Effective Date.
10.4 If Element Human has not received payment for any Fees within 5 days of the due date for such payment, and without prejudice to any other rights and remedies of Element Human:
(a) Element Human may, without liability to the Client, disable the Client’s password, account and access to all or part of the Platform and Element Human shall be under no obligation to provide any or all of the Services whilst the invoice(s) concerned remain unpaid; and
(b) interest shall accrue on a daily basis on such due amounts at an annual rate equal to 4% over the then current base lending rate of Element Human’s bankers in the UK from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
10.5 All amounts and fees stated or referred to in the Agreement:
(a) shall be payable in pounds sterling;
(b) are, subject to clause 7.2, non-cancellable and non-refundable; and
(c) are exclusive of value added tax, which shall be added to Element Human’s invoice(s) at the appropriate rate.
10.6 All amounts due under the Agreement shall be paid by the Client to Element Human in full without any set-off, counterclaim, deduction or withholding.
10.7 Element Human shall be entitled to increase the Fees:
(a) in relation to the Subscription Fee and any Subscription Overage Fees, at least 45 days prior to the start of each Subscription Period after the Initial Subscription Term; and
(b) in relation to the Additional Fees, upon prior notice to the Client.
11. PROPRIETARY RIGHTS
11.1 The Client acknowledges and agrees that Element Human and/or its licensors own all intellectual property rights in the Services, the Platform, the Derived Data, the Participant Data and the Documentation. Except as expressly stated herein, the Agreement does not grant the Client any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of the Services, the Platform, the Derived Data (see clause 11.5 for rights granted in the Derived Data) or the Documentation.
11.2 The Client shall, at the expense of Element Human, take all such steps as Element
Human may reasonably require to assist the Client in maintaining the validity and
enforceability of the intellectual property rights of Element Human during the term of the Agreement.
11.3 The Client shall promptly give notice in writing to Element Human in the event that it becomes aware of:
(a) any infringement or suspected infringement of any intellectual property rights in or relating to the Platform, the Services, the Derived Data and/or the Documentation; or
(b) any claim that the Platform, the Services, the Derived Data and/or the Documentation infringes the rights of any third party.
11.4 Element Human confirms that it has all the rights in relation to the Services and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of the Agreement.
11.5 Element Human grants to the Client a non-exclusive, worldwide licence to use the
Derived Data for internal business purposes only and, where expressly permitted in the Head Sheet and at the Client’s own risk and subject to all other terms and conditions of the Agreement, to provide the Onward Services.
11.6 The Client grants to Element Human a non-exclusive, worldwide licence to use its
name and associated trademark(s) and logo(s) for the purposes of identifying the Client as a client of Element Human on Element Human’s website and other marketing materials.
12. CONFIDENTIALITY AND COMPLIANCE WITH POLICIES
12.1 Each party may be given access to Confidential Information from the other party in
order to perform its obligations under the Agreement. A party’s Confidential Information shall not be deemed to include information that:
(a) is or becomes publicly known other than through any act or omission of the receiving party;
(b) was in the other party’s lawful possession before the disclosure;
(c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
(d) is independently developed by the receiving party, which independent development can be shown by written evidence.
12.2 Subject to clauses 4.2, 12.4, 12.5 and 12.8, 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 the Agreement.
12.3 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 the Agreement.
12.4 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, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 12.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
12.5 Each party may make the other’s Confidential Information available to third parties where required for the performance of its obligations under the Agreement provided that the third party to whom such disclosure is made is subject to obligations of confidentiality on substantially the same terms as are set out in this clause 12.
12.6 The Client acknowledges that the details of the Services, the Platform, the
Documentation, the Participant Data and the results of any performance tests of the
Services, constitute Element Human’s Confidential Information.
12.7 Element Human acknowledges that the Client Data may be the Confidential Information of the Client.
12.8 The Client agrees that Element Human may identify the Client as a customer of
Element Human and may use the Client’s company name and logo for marketing and
promotional purposes and the Client grants to Element Human all rights required for
Element Human to be able to do so.
12.9 In performing its obligations under, and receiving its benefits arising from, the Agreement the Client shall comply with the Policies.
12.10 The Client shall comply with all applicable laws, regulations and sanctions relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010.
12.11 The above provisions of this Clause 12 shall survive termination of the Agreement, however arising.
13.1 The Client shall defend, indemnify and hold harmless Element Human, its officers,
directors and employees against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with:
(a) the Client’s use of the Services and/or Documentation other than:
(i) as permitted by Element Human; or
(ii) for its own internal business use;
(b) a claim that the use, storage or processing of the Client Data infringes the intellectual property rights of, or otherwise causes harm to, any third party; and
(c) a claim that Element Human’s processing of Client Data under or in relation to the Agreement breaches applicable Data Protection Legislation, provided that the Client is given prompt notice of any such claim.
13.2 Element Human shall defend the Client, its officers, directors and employees against any claim that the Client’s use of the Services or Documentation in accordance with the Agreement infringes any United Kingdom patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Client for any amounts awarded against the Client in judgment or settlement of such claims, provided that:
(a) Element Human is given prompt notice of any such claim;
(b) the Client provides reasonable co-operation to Element Human in the defence
and settlement of such claim, at Element Human’s expense; and
(c) Element Human is given sole authority to defend or settle the claim.
13.3 In the defence or settlement of any claim, Element Human may procure the right for the Client to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate the Agreement on 2 Business Days’ notice to the Client without any additional liability or obligation to pay liquidated damages or other additional costs to the Client.
13.4 In no event shall Element Human, its employees, agents and subcontractors be liable to the Client to the extent that the alleged infringement is based on:
(a) a modification of the Services or Documentation by anyone other than Element Human;
(b) the Client’s use of the Services or Documentation in a manner contrary to the instructions given to the Client by Element Human;
(c) the Client’s use of the Services or Documentation after notice of the alleged or actual infringement from Element Human or any appropriate authority; or
(d) or relates to any Client Data.
13.5 The foregoing states the Client’s sole and exclusive rights and remedies, and Element Human’s (including Element Human’s employees, agents and subcontractors) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
14. LIMITATION OF LIABILITY
14.1 Except as expressly and specifically provided in the Agreement:
(a) the Client assumes sole responsibility for results obtained from the use of the Services and the Documentation by the Client, and for conclusions drawn from such use. Element Human shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Element Human by the Client in connection with the Services, or any actions taken by Element Human at the Client’s direction;
(b) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute, common law or otherwise are, to the fullest extent permitted by applicable law, excluded from the Agreement; and
(c) the Services and the Documentation are provided to the Client on an “as is” basis.
14.2 Nothing in the Agreement excludes the liability of Element Human:
(a) for death or personal injury caused by Element Human’s negligence; or
(b) for fraud or fraudulent misrepresentation.
14.3 Subject to clause 14.2:
(a) Element Human shall not in any circumstances be liable whether in tort (including for negligence or breach of statutory duty howsoever arising), contract, misrepresentation (whether innocent or negligent), restitution or otherwise for:
(i) loss of profits
(ii) loss of business,
(iii) depletion of goodwill or similar losses;
(iiii) loss of anticipated savings;
(iv) loss or corruption of data or information;
(v) loss of use;
(vi) pure economic loss;
(vii) fines or penalties imposed on the Client by any regulatory authority including, without limitation, the UK supervisory authority for data protection from time to time; or
(viii) any special, indirect or consequential loss, costs, damages, charges or expenses, however arising under or in relation to the Agreement; and
(b) Element Human’s total aggregate liability in contract (including without limitation in respect of the indemnity at clause 13.2), tort (including without limitation negligence or breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in relation to issues arising in any Year in connection with the performance or contemplated performance of the Agreement shall be limited to the total Fees actually paid by the Client to Element Human under the Agreement in that Year.
15. TERM AND TERMINATION
15.1 The Agreement shall commence on the Effective Date and, unless otherwise
terminated as provided in this clause 15, shall continue for the Initial Subscription Term
and, thereafter, the Agreement shall be automatically renewed for successive periods of twelve (12) months (each a “Renewal Period”), unless:
(a) either party notifies the other party of termination, in writing, at least 30 days before the end of the Initial Subscription Term or any Renewal Period, in which case the Agreement shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or
(b) otherwise terminated in accordance with the provisions of the Agreement; and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the “Subscription Term”.
15.2 Without affecting any other right or remedy available to it, Element Human may
terminate the Agreement with immediate effect by giving written notice to the Client if:
(a) the Client fails to pay any amount due under the Agreement on the due date
for payment and remains in default not less than 10 days after being notified in
writing to make such payment;
(b) the Client repeatedly breaches any of the terms of the Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of the Agreement; or
(c) the Client purports to assign any of its rights or obligations under the Agreement.
15.3 For the avoidance of doubt, a breach of any of clauses 2.4 and 2.7 are non-exclusive examples of a material breach for the purposes of this clause.
15.4 Without affecting any other right or remedy available to it, either party may terminate the Agreement with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of any other term of the Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
(b) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, as if the words “it is proved to the satisfaction of the court” did not appear in sections 123(1)(e) or 123(2) of the Insolvency Act 1986;
(c) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(d) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(e) an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party;
(f) the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;
(g) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
(h) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within 14 days;
(i) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 15.4(d) to clause 15.4(h) (inclusive); or
(j) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
15.5 Element Human may terminate the Agreement at any point by providing the Client with thirty (30) days’ written notice.
15.6 On termination of the Agreement for any reason:
(a) subject to clause 15.6(b), all licences granted by Element Human to the Client
under the Agreement shall immediately terminate and the Client shall
immediately cease all use of the Services and the Documentation;
(b) the Client shall be permitted to use the Derived Data in perpetuity in accordance with the licence granted under clause 12.5;
(c) the Client will immediately cease to provide any Onward Services;
(d) the Client shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to Element Human;
(e) Element Human may destroy or otherwise dispose of any of the Client Data in its possession unless otherwise agreed between the parties, subject at all times to all applicable law; and
(f) any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced.
15.7 Following termination of the Agreement Element Human shall adopt the following
approach to the retention of Client Data:
(a) Client Data shall be deleted within 30 days of the date of termination, save as set out in clause 15.7(b); and
(b) Client Data shall be retained and used for the purposes set out in clause 4.2(c).
15.8 The termination of the Agreement shall not of itself give rise to any liability on the part of Element Human to pay any compensation to the Client for loss of profits or goodwill, to reimburse the Client for any costs relating to or resulting from such termination, or for any other loss or damage.
16. FORCE MAJEURE
Element Human shall have no liability to the Client under the Agreement to the extent that it is prevented from or delayed in performing its obligations under the Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of Element Human or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm, pandemic, epidemic or default of suppliers or subcontractors, provided that the Client is notified of such an event and its expected duration.
To the extent of any inconsistency between any of the provisions in the Head Sheet and these Terms of Service, the provisions of the Head Sheet shall take precedence.
No variation of the Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives) provided that Element Human may at any time amend: (i) the Fees as permitted by the Agreement; (ii) the Policies and the Client shall be bound by such amended Policies once they have been made available to the Client, including through Element Human’s website; (iii) the Agreement to the extent that such amendment is required by Data Protection Legislation.
No failure or delay by a party to exercise any right or remedy provided under the
Agreement or by law shall constitute a waiver of that or any other right or remedy, nor
shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
20. RIGHTS AND REMEDIES
Except as expressly provided in the Agreement, the rights and remedies provided under the Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
21.1 If any provision or part-provision of the Agreement is or becomes invalid, illegal or
unenforceable, it shall be deemed deleted, but that shall not affect the validity and
enforceability of the rest of the Agreement.
21.2 If any provision or part-provision of the Agreement is deemed deleted under clause 21.1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
22. ENTIRE AGREEMENT
22.1 The Agreement constitutes the entire agreement relating to its subject matter
between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
22.2 Each party acknowledges that in entering into the Agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or
warranty (whether made innocently or negligently) that is not set out in the Agreement.
22.3 Each party agrees that it shall have no claim for innocent or negligent
misrepresentation or negligent misstatement based on any statement in the Agreement.
22.4 Nothing in this clause shall limit or exclude any liability for fraud.
23.1 The Client shall not, without the prior written consent of Element Human, assign,
transfer, charge, sub-contract or deal in any other manner with all or any of its rights or
obligations under the Agreement.
23.2 Element Human may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Agreement.
24. NO PARTNERSHIP OR AGENCY
Nothing in the Agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
25. THIRD PARTY RIGHTS
The Agreement does not confer any rights on any person or party (other than the parties to the Agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
26.1 Any notice required to be given under the Agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in the Agreement, or such other address as may have been notified by that party for such purposes, or sent by email to the other party’s email address as set out in the Agreement (for Element Human, this shall be to
26.2 A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by email shall be deemed to have been received at the time of transmission (as shown by the timed printout obtained by the sender).
27. GOVERNING LAW
The Agreement and any dispute or claim arising out of or in connection with it or its
subject matter or formation (including non-contractual disputes or claims) shall be
governed by and construed in accordance with the law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Agreement or its subject matter or formation (including non-contractual disputes or claims).